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2006 Legislative Session: 2nd Session, 38th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE GEORGE ABBOTT

MINISTER OF HEALTH

BILL 12 – 2006

TOBACCO SALES

(PREVENTING YOUTH ACCESS TO TOBACCO)

AMENDMENT ACT, 2006

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Section 1 of the Tobacco Sales Act, R.S.B.C. 1996, c. 451, is amended

(

a) by repealing the

definitions of "authorization" , "certificate" , "dealer" , "dealer's permit" and "notice" , and

(

b) by adding the following

definitions:

"administrative penalty" means a monetary penalty or prohibition order imposed under

section 6.1;

"retail" means a sale to a person for the person's own consumption or use, or for consumption or use by another person; .

Section 2 is amended

(

a) in subsection (1) by striking out " distribute, advertise or promote " and substituting " distribute, provide, advertise or promote ",

(

b) by repealing subsection (2) and substituting the following:

(2) Subject to subsection (2.1), a person must not sell, offer for sale, provide or distribute tobacco to an individual who appears to be under the age of 25 years unless

(

a) the individual has produced a prescribed form of identification, and

(

b) the person is satisfied that the individual has reached the age specified by regulation.

(2.1) A person must not sell, offer for sale, provide or distribute tobacco to an individual who produces a form of identification, referred to in subsection (2), that appears to have been altered. , and

(

c) by adding the following subsection:

(4) A person must not sell or offer to sell tobacco at retail at a location to which a prohibition order under

section 6.1 (2) (

b) applies.

Section 3 (3) is amended by striking out " an offence under " and substituting " a contravention or an offence under " and by striking out " of the offence " and substituting " of the contravention or offence ".

Section 4 (1) (

b) is repealed and the following substituted:

(

b) retain the item and make it available for review by the person from whom it was seized, if the enforcement officer considers that retention of the item is necessary and reasonable for the purposes of

(

i) an investigation of a contravention or an offence under this Act or the regulations,

(ii) the imposition of an administrative penalty under

section 6.1, or

(iii) the prosecution of an offence under this Act or the regulations.

Section 5 is repealed and the following substituted:

Duties of administrator

(1) The minister may designate a public service employee to be the administrator.

(2) The administrator may, in writing, delegate to any person or entity any of the administrator's functions, duties or powers under this Act, except the power to delegate under this subsection.

(3) A delegation under subsection (2)

(

a) may be cancelled,

(

b) does not prevent the administrator from carrying out the delegated function or duty or exercising the delegated power, and

(

c) may be subject to the terms the administrator considers appropriate.

Agreement to obtain information

5.1 The minister may, for the purpose of administering or enforcing this Act, enter into an agreement to collect information obtained under the Tobacco Tax Act .

6 The following sections are added:

Administrative penalties

6.1

(1) Subject to the regulations, the administrator may make an order under subsection (2) if satisfied on a balance of probabilities that a person has contravened

(

a) a prescribed provision of this Act or of the regulations, or

(

b) an order of the administrator.

(2) The administrator, by order, may do one or both of the following:

(

a) impose a monetary penalty on the person, in accordance with the prescribed

schedule of penalties;

(

b) prohibit the person, in accordance with the prescribed

schedule of prohibition periods, from selling tobacco or offering to sell tobacco at retail

(

i) from the location at which the contravention occurred, and

(ii) subject to the regulations, if the administrator is satisfied that it is in the public interest to do so, from any other location, if the person sells or offers to sell tobacco at retail at more than one location.

(3) Before making an order under this section, the administrator must provide the person with an opportunity to be heard.

(4) For the purposes of imposing an increased administrative penalty for a second or subsequent contravention as prescribed within a 5 year period, the only question to be considered is the sequence of the orders imposing administrative penalties and no consideration may be given to the sequence of the contraventions or whether any contravention occurred before or after an order imposing an administrative penalty.

(5) If the administrator makes an order under this section, the administrator must, in the prescribed manner, deliver to the person who is the subject of the order an administrative penalty notice in the prescribed form.

Administrative penalties as alternatives

to offence proceedings

6.2

(1) If the administrator imposes an administrative penalty on a person, a prosecution for an offence under this Act may not be brought against the person for the same contravention that is the subject of the administrative penalty.

