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Regular Session, 2010
SENATE BILL NO. 232
BY SENATOR N. GAUTREAUX
CIGARS/CIGARETTES. Broadens the definition of "tobacco products" regulated by the
commissioner of alcohol and tobacco; the requirement of tobacco dealers acquire
"registration certificates" and regulates the delivery of tobacco products. (8/15/10)
AN ACT1
To amend and reenact R.S. 26: 901(14), the introductory paragraph of 902 and 903, the title2
of 904 and 905, and 906(B), (C), (D), (E), and (G), 907.1, 908(A), 909(A) and3
(E)(1), 911(B)(2) and (3)(a), 912, 913, 915(A), (B), (C), and (D), 916(A), (B), (C),4
(D), and (E)(2), 918(B), 919(A), (E), and (F), 920(B) and (C); to enact R.S.5
26:911(D), and to repeal R.S. 26:902(1), 903(1), 904(A) and (B), 905(A) and (B),6
907, and 915(G) and (H), relative to tobacco products; to provide for definitions; to7
remove provisions regarding registration certificates; and to provide for related8
matters.9
Be it enacted by the Legislature of Louisiana:10
Section 1. R.S. 26: 901(14), the introductory paragraph of 902 and 903, the title of11
904 and 905, and 906(B), (C), (D), (E), and (G), 907.1, 908(A), 909(A) and (E)(1),12
911(B)(2) and (3)(a), 912, 913, 915(A), (B), (C), and (D), 916(A), (B), (C), (D), and (E)(2),13
918(B), 919(A), (E), and (F), 920(B) and (C) are hereby amended and reenacted and R.S.14
26:911(D) are hereby enacted to read as follows: 15
§901. Definitions16
As used in this Chapter, the following terms have the meaning ascribed to 17 SB NO. 232
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them in this Section, unless the context clearly indicates otherwise:1
* * *2
(14) "Tobacco product" means any taxable commodity sold in commerce,3
which is made from tobacco or to which tobacco is added, including but not4
limited to, cigars, cigarettes, smokeless tobacco, or smoking tobacco, or any other5
form of tobacco or tobacco substitute using a hookah, pipe, water pipe, bong,6
or other similar device or method of delivery, or rolled in paper with the intent7
to puff and/or inhale into the mouth, nose, and/or lungs.8
* * *9
§902. Registration certificates; pPermits10
The commissioner shall issue as authorized by this Section the following11
types of certificates permits and shall adopt rules and regulations that specify the12
identifying information that is required to appear on the face of each type of13
certificate or permit:14
* * *15
§903. Permit fees16
The fees for each registration certification or permit shall be as follows:17
* * *18
§904. Registration certificate and pPermit terms19
* * *20
§905. Renewal of a registration certificate or permit21
* * *22
§906. General requirements23
* * *24
B. Application for registration certificates or permits shall be on forms25
provided by the commissioner. The application shall be signed by each person26
owning the business or having ownership interest therein. If the applicant is a27
corporation, partnership, limited partnership, or limited liability company, a duly28
authorized agent, partner, or officer shall sign the application.29 SB NO. 232
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C. The application shall be accompanied by the fees prescribed herein which1
fees shall be retained by the office to help defray the cost of printing, processing, and2
issuing the registration certificates or permits, providing server or seller training, and3
enforcement expenses of the office of alcohol and tobacco control. The office shall4
not require that annual renewal fees be paid by certified check or money order. A5
personal check or business check shall be sufficient for payment of the annual6
renewal fee to obtain a registration certification or permit by a dealer or vending7
machine operator. If the personal or business check is denied by the bank for any8
reason that makes it a nonnegotiable instrument, then the permit that was issued shall9
be considered revoked until such time as proper payment is made with cash, certified10
funds, money order or cashier's check. Furthermore, said maker shall lose their11
privilege of tendering personal or business checks for renewal of tobacco permits.12
D. The application shall be made on forms secured from the office, and shall,13
in addition to such other information as the commissioner may require, show the true14
and correct name of such dealer, the dealer's post office address, the nature of the15
operation for which the registration certificate or permit is sought, the location of the16
place of business as to which the registration certificate or permit shall apply and the17
trade name of the business, if any.18
