(Reprinted with amendments adopted on June 2, 2003)
THIRD REPRINT A.B. 460
Assembly Bill No. 460–Committee on Judiciary
March 24, 2003
____________
Referred to Committee on Judiciary
SUMMARY—Makes various changes regarding manufacture, sale and use of tobacco products. (BDR 15‑1283)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State: Yes.
~
EXPLANATION
– Matter in bolded italics is new; matter
between brackets [omitted material] is material to be omitted.
Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).
AN ACT relating to tobacco; prohibiting smoking in certain video arcades and child care facilities; making various changes relating to the sale of tobacco products to and the purchase of those products by minors; making various changes regarding the sale, delivery and taxation of cigarettes; revising the duties and rights of manufacturers and distributors of cigarettes; revising the duties of the Department of Taxation; providing civil and criminal penalties; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
1-1 Section 1. NRS 202.2485 is hereby amended to read as
1-2 follows:
1-3 202.2485 As used in NRS 202.2485 to 202.2497, inclusive:
1-4 1. “Delivery sale” means any sale or distribution of a product
1-5 for which:
1-6 (a) The purchaser submits the order for the sale by means of a
1-7 telephonic or other method of voice transmission, the mail or any
1-8 other delivery service, or the Internet or any other online service;
1-9 or
1-10 (b) The product is delivered by mail or the use of another
1-11 delivery service, or by the seller or distributor or his agent.
2-1 2. “Delivery service” means any person engaged in the
2-2 commercial delivery of letters, packages or other containers.
2-3 3. “Distribute” includes furnishing, giving away or providing
2-4 products made from tobacco or samples thereof at no cost to
2-5 promote the product, whether or not in combination with a sale.
2-6 [2.] 4. “Health authority” means the district health officer in a
2-7 district, or his designee, or, if none, the State Health Officer, or his
2-8 designee.
2-9 Sec. 1.5. NRS 202.2491 is hereby amended to read as follows:
2-10 202.2491 1. Except as otherwise provided in subsections 5
2-11 and 6 and NRS 202.24915, the smoking of tobacco in any form is
2-12 prohibited if done in any:
2-13 (a) Public elevator.
2-14 (b) Public building.
2-15 (c) Public waiting room, lobby or hallway of any:
2-16 (1) Medical facility or facility for the dependent as defined in
2-17 chapter 449 of NRS; or
2-18 (2) Office of any chiropractor, dentist, physical therapist,
2-19 physician, podiatric physician, psychologist, optician, optometrist or
2-20 doctor of Oriental medicine.
2-21 (d) Hotel or motel when so designated by the operator thereof.
2-22 (e) Public area of a store principally devoted to the sale of food
2-23 for human consumption off the premises.
2-24 (f) Child care facility.
2-25 (g) Bus used by the general public, other than a chartered bus, or
2-26 in any maintenance facility or office associated with a bus system
2-27 operated by any regional transportation commission.
2-28 (h) School bus.
2-29 (i) Video arcade.
2-30 2. The person in control of an area listed in paragraph (c), (d),
2-31 (e) [, (f)] or (g) of subsection 1:
2-32 (a) Shall post in the area signs prohibiting smoking in any place
2-33 not designated for that purpose as provided in paragraph (b).
2-34 (b) May designate separate rooms or portions of the area which
2-35 may be used for smoking, except for a room or portion of the area of
2-36 a store described in paragraph (e) of subsection 1 if the room or
2-37 portion of the area:
2-38 (1) Is leased to or operated by a person licensed pursuant to
2-39 NRS 463.160; and
2-40 (2) Does not otherwise qualify for an exemption set forth in
2-41 NRS 202.24915.
2-42 3. The person in control of a public building:
2-43 (a) Shall post in the area signs prohibiting smoking in any place
2-44 not designated for that purpose as provided in paragraph (b).
3-1 (b) Shall, except as otherwise provided in this subsection,
3-2 designate a separate area which may be used for smoking.
3-3 A school district which prohibits the use of tobacco by pupils need
3-4 not designate an area which may be used by the pupils to smoke.
3-5 4. The operator of a restaurant with a seating capacity of 50 or
3-6 more shall maintain a flexible nonsmoking area within the restaurant
3-7 and offer each patron the opportunity to be seated in a smoking or
3-8 nonsmoking area.
3-9 5. A business which derives more than 50 percent of its gross
3-10 receipts from the sale of alcoholic beverages or 50 percent of its
3-11 gross receipts from gaming operations may be designated as a
3-12 smoking area in its entirety by the operator of the business.