(2) A person who has been charged with an offence under this Act may not be subject to an administrative penalty in respect of the circumstances that gave rise to the charge.

Amount of monetary penalty

6.3

(1) A monetary penalty imposed under

section 6.1 (2) (

a) may not exceed $5 000.

(2) If a contravention referred to in

section 6.1 (1) continues for more than one day, separate monetary penalties, each not exceeding the maximum permitted under subsection (1) of this section, may be imposed for each day the contravention continues.

Recovery of monetary penalty

6.4

(1) A person required to pay a monetary penalty must pay the penalty within 30 days of the date on which the notice referred to in

section 6.1 (5) is delivered to the person.

(2) If a person fails to pay a monetary penalty as required under subsection (1), the administrator may file with the Supreme Court or Provincial Court a certified copy of the administrative penalty notice imposing the penalty and, on being filed, the notice has the same force and effect, and all proceedings may be taken on the notice as if it were a judgment of that court.

Liability of employees, officers, directors or

agents of corporations

6.5 If a corporation contravenes

(

a) a prescribed provision of this Act or the regulations, or

(

b) a prohibition order under

section 6.1 (2) (b),

the administrator may impose a monetary penalty on an employee, officer, director or agent of the corporation who authorizes, permits or acquiesces in the contravention, whether or not a penalty is imposed on the corporation.

Limitation period

6.6 The time limit for proceeding under

section 6.1 is 2 years after the date on which the contravention occurred.

7 Sections 7 to 10 are repealed.

Section 10.1 is repealed and the following substituted:

10.1 If the administrator makes a prohibition order under

section 6.1 (2) (b),

(

b) the sign must be posted in accordance with and meet the requirements of the regulations, and

(

c) the administrator must publicize

(

i) the name of the person who is the subject of the order,

(ii) the location to which the order applies,

(iii) the name under which business is conducted at the location, and

(iv) the content of the sign that is required to be posted under paragraph (a).

9 The following sections are added:

Reporting prohibition orders to director

10.2 If the administrator orders a prohibition period under

section 6.1 (2) (

b) that is longer than 14 days, the administrator must send a copy of the order to the director.

Removing tobacco from public display

10.3 A person must not display tobacco at a location to which a prohibition order applies.

Section 11 (2) is amended by adding the following paragraphs:

(

j) respecting administrative penalties, including the following:

(

i) prescribing provisions of this Act or the regulations for which a contravention may result in the imposition of an administrative penalty;

(ii) establishing procedures to be followed by the administrator in providing an opportunity to be heard under

section 6.1 (3), which need not entail an oral hearing, and establishing evidentiary rules respecting opportunities to be heard;

(iii) establishing consequences for failing to appear or provide submissions, as applicable, on an opportunity to be heard under

section 6.1 (3), which may include, but are not limited to, proceeding in the absence of the person who fails to appear or without their submission, as applicable;

(iv) prescribing, in relation to a contravention under

section 6.1 (1), whether an administrative penalty may be imposed if the person who committed the contravention demonstrates to the satisfaction of the administrator that the person exercised due diligence to prevent the contravention;

(

v) prescribing a

schedule of penalties for the purposes of

section 6.1 (2) (

a) and the matters to be considered by the administrator in imposing a monetary penalty in a particular case;

(vi) prescribing a

schedule of prohibition periods for the purposes of

section 6.1 (2) (

b) and the matters to be considered by the administrator in imposing a prohibition period in a particular case;

(vii) prescribing the form of notice and manner for delivery of an administrative penalty notice under

section 6.1 (5);

(viii) establishing consequences for failing to pay a monetary penalty, which may include, but are not limited to, imposing additional penalties;

(ix) prescribing the manner and method for paying a monetary penalty;

(

k) prescribing documents that may be used for proof of age.

Section 12 is amended

(

a) by striking out "

section 2, 3 (4) or 10.1 (1) or (2) or " and substituting "

section 2, 3 (4) or 10.1 (

a) or (b), an order under

section 6.1 (2) (b), or ", and

(

b) by adding the following subsection:

(7) A person who continues an offence under this Act on more than one day is liable to be convicted for a separate offence for each day on which the offence is committed.

