34 TAC §3.1203
The Comptroller of Public Accounts adopts a new §3.1203,
concerning approved seller training programs, with changes to the proposed
text as published in the October 31, 1997, issue of the
Texas Register
(22 TexReg 10626).
Senate Bill 55, enacted by the 75th Legislature, 1997, amended the Health
and Safety Code, Chapter 161, and the Tax Code, Chapters 154 and 155, and
authorized the comptroller to establish the minimum curriculum requirements
for approved seller training programs. The seller training programs are intended
to provide persons engaged in the retail sales or delivery of cigarettes or
tobacco products with training and information about the provisions in the
new law that prohibit the sale or delivery of cigarettes or tobacco products
to minors.
Changes were made to subsection (d)(2) to clarify that current federal
and state laws should be discussed and compared. Subsection (e) was changed
to shorten the training class length to a minimum of two hours. Subsection
(i) was changed to clarify the administrative hearing process. Changes were
made to subsection (j) to clarify the certification revocation and suspension
process. Subsection (n) was also changed to correct the phone numbers for
reporting class cancellations.
Comments were received from the American Cancer Society - Texas Division,
Austin, Texas; McLane Company, Inc., Temple, Texas; H.E.B., Austin, Texas;
and an attorney in Dallas, Texas.
The attorney made comments concerning the placement of tobacco vending
machines and sales made from such machines. The comptroller made no changes
based on these comments because the comments do not relate to the substance
of this rule.
The American Cancer Society recommends that the tobacco industry's seller
training programs be excluded from eligibility for certification and tobacco
industry employees not be allowed to teach the program.
Senate Bill 55 does not allow the comptroller to exclude any person or
entity from certification to offer approved seller training programs.
H.E.B. would like to combine tobacco seller training with its alcohol seller
training program. H.E.B. would also like to utilize one form for reporting
seller training information to the comptroller's office and the Texas Alcoholic
Beverage Commission (TABC). H.E.B. also recommends requiring the class participants
to use their Social Security number on class rosters instead of their driver's
license number.
The comptroller has no objections to H.E.B. combining the tobacco products
seller training with alcohol seller training into one course, as long as the
course curriculum is certified by the comptroller and complies with the standards
and requirements set forth in this rule. The components of the seller training
for tobacco and tobacco products will have to be included in the presentation,
and the time requirements for each component, tobacco and alcohol, must be
met. This will probably involve supplementation of existing materials and
lengthening of the current course.
Unfortunately, it is not possible to have combined reporting to TABC and
the comptroller's office for tobacco and alcohol seller training class information.
The comptroller's office must use the name and driver's license number (if
applicable) of participants in tobacco seller training for identification
purposes. Social Security numbers are personal information which, if possible,
the comptroller's office avoids using for non-tax related purposes to protect
confidentiality.
McLane feels that comparing and contrasting the state and federal laws
relating to sale and distribution of cigarettes and tobacco products will
cause confusion if taught in a training class.
By requiring vendors to compare and contrast the current federal laws with
current state laws in the training class, the comptroller is ensuring that
students understand and are familiar with the differences and similarities
between the state and federal laws. In many instances, retailers and their
employees must comply with federal and state laws, and must be informed of
the provisions of both.
McLane requested clarification that it is not the comptroller's intention
to have retailers and their employees determine sales based on any means other
than that of checking a photographic identification.
It is not the comptroller's intent to have retailers and their employees
determine tobacco sales based on any other means than those prescribed by
law. The intent of the curriculum requirements is to provide retail employees
attending comptroller approved seller training classes with as much information
as possible consistent with the goal of Senate Bill 55, which is to reduce
the incidence of minors possessing and using tobacco.
McLane requested clarification that the examples used to help retailers
and their employees identify and eliminate second party sales will not become
requirements imposed upon retailers and their employees.
The inclusion of a discussion of second party sales in comptroller approved
seller training classes is intended to provide retail employees with an example
of one of the techniques used by minors to illegally obtain cigarettes and
tobacco products. It does not impose any new legal requirements upon retailers
and their employees.