3-13 6. The smoking of tobacco is not prohibited in:
3-14 (a) Any room or area designated for smoking pursuant to
3-15 paragraph (b) of subsection 2 or paragraph (b) of subsection 3.
3-16 (b) A licensed gaming establishment. A licensed gaming
3-17 establishment may designate separate rooms or areas within the
3-18 establishment which may or may not be used for smoking.
3-19 7. [The person in control of a child care facility shall not allow
3-20 children in any room or area he designates for smoking pursuant to
3-21 paragraph (b) of subsection 2. Any such room or area must be
3-22 sufficiently separate or ventilated so that there are no irritating or
3-23 toxic effects of smoke in the other areas of the facility.
3-24 8.] As used in this section:
3-25 (a) “Child care facility” means an establishment [licensed
3-26 pursuant to chapter 432A of NRS to provide care for 13 or more
3-27 children.] operated and maintained to furnish care on a temporary
3-28 or permanent basis, during the day or overnight, to five or more
3-29 children under 18 years of age, if compensation is received for the
3-30 care of any of those children. The term does not include the home
3-31 of a natural person who provides child care.
3-32 (b) “Licensed gaming establishment” has the meaning ascribed
3-33 to it in NRS 463.0169.
3-34 (c) “Public building” means any building or office space owned
3-35 or occupied by:
3-36 (1) Any component of the University and Community
3-37 College System of Nevada and used for any purpose related to the
3-38 System.
3-39 (2) The State of Nevada and used for any public purpose,
3-40 other than that used by the Department of Corrections to house or
3-41 provide other services to offenders.
3-42 (3) Any county, city, school district or other political
3-43 subdivision of the State and used for any public purpose.
4-1 If only part of a building is owned or occupied by an entity
4-2 described in this paragraph, the term means only that portion of the
4-3 building which is so owned or occupied.
4-4 (d) “School bus” has the meaning ascribed to it in NRS 483.160.
4-5 (e) “Video arcade” means a facility legally accessible to
4-6 persons under 18 years of age which is intended primarily for the
4-7 use of pinball and video machines for amusement and which
4-8 contains a minimum of 10 such machines.
4-9 Sec. 2. NRS 202.24935 is hereby amended to read as follows:
4-10 202.24935 1. It is unlawful for a person to knowingly sell or
4-11 distribute cigarettes, cigarette paper, tobacco of any description or
4-12 products made from tobacco to a child under the age of 18 years
4-13 through [the use of the Internet.] a delivery sale.
4-14 2. A person who violates the provisions of subsection 1 shall
4-15 be punished by a fine of not more than $500 and a civil penalty of
4-16 not more than $500. Any money recovered pursuant to this section
4-17 as a civil penalty must be deposited in the same manner as money is
4-18 deposited pursuant to subsection 6 of NRS 202.2493.
4-19 3. Every person who sells or distributes cigarettes, cigarette
4-20 paper, tobacco of any description or products made from tobacco
4-21 through [the use of the Internet] a delivery sale shall adopt a policy
4-22 to prevent a child under the age of 18 years from obtaining
4-23 cigarettes, cigarette paper, tobacco of any description or products
4-24 made from tobacco from the person through [the use of the
4-25 Internet.] a delivery sale. The policy must include, without
4-26 limitation, a method for ensuring that the person who delivers such
4-27 items obtains the signature of a person who is over the age of 18
4-28 years when delivering the items, that the packaging or wrapping of
4-29 the items when they are shipped is clearly marked with the word
4-30 “cigarettes” or the words “tobacco products,” and that the person
4-31 complies with the provisions of 15 U.S.C. § 376. A person who fails
4-32 to adopt a policy pursuant to this subsection is guilty of a
4-33 misdemeanor and shall be punished by a fine of not more than $500.
4-34 Sec. 3. Chapter 62 of NRS is hereby amended by adding
4-35 thereto the provisions set forth as sections 4 and 5 of this act.
4-36 Sec. 4. 1. Except as otherwise provided in subsection 2, a
4-37 child under the age of 18 years shall not falsely represent that he
4-38 is 18 years of age or older to purchase or obtain cigarettes,
4-39 cigarette paper, tobacco of any description or products made from
4-40 tobacco.
4-41 2. Subsection 1 does not apply to a child who is assisting in
4-42 an inspection pursuant to NRS 202.2496.
4-43 Sec. 5. (Deleted by amendment.)