12 The following

section is added:

Offence Act

12.1

Section 5 of the Offence Act does not apply to this Act.

Consequential Amendments

Tobacco Tax Act

Section 6 of the Tobacco Tax Act, R.S.B.C. 1996, c. 452, is amended

(

a) in subsection (6) (

a) by striking out "

section 7 or 9 of the Act " and substituting "

section 7 ", and

(

b) by adding the following subsection:

(7) The director must not issue a dealer's permit in respect of a location to which a prohibition order under the Tobacco Sales Act applies.

Section 9 (1) is repealed and the following substituted:

(1) On receiving a copy of a prohibition order under

section 10.2 of the Tobacco Sales Act , the director must, if a person has a dealer's permit or retail authorization applicable to a location specified in the order, suspend the permit or authorization for the location and period specified in the order.

Section 13 is amended

(

a) in paragraph (d) (iii) by striking out " band, or " and substituting " band, ",

(

b) in paragraph (

e) by striking out " Canada. " and substituting " Canada, or ", and

(

c) by adding the following paragraph:

(

f) under an agreement with a public body as defined in the Freedom of Information and Protection of Privacy Act for the purposes of administering or enforcing the Tobacco Sales Act .

Section 23 (1) (

c) is amended by striking out "

section 6 " and substituting "

section 6 (1) to (6) ".

Section 44 (2) is amended by adding the following paragraph:

(i.2) prescribing the information respecting the sale of tobacco at retail that a person must provide to the director, and the time and manner for providing that information; .

Section 51 (2) (

b) is amended

(

a) in subparagraph (iv) by striking out " at retail, or " and substituting " at retail, ",

(

b) in subparagraph (

v) by striking out " at wholesale. " and substituting " at wholesale, or ", and

(

c) by adding the following subparagraph:

(vi) is held for sale at retail in British Columbia by a person at a location contrary to a suspension under

section 7 (2) (

b) or 9 (1) or to a cancellation under

section 7 (3) (b).

Transitional Provisions

Transitional – certificates for suspension

and appeals under the Tobacco Sales Act

19 Sections 7 to 10.1 of the Tobacco Sales Act , as they read immediately before the coming into force of sections 7 and 8 of this Act, continue to apply with respect to a matter for which, on or before the date those sections come into force,

(

a) the administrator has given notice of intention to issue a certificate under

section 8 of the Tobacco Sales Act ,

(

b) the administrator has issued a certificate of suspension under

section 9 of the Tobacco Sales Act ,

(

c) a person has an unexercised right of appeal under

section 10 of the Tobacco Sales Act , or

(

d) notice of appeal has been served under

section 10 of the Tobacco Sales Act .

Transitional – suspension under the Tobacco Tax Act

Section 9 (1) of the Tobacco Tax Act , as it read immediately before the coming into force of

section 14 of this Act, continues to apply with respect to a matter referred to in

section 19 of this Act.

Commencement

21 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Notes

Tobacco Sales Act

SECTION 1: [Tobacco Sales Act,

section 1] repeals the

definitions of "authorization", "certificate",

"dealer", "dealer's permit" and "notice", consequential to the repeal

by this Bill of the provisions in which those terms appear, and adds

definitions

for "administrative penalty" and "retail".

SECTION 2: [Tobacco Sales Act,

section 2] requires tobacco vendors to verify age for anyone

appearing to be under the age of 25 years, and prohibits vendors from selling

tobacco to an individual producing identification that appears to have been

altered.

SECTION 3: [Tobacco Sales Act,

section 3] adds seizure and detention of material related to contraventions to the current seizure and detention powers related to offences.

SECTION 4: [Tobacco Sales Act,

section 4] adds the authority to retain seized material to

investigate a contravention or impose an administrative penalty to the current

authority to retain material for the investigation and prosecution of offences.

SECTION 5: [Tobacco Sales Act, sections 5 and 5.1]

authorizes the administrator to delegate functions, duties and powers under the Act;

permits the minister to enter into an agreement to obtain information for the purpose of administering and enforcing the Act .