McLane recommends that a suitable training program consist of a 15 to 30
minute videotape presentation followed by a questionnaire/exam.
Video presentations may be used in an approved training program. An instructor
must also be present to direct the class and answer questions. After considering
the comments received regarding the training program length, subsection (e)
of the rule was changed so that the minimum length of the class is two actual
clock hours, including class breaks.
McLane recommends that retail store managers be allowed to become certified
to present the training course so that their employees can be trained on the
premises.
No provision in Senate Bill 55 nor the comptroller's approved seller training
rule requires the instructor of seller training to be certified by the comptroller.
Retailers having 100 or more employees at any time during the permit year
and a curriculum certified by the comptroller may train their own employees
at the retailer's location. A retailer with fewer than 100 employees may contract
with a private entity or public community college which has a comptroller
certified seller training program to provide training at the retailer's location.
This new section is adopted under the Tax Code, §111.002
and §111.0022, which provide the comptroller with the authority to prescribe,
adopt, and enforce rules relating to the administration and enforcement of
the provisions assigned to the comptroller by law, and Tax Code, §154.1143
and §155.0593, which provide that the comptroller shall adopt rules and
policies establishing the minimum requirements for approved seller training
programs.
The new section implements the Tax Code, §154.1143 and §155.0593.
§3.1203. Approved Seller Training Programs.
(a)
Definitions. The following words and terms when used in
this section shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Application - The form provided by the comptroller's office
for use by persons interested in performing training under this section.
(2)
Cigarettes - Has the meaning assigned by Tax Code,
Chapter 154.
(3)
Second party sales - A sale which results in the
provision of tobacco products to a minor, even though the purchaser of the
tobacco product is not necessarily a minor.
(4)
Seller - Any person who sells cigarettes or tobacco
products in this state.
(5)
Tobacco products - Has the meaning assigned by Tax
Code, Chapter 155.
(b)
Application process. In order for a vendor to be certified
to provide employers and employees engaged in the retail sales of cigarettes
or tobacco products with training regarding provisions in the Health and Safety
Code, Chapter 161 and in the Tax Code, Chapters 154 and 155, regarding regulation
of sales, distribution, and use of tobacco products, the vendor's training
program must meet the minimum curriculum requirements established by the comptroller
and be certified by the comptroller. Vendors must make application to the
comptroller's office on a prescribed application form. The comptroller's office
will review qualified applications and certify vendors interested in providing
a seller training program.
(c)
Curriculum information. Vendors interested in obtaining
certification must apply in writing and provide a written description detailing
curriculum information, including:
(1)
the presentation;
(2)
specific course objectives;
(3)
academic content;
(4)
learning activities;
(5)
audio-visual materials, if any;
(6)
written materials (including instructor manual and
participant workbook); and
(7)
course evaluation or feedback forms.
(d)
Curriculum requirements. The curriculum of the training
program presented should include, but is not limited to, the following components.
(1)
Component One - tobacco-related health hazards. Statistical
information regarding tobacco- related health hazards as published by the
U.S. Food and Drug Administration must be included in this component.
(2)
Component Two - federal and state laws. Discussion
and comparison of the provisions of current federal law with the provisions
of current state law pertaining to minors and tobacco must be included in
this component. In particular, this component must include a review and explanation
of all provisions relating to:
(A)
prohibiting the distribution of cigarettes or tobacco
products to minors;
(B)
prohibiting the purchase, possession, or consumption of
cigarettes or tobacco products by minors (citing examples of tobacco products
included);
(C)
the warning notice signs for retail locations;
(D)
statistics on tobacco usage by adults and minors; and
(E)
the placement of tobacco products in retail locations.
(3)
Component Three - detection of minors. This
component must identify and discuss:
(A)
observation techniques for determining when a customer
is a minor;
(B)
common physical and behavioral signs of underage status;
and
(C)
behaviors indicative of adolescence, including current
clothing trends and fads, and physical appearance preferences, according to
generally recognized experts in the field.