5-1 Sec. 6. NRS 62.040 is hereby amended to read as follows:
5-2 62.040 1. Except if the child involved is subject to the
5-3 exclusive jurisdiction of an Indian tribe, and except as otherwise
5-4 provided in this chapter, the court has exclusive original jurisdiction
5-5 in proceedings:
5-6 (a) Concerning any child living or found within the county who
5-7 is in need of supervision because he:
5-8 (1) Is a child who is subject to compulsory school attendance
5-9 and is a habitual truant from school;
5-10 (2) Engages in an act prohibited by section 4 of this act;
5-11 (3) Habitually disobeys the reasonable and lawful demands
5-12 of his parents, guardian or other custodian, and is unmanageable; or
5-13 [(3)] (4) Deserts, abandons or runs away from his home or
5-14 usual place of abode,
5-15 and is in need of care or rehabilitation. [The] A child who is in need
5-16 of supervision pursuant to this paragraph must not be considered a
5-17 delinquent.
5-18 (b) Concerning any child living or found within the county who
5-19 has committed a delinquent act. A child commits a delinquent act if
5-20 he violates a county or municipal ordinance or any rule or regulation
5-21 having the force of law, or he commits an act designated a crime
5-22 under the law of the State of Nevada.
5-23 (c) Concerning any child in need of commitment to an
5-24 institution for the mentally retarded.
5-25 2. For the purposes of subsection 1, each of the following acts
5-26 shall be deemed not to be a delinquent act, and the court does not
5-27 have jurisdiction of a person who is charged with committing such
5-28 an act:
5-29 (a) Murder or attempted murder and any other related offense
5-30 arising out of the same facts as the murder or attempted murder,
5-31 regardless of the nature of the related offense.
5-32 (b) Sexual assault or attempted sexual assault involving the use
5-33 or threatened use of force or violence against the victim and any
5-34 other related offense arising out of the same facts as the sexual
5-35 assault or attempted sexual assault, regardless of the nature of the
5-36 related offense, if:
5-37 (1) The person was 16 years of age or older when the sexual
5-38 assault or attempted sexual assault was committed; and
5-39 (2) Before the sexual assault or attempted sexual assault was
5-40 committed, the person previously had been adjudicated delinquent
5-41 for an act that would have been a felony if committed by an adult.
5-42 (c) An offense or attempted offense involving the use or
5-43 threatened use of a firearm and any other related offense arising out
5-44 of the same facts as the offense or attempted offense involving the
6-1 use or threatened use of a firearm, regardless of the nature of the
6-2 related offense, if:
6-3 (1) The person was 16 years of age or older when the offense
6-4 or attempted offense involving the use or threatened use of a firearm
6-5 was committed; and
6-6 (2) Before the offense or attempted offense involving the use
6-7 or threatened use of a firearm was committed, the person previously
6-8 had been adjudicated delinquent for an act that would have been a
6-9 felony if committed by an adult.
6-10 (d) A felony resulting in death or substantial bodily harm to the
6-11 victim and any other related offense arising out of the same facts as
6-12 the felony, regardless of the nature of the related offense, if:
6-13 (1) The felony was committed on the property of a public or
6-14 private school when pupils or employees of the school were present
6-15 or may have been present, at an activity sponsored by a public or
6-16 private school or on a school bus while the bus was engaged in its
6-17 official duties; and
6-18 (2) The person intended to create a great risk of death or
6-19 substantial bodily harm to more than one person by means of a
6-20 weapon, device or course of action that would normally be
6-21 hazardous to the lives of more than one person.
6-22 (e) Any other offense if, before the offense was committed, the
6-23 person previously had been convicted of a criminal offense.
6-24 3. If a child is charged with a minor traffic offense, the court
6-25 may transfer the case and record to a justice’s or municipal court if
6-26 the judge determines that it is in the best interest of the child. If a
6-27 case is so transferred:
6-28 (a) The restrictions set forth in subsection 7 of NRS 62.170 are
6-29 applicable in those proceedings; and
6-30 (b) The child must be accompanied at all proceedings by a
6-31 parent or legal guardian.
6-32 With the consent of the judge of the juvenile division, the case may
6-33 be transferred back to the juvenile court.
6-34 4. As used in this section, “school bus” has the meaning
6-35 ascribed to it in NRS 483.160.
6-36 Sec. 7. NRS 62.212 is hereby amended to read as follows:
6-37 62.212 1. Except as otherwise provided in subsection [3,] 4,
6-38 if the court finds that a child is within the purview of paragraph (a)
6-39 of subsection 1 of NRS 62.040 and has not previously been the
6-40 subject of a complaint under NRS 62.128 before committing the acts
6-41 for which the petition was filed, the court shall:
6-42 (a) Admonish the child to obey the law and to refrain from
6-43 repeating the acts for which the petition was filed, and maintain a
6-44 record of the admonition; and
7-1 (b) Refer the child, without adjudication, to services available in
7-2 the community for counseling, behavioral modification and social
7-3 adjustment.