E. All applications for registration certificates or permits shall be mailed or19
delivered to the commissioner in Baton Rouge, Louisiana. Upon receipt of an20
application, the commissioner shall stamp the day, month, and year received.21
* * *22
G. In the implementation and enforcement of this Chapter the commissioner23
shall not require an applicant, registrant, or permittee permit holder to make public24
any trade negotiated contract information or business information otherwise25
protected by law.26
* * *27
§907.1. Commissioner's examination of records28
The commissioner shall have the authority to examine invoices and sales and29 SB NO. 232
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tax records of the holder of any permit issued under this Chapter. Such examination1
shall be conducted for the purpose of determining whether the permittee permit2
holder is a bona fide wholesale dealer or retail dealer who is operating in compliance3
with the requirements of this Chapter. The invoices and records examined shall be4
held confidential and shall not be made public by the commissioner unless it is5
necessary for them to be used in a judicial or administrative action to determine such6
matter.7
§908. Issuance of permit8
A. The commissioner may issue the permits immediately upon receipt of the9
application unless the application fails to comply with R.S. 26:906. For a period of10
thirty-five days after issuance, during which time the commissioner shall conduct a11
proper investigation, the permittee permit holder shall operate on a probationary12
basis subject to final action on or withholding of the permits as hereinafter provided.13
* * *14
§909. General requirements of eligibility15
A. The commissioner may suspend a permit previously issued or may refuse16
to grant a permit if, after a hearing and by a preponderance of the evidence, it is17
proven that the permittee permit holder, or an employee or agent thereof, or18
applicant either:19
* * *20
E.(1) Notwithstanding any other provision of law to the contrary, nothing21
shall prohibit any tobacconist at a particular retail outlet as defined in this Subsection22
from purchasing tobacco products for such retail outlet from any manufacturer,23
wholesale dealer, or other supplier, if such dealer has a valid, unsuspended certificate24
or permit.25
* * *26
§911. Acts prohibited27
* * *28
B. * * *29 SB NO. 232
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(2) No wholesale dealer shall sell tobacco products for resale except to a1
retail dealer operating with either a valid, registration certificate or a valid2
unsuspended permit.3
(3)(a) Notwithstanding Paragraphs (B)(1) and (2), any tobacconist at a4
particular retail outlet as defined in Subparagraph (B)(3)(b) may purchase tobacco5
products for such retail outlet from any manufacturer, wholesale dealer, if such6
dealer has a valid, unsuspended certificate or permit, or other supplier.7
* * *8
D. Except as provided by regulation of the commissioner or the9
Department of Revenue, including but not limited to LAC 55:VII.3117, no10
tobacco or tobacco products as defined in La. R.S. 26:901(14) or any tobacco or11
tobacco products subject to taxation pursuant to R.S. 47:841, produced or12
manufactured inside or outside of this state shall be sold or offered for sale in13
this state, or shipped or transported into or within the state, except to the holder14
of a valid, unsuspended Louisiana wholesale dealer's permit. Delivery of such15
tobacco and/or tobacco products shall be made exclusively at the place of16
business of the holder of a valid, unsuspended Louisiana tobacco wholesale17
dealer's permit shown on the tobacco wholesale dealer's permit, and must be18
received and warehoused by the tobacco wholesale dealer at that place of19
business, where such tobacco and/or tobacco products shall come to rest before20
delivery is made to the holder of a valid, unsuspended Louisiana tobacco retail21
dealer's permit.22
§912. Registration certificate; pPermit23
A. A registration certificate or permit issued under this Chapter is a24
personal privilege and cannot be transferred. If over fifty-one percent of a25
corporation is sold or transferred during the period for which a registration certificate26
or a permit was issued, a new registration certificate or permit must be applied for,27
and the new owner must comply with the provisions set forth in this Chapter. If the28
holder of the registration certificate or permit is an association, partnership, or29 SB NO. 232
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limited partnership, a change of the controlling interest shall constitute a change of1