(4)
Component Four - personal identification. This
component must:
(A)
identify, discuss, and provide actual samples of acceptable
forms of identification, including, but not limited to:
(i)
a valid state driver's license issued by the Texas Department
of Public Safety; and
(ii)
other state or U.S. government issued forms of identification
(with photograph);
(B)
identify, discuss, and provide actual samples of unacceptable
forms of identification including, but not limited to:
(i)
a temporary state driver's license;
(ii)
a birth certificate;
(iii)
a school or work ID;
(iv)
a social security card; and
(v)
a professionally printed identification card.
(C)
explain how to detect invalid identification documents
used in attempts to establish proof of age and provide examples of the following:
(i)
unofficial documents that look similar to official documents;
(ii)
types of document counterfeiting and alteration; and
(iii)
warning signs of document counterfeiting and alterations.
(5)
Component Five - second party sales. This
component must:
(A)
explain and define second party sales; and
(B)
provide examples of second party sales including, but
not limited to, the following:
(i)
a minor loitering outside a store in the store parking
lot;
(ii)
a minor loitering around a store, either inside or outside,
after having been refused a tobacco purchase; and
(iii)
a minor randomly approaching an adult customer to solicit
the adult customer to purchase tobacco products and giving the adult customer
money.
(6)
Component Six - refusing a sale. This component
must:
(A)
identify and discuss techniques to prevent an illegal
sale of tobacco products to a minor or second party;
(B)
identify and discuss techniques to terminate an illegal
sale of tobacco products to a minor or second party; and
(C)
provide examples of words and actions that may be used
by a seller to amicably avoid or terminate illegal attempts to purchase tobacco
by a minor.
(e)
Class length. The time length of the seller training class
should be a minimum of two actual clock hours, including class breaks.
(f)
Notice of certification or denial. The comptroller shall
notify each applicant with a letter of certification or denial, including
reasons for the denial, within 15 business days from the date the application
is received by the comptroller. The certification or denial letter will be
mailed to the address on the vendor's application.
(g)
Certification. A qualified vendor is certified to provide
seller training unless the certification is revoked or suspended by the comptroller.
(h)
Denial. Applications for certification will be denied
based on the following factors:
(1)
the curriculum information submitted does not meet the
minimum requirements set out in subsection (d) of this section;
(2)
the application is incomplete;
(3)
the applicant is currently delinquent in the payment
of any tax or fee collected by the comptroller.
(i)
Administrative hearing. If the comptroller determines
that an applicant is not eligible for certification, the applicant will be
notified, in writing, that the application has been denied. The notice will
state the reasons for the denial. The applicant may, within 15 days of the
date of the notice of denial, make a written request for an oral hearing to
contest the denial. If the applicant does not request a hearing within 15
days of the date of the notice of denial, the hearing is waived and the denial
is final. The hearing will be governed by the provisions of §§1.1-1.42
of this title (relating to Practice and Procedure).
(j)
Certification revocation or suspension. The comptroller
may, after notice and opportunity for a hearing, revoke or suspend a vendor's
certification upon finding that the seller training classes provided by a
vendor fail to comply with the comptroller's standards and requirements for
seller training programs described in subsections (c), (d), and (e) of this
section, or the vendor becomes delinquent in the payment of any tax or fee
collected by the comptroller. If the comptroller determines that certification
should be suspended or revoked, the comptroller will notify the vendor, in
writing, that the certification will be suspended or revoked and will state
the reasons for the action. The vendor may, within 15 days of the date of
the notice of suspension or revocation, make a written request for an oral
hearing to contest the action. If the vendor does not request a hearing within
15 days of the date of the notice of suspension or revocation, the hearing
is waived and the suspension or revocation becomes effective.
(k)
Certification reinstatement. The comptroller may reinstate
the vendor's certification after receiving proof that the vendor has satisfied
all the comptroller's standards and requirements for seller training as provided
under subsections (c), (d), and (e) of this section, and the vendor is current
in the payment of any tax or fee obligation due the comptroller.