7-4 2. Except as otherwise provided in subsection [3,] 4, a child
7-5 described in subsection 1 must not be adjudicated to be a child in
7-6 need of supervision unless a subsequent petition based upon
7-7 additional facts is filed with the court after admonition and referral
7-8 pursuant to [this subsection.
7-9 2.] that subsection.
7-10 3. A child who is:
7-11 (a) Less than 12 years of age must not be committed to or
7-12 otherwise placed in the Nevada Youth Training Center or the
7-13 Caliente Youth Center.
7-14 (b) Not adjudicated to be delinquent must not be committed to
7-15 or otherwise placed in the Nevada Youth Training Center, the
7-16 Caliente Youth Center or any other facility that provides
7-17 correctional care.
7-18 [3.] 4. The provisions of subsection 1 do not apply to a child
7-19 alleged to be in need of supervision because he is a habitual truant.
7-20 5. In addition to the actions set forth in subsection 1, a court
7-21 may order a child who engages in an act prohibited by section 4 of
7-22 this act to perform community service. Community service so
7-23 ordered must be performed:
7-24 (a) For and under the supervising authority of a county, city,
7-25 town or other political subdivision or agency of this state or a
7-26 charitable organization that renders service to the community or
7-27 its residents; and
7-28 (b) At the child’s school of attendance, if practicable.
7-29 Sec. 8. (Deleted by amendment.)
7-30 Sec. 9. Chapter 370 of NRS is hereby amended by adding
7-31 thereto the provisions set forth as sections 10 to 58, inclusive, of this
7-32 act.
7-33 Secs. 10-37. (Deleted by amendment.)
7-34 Sec. 38. The Legislature finds that:
7-35 1. Violations of the provisions of chapter 370A of NRS
7-36 threaten the integrity of the Master Settlement Agreement, the
7-37 fiscal soundness of the State and the public health.
7-38 2. The enactment of the procedural enhancements set forth in
7-39 sections 38 to 58, inclusive, of this act will aid in the enforcement
7-40 of the provisions of chapter 370A of NRS and thereby safeguard
7-41 the Master Settlement Agreement, the fiscal soundness of the State
7-42 and the public health.
7-43 Sec. 39. As used in sections 38 to 58, inclusive, of this act,
7-44 unless the context otherwise requires, the words and terms defined
8-1 in sections 40 to 50, inclusive, of this act have the meanings
8-2 ascribed to them in those sections.
8-3 Sec. 40. “Brand family” means all styles of cigarettes sold
8-4 under the same trademark and differentiated from one another by
8-5 means of additional modifiers or descriptors, including, but not
8-6 limited to, “menthol,” “lights,” “kings” and “100s,” and includes
8-7 any brand name, whether occurring alone or in conjunction with
8-8 any other word, any trademark, logo, symbol, motto, selling
8-9 message or recognizable pattern of colors, or any other indicia of
8-10 product identification identical or similar to, or identifiable with, a
8-11 previously known brand of cigarettes.
8-12 Sec. 41. “Cigarette” has the meaning ascribed to it in
8-13 NRS 370A.050.
8-14 Sec. 42. “Directory” means the directory created pursuant to
8-15 section 53 of this act.
8-16 Sec. 43. “Distributor” means a person that is authorized to
8-17 affix stamps to cigarette packages pursuant to this chapter or any
8-18 person that is required to pay the taxes on cigarettes imposed
8-19 pursuant to this chapter.
8-20 Sec. 44. “Manufacturer of tobacco products” has the
8-21 meaning ascribed to it in NRS 370A.060.
8-22 Sec. 45. “Master Settlement Agreement” has the meaning
8-23 ascribed to it in NRS 370A.070.
8-24 Sec. 46. “Nonparticipating manufacturer” means any
8-25 manufacturer of tobacco products that is not a participating
8-26 manufacturer.
8-27 Sec. 47. “Participating manufacturer” has the meaning
8-28 ascribed to it in NRS 370A.080.
8-29 Sec. 48. “Qualified escrow fund” has the meaning ascribed
8-30 to it in NRS 370A.090.
8-31 Sec. 49. “Stamp” means the indicia required to be placed on
8-32 a cigarette package that evidences payment of the taxes on
8-33 cigarettes imposed pursuant to this chapter.