ownership under this Chapter. If the business is physically relocated during such2
period, the registration certificate holder or permittee permit holder must notify the3
commissioner in writing so that proper change may be noted thereon.4
B. The registration certificate or permit shall at all times be publicly5
displayed by the dealer in his principal place of business so as to be easily seen by6
the public unless the dealer is solely a vending machine operator. The failure of a7
dealer or vending machine operator to publicly display his registration certificates8
or permits, as required by this Chapter, shall be grounds for the issuance of a fine or9
the withholding, suspension, or revocation of the permit.10
C. Each registration certificate or permit shall include a unique number 11
assigned by the commissioner.12
D. Nothing herein shall prohibit an individual, partnership, or corporation13
otherwise qualified from obtaining multiple registration certificates or more than one14
type of permit.15
§913. Violation16
No person shall perform any action for which a multiple registration17
certificates or permit is required by this Chapter unless he holds the proper18
registration certificate or permit. Each day of business which is conducted without19
such a valid, unsuspended registration certificate or permit shall constitute a separate20
violation of this Chapter.21
* * *22
§915. Fines; registration certificate permit holders23
A. The commissioner, the secretary, governing authorities of municipalities24
or parishes, sheriffs, law enforcement authorities, and citizens, in accordance with25
the procedure below, have the right to have a registration certificate permit holder26
show cause why he should not be cited and subsequently fined.27
B. The commissioner shall have periodic examinations made of the business28
of all persons holding registration certificates permits under this Chapter. If a29 SB NO. 232
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violation of the Chapter or of any rule or regulation of the commissioner or the1
secretary is observed, the commissioner may give the registration certificate permit2
holder a written warning. If the registration certificate permit holder has been3
previously warned or if the violation is of a sufficiently serious nature, the4
commissioner may instruct any agent or employee of the commissioner to prepare5
and file, upon information and belief based upon the facts in hand, a petition for6
assessing a fine, setting forth the facts and circumstances of the violation, and shall7
thereupon summon the permittee permit holder to appear and show cause why the8
registration certificate permit holder should not be fined.9
C. The secretary, parish or municipal governing authorities, sheriffs, and10
other law enforcement officers may have periodic investigations made of the11
business of all registration certificate permit holders within their respective12
jurisdictions. If any violation of any provision of this Chapter or of any rule or13
regulation adopted by the commissioner is observed, such authorities may give the14
registration certificate holder a written warning. If the registration certificate permit15
holder has been previously warned or if the violation is of a sufficiently serious16
nature, the authority shall file an affidavit with the commissioner, setting forth the17
facts and circumstances of the violation. Thereupon, the commissioner shall18
summon the registration certificate permit holder to appear and show cause why he19
should not be fined.20
D. Any person may file with the commissioner a sworn petition requesting21
that a registration certificate permit holder be fined. When such a petition is22
received by the commissioner, he shall summon the registration certificate permit23
holder to appear and show cause why he should not be fined.24
* * *25
§916. Suspensions or revocations26
A. The commissioner, the secretary, governing authorities of municipalities27
or parishes, sheriffs, law enforcement authorities, and citizens, in accordance with28
the procedure below, have the right to have a permittee permit holder cited by the29 SB NO. 232
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commissioner to show cause why his permit or permits should not be suspended or1
revoked.2
B. The commissioner shall have periodic examinations made of the3
businesses of all persons holding permits under this Chapter. If a violation of the4
Chapter or of any rule or regulation of the commissioner or the secretary is observed,5
the commissioner may give the permittee permit holder a written warning. If the6
permittee permit holder has been previously warned or if the violation is of a7