(l)
Notice of classes scheduled. Vendors must provide the
comptroller's office written notification of the date, time, and location
of scheduled training classes at least five business days prior to the date
training classes will be conducted.
(m)
Vendor reporting requirements.
(1)
By the 15th day of the month, each certified vendor must
report data for each training class completed during the previous month. The
data must include:
(A)
a class roster with the name, driver's license number,
and date of birth of each participant;
(B)
the total number of classes conducted for the month;
(C)
the total number of participants that attended each class;
and
(D)
the total number of participants that successfully completed
the class.
(2)
The reports must be mailed to the Texas Comptroller
of Public Accounts, 111 East 17th Street, Austin, Texas, 78774-0100.
(n)
Class cancellations. Vendors must notify the comptroller's
office by telephone of any training class cancellations prior to the actual
training session date by calling 1-800-531-5441, extension 65946 or the local
number in Austin (512) 936-5946.
(o)
Class monitoring. Training classes may be monitored unannounced
by the comptroller or a comptroller's representative to evaluate the curriculum
presentation and the classroom environment.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1998.
TRD-9800022
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: January 22, 1998
Proposal publication date: October 31, 1997
For further information, please call: (512) 463-3699
34 TAC §3.1204
The Comptroller of Public Accounts adopts a new §3.1204,
concerning administrative remedies for violations of Health and Safety Code,
Chapter 161, Subchapter H or K, with changes to the proposed text as published
in the October 31, 1997, issue of the
Texas Register
(22 TexReg 10628).
Senate Bill 55, adopted by the 75th Legislature, 1997, added §154.1142
and §155.0592 to the Tax Code authorizing the comptroller to administratively
assess a fine for certain violations of the Health and Safety Code.
Changes were made to subsections (c)(1)-(c)(3) to clarify that in cases
where multiple violations of the Health and Safety Code, Chapter 161, Subchapter
H or K occur, fines may be assessed per violation. A change was made to subsection
(c)(4) to indicate that the comptroller may revoke a retailer's permit for
certain violations of the Health and Safety Code, Chapter 161, Subchapter
H or K. A change was made to subsection (e) to change the number of calendar
days a permit holder has to respond to a written notice of violation to conform
to current practice. The original subsection (f) is deleted. The information
that was in this subsection is now reflected in subsection (e). The original
subsection (g) was relettered to (f) and the word "oral" was added to clarify
the type of administrative hearing. The original subsection (h) was relettered
to (g) and words were added to clarify the provision.
Comments were received from the American Cancer Society - Texas Division,
Austin, Texas; the American Heart Association, Austin, Texas; McLane Company,
Inc., Temple, Texas; and an attorney in Dallas, Texas.
The attorney made comments concerning the placement of tobacco vending
machines and sales made from such machines. The comptroller made no changes
based on these comments because the comments do not relate to the substance
of this rule.
The American Cancer Society does not feel the comptroller's office has
the statutory authority to offer a lesser penalty to violators who waive the
right to a hearing.
The comptroller's office is merely complying with the statutory parameters
for administrative fines. The statutory fines are maximums, and the comptroller's
office is within its legal authority to promulgate administrative rules that
reflect the same fines that are set by statute and enable the agency to execute
its responsibility under the law.
The American Heart Association commented favorably about the comptroller's
effort to encourage retailers to cooperate with enforcement of the prohibition
on tobacco sales to minors by providing an incentive for more cooperation
and by reducing administrative costs.
McLane is concerned that the comptroller's office will take premature disciplinary
action based upon complaints received from the tobacco hotline. Therefore,
McLane encourages the comptroller's office to require that all complaints
be submitted in writing and the rule be modified to allow for the imposition
of severe fines and penalties for those persons or organizations filing false
claims.
The comptroller's office will not take any administrative action against
a permit holder without verification of a complaint which comes from the tobacco
hotline. The Enforcement Division and the Criminal Investigations Division
of the comptroller's office will coordinate with local law enforcement to
follow up on complaints received from the tobacco hotline. Complaints received
from the tobacco hotline will eventually take written form if there is, in
fact, a violation. If a violation is found, an agent of the comptroller or
local law enforcement will either make a written report or issue a citation.