8-34 Sec. 50. “Units sold” has the meaning ascribed to it in
8-35 NRS 370A.120.
8-36 Sec. 51. 1. A manufacturer of tobacco products whose
8-37 cigarettes are sold in this state, whether directly or through a
8-38 distributor, retailer or similar intermediary or intermediaries,
8-39 shall, not later than April 30 of each year, execute and deliver to
8-40 the Attorney General and the Department, on a form provided by
8-41 the Department, a certification which certifies under penalty of
8-42 perjury that, as of the date of that certification, the manufacturer
8-43 of tobacco products is either:
8-44 (a) A participating manufacturer; or
9-1 (b) In full compliance with subsection 2 of NRS 370A.140,
9-2 including any quarterly installment payments required pursuant to
9-3 section 56 of this act.
9-4 2. Except as otherwise provided in section 52 of this act:
9-5 (a) A participating manufacturer shall include in its
9-6 certification pursuant to this section a list of its brand families.
9-7 The participating manufacturer shall update that list at least 30
9-8 calendar days before it adds to or modifies its brand families by
9-9 executing and delivering a supplemental certification to the
9-10 Attorney General and the Department.
9-11 (b) A nonparticipating manufacturer shall, in its certification
9-12 pursuant to this section:
9-13 (1) Include:
9-14 (I) A list of all of its brand families and the number of
9-15 units sold for each brand family that were sold in the State during
9-16 the preceding calendar year; and
9-17 (II) A list of all of its brand families that have been sold
9-18 in the State at any time during the current calendar year;
9-19 (2) Indicate, by an asterisk, any brand family sold in the
9-20 State during the preceding calendar year that is no longer being
9-21 sold in the State as of the date of the certification; and
9-22 (3) Identify, by name and address, any other manufacturer
9-23 of those brand families in the preceding or current calendar
9-24 year.
9-25 A nonparticipating manufacturer shall update the information
9-26 required by this paragraph at least 30 calendar days before it adds
9-27 to or modifies its brand families by executing and delivering a
9-28 supplemental certification to the Attorney General and the
9-29 Department.
9-30 3. In addition to the requirements of subsection 2, the
9-31 certification of a nonparticipating manufacturer pursuant to this
9-32 section must certify:
9-33 (a) That the nonparticipating manufacturer is registered to do
9-34 business in the State or has appointed a resident agent for service
9-35 of process and provided notice thereof as required by section 54 of
9-36 this act;
9-37 (b) That the nonparticipating manufacturer has:
9-38 (1) Established and continues to maintain a qualified
9-39 escrow fund; and
9-40 (2) Executed a qualified escrow agreement governing the
9-41 qualified escrow fund that has been reviewed and approved by the
9-42 Attorney General;
9-43 (c) That the nonparticipating manufacturer is in full
9-44 compliance with chapter 370A of NRS and any regulations
9-45 adopted pursuant thereto;
10-1 (d) The name, address and telephone number of the financial
10-2 institution where the nonparticipating manufacturer has
10-3 established the qualified escrow fund required pursuant to chapter
10-4 370A of NRS and any regulations adopted pursuant thereto;
10-5 (e) The account number of that qualified escrow fund and any
10-6 sub-account number for this state;
10-7 (f) The amount the nonparticipating manufacturer placed in
10-8 that qualified escrow fund for cigarettes sold in the State during
10-9 the preceding calendar year, the date and amount of each such
10-10 deposit, and such evidence or verification as may be deemed
10-11 necessary by the Department to confirm the information required
10-12 by this paragraph; and
10-13 (g) The amount and date of any withdrawal or transfer of
10-14 money the nonparticipating manufacturer made at any time from
10-15 that qualified escrow fund or from any other qualified escrow
10-16 fund into which it ever made escrow payments pursuant to chapter
10-17 370A of NRS and any regulations adopted pursuant thereto.
10-18 Sec. 52. A manufacturer of tobacco products:
10-19 1. Shall not include a brand family in its certification
10-20 pursuant to section 51 of this act unless, if the manufacturer is:
10-21 (a) A participating manufacturer, the manufacturer affirms
10-22 that the brand family is to be deemed to be its cigarettes for
10-23 purposes of calculating its payments under the Master Settlement
10-24 Agreement for the relevant year, in the volume and shares
10-25 determined pursuant to the Master Settlement Agreement; or
10-26 (b) A nonparticipating manufacturer, the manufacturer
10-27 affirms that the brand family is to be deemed to be its cigarettes
10-28 for purposes of chapter 370A of NRS.