SECTION 6: [Tobacco Sales Act, sections 6.1 to 6.6]

permits the administrator, by order, to impose a monetary penalty or prohibit a person from selling tobacco at retail, or both, for contraventions;

requires the administrator to provide the person with an opportunity to be heard before imposing an administrative penalty;

requires the administrator to deliver an administrative penalty notice to the person who is the subject of an order;

provides that administrative penalties are alternatives to offence proceedings, so a person cannot be prosecuted for the same contravention that is the subject of an administrative penalty, and the administrator may not impose an administrative penalty on a person who has been prosecuted for an offence related to the same circumstances;

establishes a limit on monetary penalties, and permits the administrator to impose a monetary penalty for each day a contravention continues;

requires a monetary penalty to be paid within 30 days of delivery of an administrative penalty notice, and permits enforcement of the penalty as if it were a court judgment if a person fails to pay the penalty within the 30 days;

imposes a liability on employees, officers, directors or agents of corporations who have contravened a prescribed provision of the Act or the regulations or a prohibition order, whether or not a penalty has also been imposed on the corporation;

guides the administrator in the consideration of prior contraventions for the purposes of imposing increased penalties for second and subsequent contraventions;

requires the administrator to proceed under

section 6.1 of the Act within 2 years of a contravention.

SECTION 7: [Tobacco Sales Act, sections 7 to 10] removes the provisions relating to the

current regulatory scheme, including the administrator's authority to issue certificates

of suspension for convictions and the ability to appeal a certificate to

the Supreme Court.

SECTION 8: [Tobacco Sales Act,

section 10.1] removes the requirement for a dealer to post

substitutes a requirement for a person who is the subject of a prohibition order

to post a sign detailing the prohibition.

SECTION 9: [Tobacco Sales Act, sections 10.2 and 10.3]

requires the administrator to notify the director under the Tobacco Tax Act of any prohibition orders exceeding 14 days in length;

prohibits anyone from displaying tobacco at a location to which a prohibition order applies.

SECTION 10: [Tobacco Sales Act,

section 11] adds the power to make regulations

respecting the new administrative penalty scheme, including establishing contraventions that are subject to administrative penalties, the practice and procedure to be followed by the administrator in conducting hearings and imposing penalties, and schedules of penalties that may be imposed;

prescribing documents that may be used for proof of age.

SECTION 11: [Tobacco Sales Act,

section 12]

adds contravening a prohibition order as an offence;

provides that a person who continues an offence for more than one day may be convicted for a separate offence for each day the offence continues.

SECTION 12: [Tobacco Sales Act,

section 12.1] is self-explanatory.

Tobacco Tax Act

SECTION 13: [Tobacco Tax Act,

section 6] makes it mandatory, rather than discretionary, for

the director to refuse to issue a dealer's permit for a location to which a prohibition

order under the Tobacco Sales Act applies.

SECTION 14: [Tobacco Tax Act,

section 9] requires the director to suspend a person's

dealer's permit or retail authorization if the person is the subject of a prohibition

order exceeding 14 days in length under the Tobacco Sales Act , to reflect

the new administrative penalty scheme under that Act.

SECTION 15: [Tobacco Tax Act,

section 13] adds an exception to the general confidentiality

requirement, permitting disclosure of information for the purposes of administering

and enforcing the Tobacco Sales Act .

SECTION 16: [Tobacco Tax Act,

section 23] provides that there is no right of appeal if the

director refuses to issue a dealer's permit for a location to which a prohibition

order under the Tobacco Sales Act applies.

SECTION 17: [Tobacco Tax Act,

section 44] adds the authority to prescribe regulations

requiring persons to provide information respecting retail sales of tobacco to

the director.

SECTION 18: [Tobacco Tax Act,

section 51] authorizes officials to seize tobacco from a

location where tobacco is sold contrary to a suspension or cancellation in

respect of that location.

SECTION 19: [Transitional – certificates for suspension and appeals under the Tobacco

Sales Act] continues the application of sections 7 to 10.1 of the Tobacco Sales

Act , if, at the time of repeal of the applicable provisions of that Act, suspension

or appeal proceedings had begun or a person had an unexercised right of

appeal.

SECTION 20: [Transitional – suspension under the Tobacco Tax Act] continues the application

section 9 (1) of the Tobacco Tax Act as grounds for refusing to issue a

dealer's permit or suspending a retail authorization or dealer's permit respecting

proceedings continued under

section 19 of this Bill.

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