sufficiently serious nature, the commissioner may instruct any agent or employee of8
the commissioner to prepare and file, upon information and belief based upon the9
facts in hand, a petition for assessing a fine, or suspension or revocation of the10
permit, setting forth the facts and circumstances of the violation, and shall there upon11
summon the permittee permit holder to appear and show cause why the permit12
should not be suspended or revoked or the fine not assessed.13
C. The secretary, parish or municipal governing authorities, sheriffs, and14
other law enforcement officers may have periodic investigations made of the15
businesses of all permittees permit holder within their respective jurisdictions. If16
any violation of any provision of this Chapter or of any rule or regulation adopted17
by the commissioner is observed, such authorities may give the permittee permit18
holder a written warning. If the permittee permit holder has been previously19
warned or if the violation is of a sufficiently serious nature, the authority shall file20
an affidavit with the commissioner, setting forth the facts and circumstances of the21
violation. Thereupon, the commissioner shall summon the permittee permit holder22
to appear and show cause why his permit should not be suspended or revoked.23
D. Any person may file with the commissioner a sworn petition requesting24
that a permit be suspended or revoked. When such a petition is received by the25
commissioner, he shall summon the permittee permit holder to appear and show26
cause why his permit should not be suspended or revoked.27
E. * * *28
(2) If it appears from the affidavits of the permittee permit holder opposing29 SB NO. 232
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the petition that he cannot present by affidavit facts essential to justify his1
opposition, the commissioner may suspend or revoke a permit or may order a2
continuance to permit affidavits to be obtained or depositions to be taken or3
discovery to be had or may make such other order as is just.4
* * *5
§918. Civil penalties6
* * *7
B. Any fine imposed upon any registration certificate holder or permittee8
permit holder or the revocation or suspension of a permit is in addition to and is not9
in lieu of or a limitation upon any other penalty imposed by law and not contained10
in this Chapter.11
§919. Administrative hearings12
A. When the commissioner holds a hearing pursuant to this Chapter, he shall13
issue a written summons or notice to the applicant or permittee permit holder, as the14
case may be, directing him to show cause why his application should not be refused15
or why he should not be assessed a penalty or why his permit should not be16
suspended or revoked. The notice or summons shall state the time, place, and hour17
of the hearing, which shall be not less than ten nor more than thirty calendar days18
from the day of the notice. The notice or summons shall enumerate the cause or19
causes alleged for refusing the application or for assessing the penalty or suspending20
or revoking the permit. If a petition has been filed opposing the issuance of the21
permit or asking for its suspension or revocation, a copy of the petition shall22
accompany the notice or summons. All notices or summonses shall be sent by23
certified mail to the applicant, registration certificate holder, or permittee permit24
holder, and directed to him at the address of his place of business as given in his25
application for the permit. When so addressed and mailed, notices or summonses26
shall be presumed to have been received by the applicant or permittee permit27
holder.28
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E. If a registration certificate holder, permittee, permit holder or applicant1
who has been notified of a hearing does not appear, the hearing may proceed without2
him and the commissioner may consider and dispose of the case, but in all cases the3
commissioner, upon application or ex proprio motu, may grant continuances from4
time to time. If the continuance be granted to fix a future date by written consent5
or in the presence of the permittee, permit holder registration certificate holder, or6
applicant, or his counsel, no further notice of the hearing date need be given. In all7
other cases the same notice of hearing as in original hearing shall be given.8
F. In hearings of the commissioner which finally result in withholding the9
issuance of a registration certificate or permit or in suspending or revoking a permit,10
the commissioner shall assess the costs of the hearing to the applicant or permittee11
permit holder. The costs are recoverable by the commissioner in any appellate12