10-29 This subsection must not be construed as limiting or otherwise
10-30 affecting the right of the State to maintain that a brand family
10-31 constitutes cigarettes of a different manufacturer of tobacco
10-32 products for purposes of calculating payments under the Master
10-33 Settlement Agreement or for purposes of chapter 370A of NRS.
10-34 2. Shall maintain all invoices and documentation of sales,
10-35 and any other information relied upon by the manufacturer for its
10-36 certification pursuant to section 51 of this act, for at least 5 years,
10-37 unless the manufacturer is otherwise required by law to maintain
10-38 them for a greater period.
10-39 Sec. 53. 1. The Department shall create and maintain on
10-40 its Internet website and otherwise make available for public
10-41 inspection a directory that lists, except as otherwise provided in
10-42 sections 38 to 58, inclusive, of this act, all manufacturers of
10-43 tobacco products that have provided current and accurate
10-44 certifications conforming to the requirements of sections 38 to 58,
11-1 inclusive, of this act and all brand families that are listed in those
11-2 certifications. The Department:
11-3 (a) Shall not include or retain in the directory the name or
11-4 brand families of any nonparticipating manufacturer that has
11-5 failed to provide the required certification or whose certification
11-6 the Department determines is not in compliance with sections 38
11-7 to 58, inclusive, of this act, unless the Department has determined
11-8 that such violation has been cured to its satisfaction.
11-9 (b) Shall not include or retain in the directory a manufacturer
11-10 of tobacco products or brand family if the Department concludes,
11-11 for a nonparticipating manufacturer, that:
11-12 (1) Any escrow payment required pursuant to chapter 370A
11-13 of NRS for any period for any brand family, whether or not listed
11-14 by the nonparticipating manufacturer, has not been fully paid into
11-15 a qualified escrow fund governed by a qualified escrow agreement
11-16 which has been approved by the Attorney General; or
11-17 (2) Any outstanding final judgment, including any interest
11-18 thereon, for a violation of chapter 370A of NRS has not been fully
11-19 satisfied for that manufacturer or brand family.
11-20 2. The Department shall update the directory as necessary to
11-21 correct mistakes and to add or remove a manufacturer of tobacco
11-22 products or brand family to keep the directory in conformity with
11-23 the requirements of sections 38 to 58, inclusive, of this act.
11-24 3. Any determination of the Department not to include in or
11-25 to remove from the directory a manufacturer of tobacco products
11-26 or brand family is a final decision for the purposes of judicial
11-27 review.
11-28 Sec. 54. 1. Any nonresident or foreign nonparticipating
11-29 manufacturer that has not registered to do business in the State as
11-30 a foreign corporation or other business entity must, as a condition
11-31 precedent to having its brand families included or retained in the
11-32 directory, appoint and continually engage without interruption the
11-33 services of an agent in this state to act as its agent for the service
11-34 of process on whom all process, in any action or proceeding
11-35 against it concerning or arising out of the enforcement of this
11-36 chapter, may be served in any manner authorized by law. Such
11-37 service constitutes legal and valid service of process on the
11-38 nonparticipating manufacturer. The nonparticipating
11-39 manufacturer shall provide the name, address, phone number and
11-40 proof of the appointment and availability of such agent to, and to
11-41 the satisfaction of, the Attorney General and the Department.
11-42 2. A nonparticipating manufacturer shall provide notice to
11-43 the Attorney General and the Department at least 30 calendar days
11-44 before the termination of the authority of an agent appointed
11-45 pursuant to this section and shall provide proof to the satisfaction
12-1 of the Attorney General and the Department of the appointment of
12-2 a new agent not less than 5 calendar days before the termination
12-3 of appointment of an existing agent. If an agent terminates his
12-4 appointment as an agent, the nonparticipating manufacturer shall
12-5 notify the Attorney General and the Department of that
12-6 termination within 5 calendar days and include with that
12-7 notification proof to the satisfaction of the Attorney General and
12-8 the Department of the appointment of a new agent.
12-9 3. Any nonparticipating manufacturer whose cigarettes are
12-10 sold in this state and who has not appointed and engaged an agent
12-11 as required by this section shall be deemed to have appointed the
12-12 Secretary of State as such agent and may be proceeded against in
12-13 courts of this state by service of process upon the Secretary of
12-14 State, except that the appointment of the Secretary of State as such
12-15 agent does not satisfy the condition precedent for having the brand
12-16 families of the nonparticipating manufacturer included or
12-17 retained in the directory.
