AN ACT to amend the Indiana Code concerning trade regulations; consumer sales and
credit.
SECTION 1. IC 24-3-5.2 IS ADDED TO THE INDIANA CODE
AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]:
Chapter 5.2. Delivery Sales of Cigarettes
Sec. 1. As used in this chapter, "cigarette" has the meaning set
forth in IC 6-7-1-2.
Sec. 2. As used in this chapter, "delivery sale" means a
transaction for the purchase of cigarettes in which an offer to
purchase cigarettes is made electronically using a computer
network (as defined in IC 35-43-2-3) or by mail and acceptance of
the offer results in delivery of the cigarettes to a named individual
at a designated address.
Sec. 3. As used in this chapter, "merchant" means a person or
an entity that engages in the selling of cigarettes by delivery sale.
Sec. 4. A merchant may not mail or ship cigarettes as part of a
delivery sale unless, before mailing or shipping the cigarettes, the
merchant complies with the following:
(1) Obtains from the prospective customer a written
statement signed by the prospective customer under penalty
of perjury:
(A) providing the prospective customer's address and date
of birth;
(B) advising the prospective customer that:
(i) signing another person's name to the statement
required under this subdivision may subject the person
to a civil monetary penalty of not more than one
thousand dollars ($1,000); and
(ii) purchasing cigarettes by a person less than eighteen
(18) years of age is a Class C infraction under
IC 35-46-1-10.5;
(C) confirming that the cigarette order was placed by the
prospective customer;
(D) providing a warning under 15 U.S.C. 1333(a)(1); and
(E) stating the sale of cigarettes by delivery sale is a
taxable event for purposes of IC 6-7-1.
(2) Makes a good faith effort to verify the information in the
written statement obtained under subdivision (1) by using a
federal or commercially available data base of valid
government issued identification, which must include the date
of birth or age of the individual placing the order. A valid
government issued identification may include a driver's
license, a state identification card, military identification, a
passport, an official naturalization or immigration document,
or a voter registration card. However, if the prospective
customer's age cannot be verified using the data base, the
prospective customer shall submit a photocopy or other image
of a valid government issued identification that includes the
date of birth or age of the customer.
(3) Receives payment for the delivery sale by a check, credit
card, or debit card issued in the name of the prospective
purchaser.
(4) Submits, to each credit or debit card acquiring company
with whom the merchant has credit or debit card sales,
information in an appropriate form so that the words
"tobacco products" will be printed on the purchaser's credit
or debit card statement when cigarettes are purchased using
a credit or debit card.
Sec. 5. (a) A merchant who mails or ships cigarettes as part of
a delivery sale shall:
(1) use a mailing or shipping service that requires the
customer or a person at least eighteen (18) years of age who
is designated by the customer to:
(A) sign to accept delivery of the cigarettes; and
(B) present a valid operator's license issued under
IC 9-24-3 or identification card issued under IC 9-24-16 if
the customer or the customer's designee, in the opinion of
the delivery agent or employee of the mailing or shipping
service, appears to be less than twenty-seven (27) years of
age;
(2) provide to the mailing or shipping service used under
subdivision (1) proof of compliance with section 7(a) of this
chapter; and
(3) include the following statement in bold type or capital
letters on an invoice or shipping document:
INDIANA LAW PROHIBITS THE MAILING OR
SHIPPING OF CIGARETTES TO A PERSON LESS
THAN EIGHTEEN (18) YEARS OF AGE AND
REQUIRES PAYMENT OF ALL APPLICABLE TAXES.
(b) The alcohol and tobacco commission may impose a civil
penalty of not more than one thousand dollars ($1,000) if a mailing
or shipping service:
(1) delivers cigarettes as part of a delivery sale without first
receiving proof from the merchant of compliance with section
7(a) of this chapter; or
(2) fails to obtain a signature and proof of identification of the
customer or the customer's designee under subsection (a)(1).
The alcohol and tobacco commission shall deposit amounts
collected under this subsection into the youth tobacco education
and enforcement fund established by IC 7.1-6-2-6.
(c) The following apply to a merchant that mails or ships
cigarettes as part of a delivery sale without using a third party
service as required by subsection (a)(1):
(1) The merchant shall require the customer or a person at
least eighteen (18) years of age who is designated by the
customer to:
(A) sign to accept delivery of the cigarettes; and
(B) present a valid operator's license issued under
IC 9-24-3 or identification card issued under IC 9-24-16 if
the customer or the customer's designee, in the opinion of
the merchant or the merchant's employee making the
delivery, appears to be less than twenty-seven (27) years of
age.
(2) The alcohol and tobacco commission may impose a civil
penalty of not more than one thousand dollars ($1,000) if the
merchant:
(A) delivers the cigarettes without first complying with
section 7(a) of this chapter; or
(B) fails to obtain a signature and proof of identification of
the customer or the customer's designee under subsection
(c)(1).
The alcohol and tobacco commission shall deposit amounts
collected under this subdivision into the youth tobacco
education and enforcement fund established by IC 7.1-6-2-6.
Sec. 6. (a) A merchant shall, before mailing or shipping
cigarettes as part of a delivery sale, provide the department of state
revenue with a written statement containing the merchant's name,
address, principal place of business, and each place of business in
Indiana.