The comptroller's office will not take any disciplinary action without the
requisite proof of violation. The comptroller's office does not have statutory
authority or jurisdiction to impose penalties against individuals for filing
false complaints under Senate Bill 55.
This new section is adopted under the Tax Code, §111.002
and §111.0022, which provide the comptroller with the authority to prescribe,
adopt, and enforce rules relating to the administration and enforcement of
the provisions assigned to the comptroller by law.
The new section implements Tax Code, §154.1142 and §155.0592.
§3.1204. Administrative Remedies for Violations of Health and Safety Code, Chapter 161, Subchapter H or K.
(a)
Definitions. The following words and terms, when used
in this section shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Place of business - Has the meaning assigned by the Tax
Code, §154.001 and §155.001.
(2)
Permit holder - Has the meaning assigned by the Tax
Code, §154.001 or §155.001.
(3)
Retailer - Has the meaning assigned by the Tax Code,
§154.001 or §155.001.
(b)
Notice of violations. The comptroller receives notice
of a violation of Health and Safety Code, Chapter 161, Subchapter H or K from:
(1)
the Enforcement or Criminal Investigations Divisions of
the comptroller's office;
(2)
local law enforcement or Drug Abuse Resource Education
(DARE);
(3)
a municipal court or a justice of the peace court;
or
(4)
a complaint reported by a caller on the tobacco hotline.
(c)
Disciplinary actions. The comptroller after receiving
notice of violation may take the following actions:
(1)
if during the preceding 12 months at the place of business
for which a permit is issued, the permit holder has not been found to have
violated the Health and Safety Code, Chapter 161, Subchapter H or K, the comptroller
may require the permit holder to pay a fine in an amount not to exceed $500
per violation;
(2)
if during the preceding 12 months at a place of business
for which a permit is issued, the permit holder has been found to have violated
the Health and Safety Code, Chapter 161, Subchapter H or K, the comptroller
may require the permit holder to pay a fine in an amount not to exceed $750
per violation;
(3)
if during the preceding 12 months at a place of business
for which a permit is issued, the permit holder has been found to have violated
the Health and Safety Code, Chapter 161, Subchapter H or K at least twice,
the comptroller may require the permit holder to pay a fine in an amount not
to exceed $1000 per violation or suspend the permit for that place of business
for not more than three days; or
(4)
if during the preceding 12 months the permit holder
has been found to have violated Health and Safety Code, §161.082(b),
on four or more previous and separate occasions at the same place of business
for which a permit is issued, the comptroller may revoke the permit.
(A)
The revocation of the retailer's permit shall be governed
by the provisions in Tax Code, §154.114 and §155.059.
(B)
A retailer whose permit has been revoked under paragraph
(4) of this subsection may not apply for a retailer's permit for the same
place of business before the expiration of six months after the effective
date of the revocation.
(d)
The comptroller will send written notice to the permit
holder informing the permit holder that a violation has occurred. If the comptroller
so offers, the permit holder may have the option to waive the right to a hearing
and pay a lesser administrative fine or agree to a lesser administrative remedy.
(e)
If the permit holder does not respond to the written notice
of violation within 15 calendar days or requests a hearing, a hearing will
be set. The hearing shall be governed by §§1.1-1.42 of this title
(relating to Practice and Procedure).
(f)
An oral administrative hearing will be held at the office
of the Comptroller of Public Accounts in Austin, Texas. The recourse for a
permit holder who does not agree with the administrative decision will be
governed by the provisions of Tax Code, Chapter 111; Government Code, Chapter
2001; and §§1.1-1.42 of this title.
(g)
The burden of proof in an administrative hearing pursuant
to this rule is by a preponderance of the evidence, unless otherwise provided
by statute.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Issued in Austin, Texas, on January 2, 1998.
TRD-9800023
Martin Cherry
Chief, General Law
Comptroller of Public Accounts
Effective date: January 22, 1998
Proposal publication date: October 31, 1997
For further information, please call: (512) 463-3699