12-18 Sec. 55. 1. Not later than 20 calendar days after the end of
12-19 each calendar quarter, and more frequently if so directed by the
12-20 Department, each distributor shall submit such information as the
12-21 Department requires to facilitate compliance with the provisions of
12-22 sections 38 to 58, inclusive, of this act, including, without
12-23 limitation, a list by brand family of the total number of cigarettes
12-24 or, in the case of “roll-your-own” tobacco, the equivalent unit
12-25 count, for which the distributor affixed stamps during the previous
12-26 calendar quarter or otherwise paid the tax due for those cigarettes.
12-27 The distributor shall maintain for at least 5 years, and make
12-28 available to the Department, all invoices and documentation of
12-29 sales of all cigarettes of nonparticipating manufacturers and any
12-30 other information relied upon in reporting to the Department.
12-31 2. The Department may disclose to the Attorney General any
12-32 information received pursuant to sections 38 to 58, inclusive, of
12-33 this act and requested by the Attorney General for purposes
12-34 of determining compliance with and enforcing the provisions of
12-35 sections 38 to 58, inclusive, of this act. The Department and
12-36 Attorney General shall share with each other the information
12-37 received pursuant to the provisions of sections 38 to 58, inclusive,
12-38 of this act, and may share such information with other federal,
12-39 state or local agencies only for purposes of enforcement of those
12-40 provisions, the provisions of chapter 370A of NRS or the
12-41 corresponding laws of other states.
12-42 3. The Department may require at any time from a
12-43 nonparticipating manufacturer proof, from the financial
12-44 institution in which that manufacturer has established a qualified
12-45 escrow fund for the purpose of compliance with chapter 370A of
13-1 NRS, of the amount of money in that fund, exclusive of interest,
13-2 the amount and date of each deposit to that fund, and the amount
13-3 and date of each withdrawal from that fund.
13-4 4. In addition to the information otherwise required to be
13-5 submitted pursuant to sections 38 to 58, inclusive, of this act, the
13-6 Department may require a distributor or manufacturer of tobacco
13-7 products to submit any additional information, including, without
13-8 limitation, samples of the packaging or labeling of each brand
13-9 family, as is necessary to enable the Department to determine
13-10 whether a manufacturer of tobacco products is in compliance with
13-11 the provisions of sections 38 to 58, inclusive, of this act.
13-12 5. Every distributor shall provide to the Department and
13-13 update as necessary an electronic mail address for receiving any
13-14 notifications as may be required to carry out sections 38 to 58,
13-15 inclusive, of this act.
13-16 Sec. 56. 1. To promote compliance with the provisions of
13-17 NRS 370A.140, the Department may adopt regulations requiring a
13-18 manufacturer of tobacco products to make the escrow deposits
13-19 required by NRS 370A.140 in quarterly installments during the
13-20 year in which the sales covered by those deposits are made. The
13-21 Department may require the production of information sufficient
13-22 to enable the Department to determine the adequacy of the amount
13-23 of each quarterly installment.
13-24 2. The Department may adopt such regulations as it deems
13-25 necessary to carry out the provisions of sections 38 to 58,
13-26 inclusive, of this act.
13-27 Secs. 57-79. (Deleted by amendment.)
13-28 Sec. 80. NRS 370A.150 is hereby amended to read as follows:
13-29 370A.150 A manufacturer of tobacco products that deposits
13-30 money into escrow pursuant to subsection 2 of NRS 370A.140 shall
13-31 receive the interest or other appreciation on the deposit as earned.
13-32 The principal of the deposit may be released from escrow only
13-33 under the following circumstances:
13-34 1. To pay a judgment or settlement on a released claim brought
13-35 against that manufacturer by this state or by a releasing party located
13-36 or residing in this state. Money may be released from escrow under
13-37 this subsection only in the order in which it was deposited into
13-38 escrow and only to the extent and at the time necessary to make
13-39 payments required under the judgment or settlement.
13-40 2. To the extent that the manufacturer establishes that the
13-41 amount it was required to deposit into escrow on account of units
13-42 sold in the State in a particular year was greater than [this state’s
13-43 allocable share of the total payments that the manufacturer would
13-44 have been required to make in that year under] the Master
13-45 Settlement Agreement payments, as determined pursuant to section
14-1 IX(i) of that Agreement including after final determination of all
14-2 adjustments, that such manufacturer would have been required to
14-3 make on account of such units sold if the manufacturer had been a
14-4 participating manufacturer, [as such payments are determined
14-5 pursuant to section IX(i)(2) of that Agreement and before any of the
14-6 adjustments or offsets described in section IX(i)(3) of that
14-7 Agreement other than the inflation adjustment,] the excess must be
14-8 released from escrow and revert to the manufacturer.