(b) A merchant who mails or ships cigarettes as part of a
delivery sale shall, not later than the tenth day of the calendar
month immediately following the month in which the delivery sale
occurred, file with the department of state revenue a copy of the
invoice for each delivery sale to a customer in Indiana. The invoice
must include the following information:
(1) The name and address of the customer to whom the
cigarettes were delivered.
(2) The brand name of the cigarettes that were delivered to
the customer.
(3) The quantity of cigarettes that were delivered to the
customer.
(c) A merchant who complies with 15 U.S.C. 376 is considered
to satisfy the requirements of this section.
Sec. 7. (a) A merchant who delivers cigarettes to a customer as
part of a delivery sale shall:
(1) collect and pay all applicable taxes under IC 6-7-1; or
(2) place a legible and conspicuous notice on the outside of the
container in which the cigarettes are shipped. The notice shall
be placed on the same side of the container as the address to
which the container is shipped and must state the following:
"If these cigarettes have been shipped to you from a
merchant located outside the state in which you reside, the
merchant has under federal law reported information
about the sale of these cigarettes, including your name and
address, to your state tax collection agency. You are legally
responsible for all applicable unpaid state taxes on these
cigarettes.".
In addition to the requirements in subsections (1) and (2), as part
of a delivery sale the merchant shall inform the customer in
writing of all state taxes imposed by the customer's state of
residence, including a computation of the amount of taxes due.
(b) The alcohol and tobacco commission may impose, in
addition to any other remedies, civil penalties as follows:
(1) If the defendant has one (1) judgment for a violation of
this section committed during a five (5) year period, a civil
penalty of at least one thousand dollars ($1,000) and not more
than two thousand dollars ($2,000).
(2) If the defendant has two (2) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of at least two thousand five hundred
dollars ($2,500) and not more than three thousand five
hundred dollars ($3,500).
(3) If the defendant has three (3) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of at least four thousand dollars
($4,000) and not more than five thousand dollars ($5,000).
(4) If the defendant has four (4) unrelated judgments for
violations of this section committed during a five (5) year
period, a civil penalty of at least five thousand five hundred
dollars ($5,500) and not more than six thousand five hundred
dollars ($6,500).
(5) If the defendant has at least five (5) unrelated judgments
for violations of this section committed during a five (5) year
period, a civil penalty of ten thousand dollars ($10,000).
Sec. 8. The alcohol and tobacco commission may impose a civil
penalty of not more one thousand dollars ($1,000) on a:
(1) customer who signs another person's name to a statement
required under section 4(1) of this chapter; or
(2) merchant who sells cigarettes by delivery sale to a person
less than eighteen (18) years of age.
The alcohol and tobacco commission shall deposit amounts
collected under this section into the youth tobacco education and
enforcement fund established by IC 7.1-6-2-6.
SECTION 2. IC 34-24-1-1, AS AMENDED BY P.L.123-2002,
SECTION 30, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2003]: Sec. 1. (a) The following may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used or are
intended for use by the person or persons in possession of them to
transport or in any manner to facilitate the transportation of the
following:
(A) A controlled substance for the purpose of committing,
attempting to commit, or conspiring to commit any of the
following:
(i) Dealing in or manufacturing cocaine, a narcotic drug, or
methamphetamine (IC 35-48-4-1).
(ii) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(iii) Dealing in a schedule IV controlled substance
(IC 35-48-4-3).
(iv) Dealing in a schedule V controlled substance
(IC 35-48-4-4).
(v) Dealing in a counterfeit substance (IC 35-48-4-5).
(vi) Possession of cocaine, a narcotic drug, or
methamphetamine (IC 35-48-4-6).
(vii) Dealing in paraphernalia (IC 35-48-4-8.5).
(viii) Dealing in marijuana, hash oil, or hashish
(IC 35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property
(IC 35-43-4-3) if the retail or repurchase value of that property
is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-6-6.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon of mass
destruction (as defined in IC 35-41-1-29.4) used to commit,
used in an attempt to commit, or used in a conspiracy to
commit an offense under IC 35-47 as part of or in furtherance
of an act of terrorism (as defined by IC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons,
communications devices, or any property used to commit, used in
an attempt to commit, or used in a conspiracy to commit an
offense under IC 35-47 as part of or in furtherance of an act of
terrorism or commonly used as consideration for a violation of
IC 35-48-4 (other than items subject to forfeiture under
IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal statute.
(3) Any portion of real or personal property purchased with
money that is traceable as a proceed of a violation of a criminal
statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
equipment knowingly permitted the equipment to be used to engage in
conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of IC 35-48-4 found near or on a person
who is committing, attempting to commit, or conspiring to commit any
of the following offenses shall be admitted into evidence in an action
under this chapter as prima facie evidence that the money, negotiable
instrument, security, or other thing of value is property that has been
used or was to have been used to facilitate the violation of a criminal
statute or is the proceeds of the violation of a criminal statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine, a narcotic
drug, or methamphetamine).
(2) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
substance).
(3) IC 35-48-4-3 (dealing in a schedule IV controlled substance).
(4) IC 35-48-4-4 (dealing in a schedule V controlled substance)
as a Class B felony.
(5) IC 35-48-4-6 (possession of cocaine, a narcotic drug, or
methamphetamine) as a Class A felony, Class B felony, or Class
C felony.
(6) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as
a Class C felony.