proceeding instituted by the applicant or permittee permit holder or in any other13
judicial proceeding where the commissioner is successful.14
§920. Appeal15
* * *16
B. Any party aggrieved by a decision of the commissioner to withhold,17
suspend, or revoke a permit may, within thirty days of the notification of the18
decision, take a devolutive or suspensive appeal to the district court having19
jurisdiction of the applicant's or permittee's permit holder's place of business,20
proposed or actual as the case may be. Such appeals shall be filed in the district21
courts in the same manner as original suits are instituted therein. The appeals shall22
be tried de novo. Either party may amend and supplement his pleadings and23
additional witnesses may be called and heard. When there has been a previous24
criminal prosecution for the same or a similar act upon which the refusal, suspension,25
or revocation of a permit is being considered, evidence of an acquittal, dismissal, or26
plea of nolo contendere in a court of competent jurisdiction is admissible in the trial27
of the appeal.28
C. Within thirty calendar days of the signing of the judgment by the district29 SB NO. 232
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court in any such appeal case, the commissioner or the applicant for a permit or1
permittee permit holder, as the case may be, may file a devolutive or suspensive2
appeal of the judgment to the appellate court of proper jurisdiction. These appeals3
shall be perfected in the manner provided for in civil cases and shall be devolutive4
or suspensive only. If the district court determines that the decision of the5
commissioner in withholding, suspending, or revoking the permit was in error, the6
decision of the commissioner shall not be voided if the commissioner takes an appeal7
to the court of appeals in the time provided for suspensive appeals.8
* * *9
Section 2. R.S. 26:902(1), 903(1), 904(A) and (B), 905(A) and (B), 907, and 915(G)10
and (H) are hereby repealed.11
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Danielle Doiron.
DIGEST
Present law regulates wholesale, retail, and vending machine sales of "tobacco products"
(which are defined as cigars, cigarettes, smokeless tobacco, and smoking tobacco) through
a system of "registration certificates" and "permits."
Proposed law broadens the definition of "tobacco products" in order to regulate any taxable
commodity sold in commerce . . . which is made from tobacco or to which tobacco is added,
or any other form of tobacco or tobacco substitute using a hookah, pipe, water pipe, bong,
or other similar device or method of delivery, or rolled in paper with the intent to puff and/or
inhale into the mouth, nose, and/or lungs.
Proposed law deletes the requirement for such sellers to acquire "registration certificates"
and pay the $25 annual fee for the certificate, but retains the requirement that the sellers
obtain permits and pay the fees associated with those permits.
Proposed law specifically prohibits tobacco products produced or manufactured inside or
outside of the state to be sold or offered for sale in the state, or to be shipped or transported
into or within the state, except to the holder of a valid, unsuspended Louisiana wholesale
dealer's permit except as provided by regulation of the commissioner of alcohol and tobacco
or the Department of Revenue, including but not limited to LAC 55:VII.3117. Delivery of
tobacco products must be made exclusively at the place of business of the wholesale dealer
permit holder shown on the permit, and must be received and warehoused by the tobacco
wholesale dealer at that place of business, where such tobacco and/or tobacco products shall
come to rest before delivery is made to the holder of a valid, unsuspended Louisiana tobacco
retail dealer's permit.
The regulation LAC 55:VII.3117 authorizes a limited amount of cigarettes to be sold and
shipped directly to an over 18 consumer in Louisiana by the manufacturer or retailer of the
cigarettes domiciled outside of Louisiana, provided the cigarettes are for the consumer's
personal consumption and provides some other requirements for such sales directly to
consumers. SB NO. 232
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Effective August 15, 2010.
(Amends R.S. 26: 901(14), 902 (intro para), 903 (intro para), the title of 904 and 905, and
906(B), (C), (D), (E), and (G), 907.1, 908(A), 909(A) and (E)(1), 911(B)(2) and (3)(a), 912,
913, 915(A), (B), (C), and (D), 916(A), (B), (C), (D), and (E)(2), 918(B), 919(A), (E), and
(F), 920(B) and (C); adds R.S. 26:911(D); repeals R.S. 26:902(1), 903(1), 904(A) and (B),
905(A) and (B), 907, and 915(G) and (H)