14-9 3. To the extent not released from escrow under subsection 1 or
14-10 2, deposits must be released from escrow and revert to the
14-11 manufacturer 25 years after the date on which they were deposited.
14-12 Sec. 81. NRS 370A.150 is hereby amended to read as follows:
14-13 370A.150 A manufacturer of tobacco products that deposits
14-14 money into escrow pursuant to subsection 2 of NRS 370A.140 shall
14-15 receive the interest or other appreciation on the deposit as earned.
14-16 The principal of the deposit may be released from escrow only
14-17 under the following circumstances:
14-18 1. To pay a judgment or settlement on a released claim brought
14-19 against that manufacturer by this state or by a releasing party located
14-20 or residing in this state. Money may be released from escrow under
14-21 this subsection only in the order in which it was deposited into
14-22 escrow and only to the extent and at the time necessary to make
14-23 payments required under the judgment or settlement.
14-24 2. [To the extent that the manufacturer establishes that the
14-25 amount it was required to deposit into escrow on account of units
14-26 sold in the State in a particular year was greater than the Master
14-27 Settlement Agreement payments, as determined pursuant to section
14-28 IX(i) of that Agreement including after final determination of all
14-29 adjustments, that such manufacturer would have been required to
14-30 make on account of such units sold if the manufacturer had been a
14-31 participating manufacturer, the excess must be released from escrow
14-32 and revert to the manufacturer.
14-33 3.] To the extent not released from escrow under subsection 1 ,
14-34 [or 2,] deposits must be released from escrow and revert to the
14-35 manufacturer 25 years after the date on which they were deposited.
14-36 Sec. 82. NRS 370A.150 is hereby amended to read as follows:
14-37 370A.150 A manufacturer of tobacco products that deposits
14-38 money into escrow pursuant to subsection 2 of NRS 370A.140 shall
14-39 receive the interest or other appreciation on the deposit as earned.
14-40 The principal of the deposit may be released from escrow only
14-41 under the following circumstances:
14-42 1. To pay a judgment or settlement on a released claim brought
14-43 against that manufacturer by this state or by a releasing party located
14-44 or residing in this state. Money may be released from escrow under
14-45 this subsection only in the order in which it was deposited into
15-1 escrow and only to the extent and at the time necessary to make
15-2 payments required under the judgment or settlement.
15-3 2. To the extent that the manufacturer establishes that the
15-4 amount it was required to deposit into escrow in a particular year
15-5 was greater than this state’s allocable share of the total payments
15-6 that the manufacturer would have been required to make in that
15-7 year under the Master Settlement Agreement if the manufacturer
15-8 had been a participating manufacturer, as such payments are
15-9 determined pursuant to section IX(i)(2) of that Agreement and
15-10 before any of the adjustments or offsets described in section
15-11 IX(i)(3) of that Agreement other than the inflation adjustment, the
15-12 excess must be released from escrow and revert to the
15-13 manufacturer.
15-14 3. To the extent not released from escrow under subsection 1
15-15 [,] or 2, deposits must be released from escrow and revert to the
15-16 manufacturer 25 years after the date on which they were deposited.
15-17 Sec. 83. 1. The first report required by section 55 of this act
15-18 is due on or before October 20, 2003.
15-19 2. Notwithstanding the provisions of section 51 of this act, the
15-20 initial certifications required by that section are due on or before
15-21 November 15, 2003.
15-22 3. The Department of Taxation shall create and make available
15-23 for public inspection the directory required pursuant to section 53 of
15-24 this act on or before December 31, 2003.
15-25 Sec. 84. 1. This section and sections 1 to 56, inclusive, 58 to
15-26 80, inclusive, and 83 of this act become effective:
15-27 (a) Upon passage and approval for the purposes of adopting
15-28 regulations and taking such other actions as are necessary to carry
15-29 out the provisions of this act; and
15-30 (b) On October 1, 2003, for all other purposes.
15-31 2. Section 57 of this act becomes effective on January 1, 2004.
15-32 3. Section 81 of this act becomes effective on the date a court
15-33 of competent jurisdiction enters a judgment determining that the
15-34 amendatory provisions of section 80 of this act are unconstitutional.
15-35 4. Section 82 of this act becomes effective on the date a court
15-36 of competent jurisdiction enters a judgment determining that the
15-37 amendatory provisions of section 81 of this act are unconstitutional.
15-38 H