19 Miss. Code. R. 7-10.08 - Violations and Penalties

The Commissioner shall have the ability to issue penalties due to violations of the Act or Regulation, as more specifically stated in this Section.

A. The following are violations that will result in administrative action by the Commissioner:

1. A manufacturer, wholesale dealer, agent or any other person or entity who knowingly sells or offers to sell cigarettes, other than through retail sale, in violation of Section 45-12-5, shall be subject to a civil penalty not to exceed One Hundred Dollars ($ 100.00) for each pack of such cigarettes sold or offered for sale, provided that in no case shall the penalty against any such person or entity exceed One Hundred Thousand Dollars ($ 100,000.00) during any thirty-day period.

2. A retail dealer who knowingly sells or offers to sell cigarettes in violation of Section 45-12-5 shall be subject to a civil penalty not to exceed One Hundred Dollars ($ 100.00) for each pack of such cigarettes sold or offered for sale, provided that in no case shall the penalty against any retail dealer exceed Twenty-five Thousand Dollars ($ 25,000.00) for sales or offers to sale during any thirty-day period.

3. In addition to any penalty prescribed by law, any corporation, partnership, sole proprietor, limited partnership or association engaged in the manufacture of cigarettes that knowingly makes a false certification pursuant to Section 45-12-7 shall be subject to a civil penalty of at least Seventy-five Thousand Dollars ($ 75,000.00) and not to exceed Two Hundred Fifty Thousand Dollars ($ 250,000.00) for each such false certification.

4. Any person violating any other provision in this section shall be liable for a civil penalty for a first offense not to exceed One Thousand Dollars ($ 1,000.00), and for a subsequent offense shall be liable for a civil penalty not to exceed Five Thousand Dollars ($ 5,000.00), for each such violation.

B. Whenever any law enforcement personnel or duly authorized representative of the State Fire Marshal shall discover any cigarettes (a) for which no certification has been filed as required by Section 45-12-7, or (b) that have not been marked as required by Section 45-12-9, such personnel is hereby authorized and empowered to seize and take possession of such cigarettes.

1. Cigarettes seized pursuant to this section shall be destroyed; provided, however, that prior to the destruction of any cigarette seized pursuant to these provisions, the true holder of the trademark rights in the cigarette brand shall be permitted to inspect the cigarette.

i. The true holder of trademark right in the cigarette brand of the products to be destroyed shall have twenty (25) days from the date of notice to the holder of trademark right to inspect the products prior to the cigarettes being destroyed.

C. In addition to any other remedy provided by law, the Attorney General may file an action in the circuit court of the county in which such alleged violation of this chapter occurred, including petitioning (a) for preliminary or permanent injunctive relief against any manufacturer, importer, wholesale dealer, retail dealer, agent or any other person or entity to enjoin such entity from selling, offering to sell, or affixing tax stamps to any cigarette that does not comply with the requirements of this chapter, or (b) to recover any costs or damages suffered by the state because of a violation of this chapter, including enforcement costs relating to the specific violation and attorney's fees. Each violation of this chapter or of rules or regulations adopted under this chapter constitutes a separate civil violation for which the State Fire Marshal or Attorney General may obtain relief. Upon obtaining judgment for injunctive relief under this section, the State Fire Marshal or Attorney General shall provide a copy of the judgment to all wholesale dealers and agents to which the cigarette has been sold.

D. Notice and Hearing

1. Before any fines are issued, the State Fire Marshal shall give the manufacturer, wholesale dealer, agent, retailer or any other person or entity in violation at least twenty-five (25) days written notice of his intention to hold a hearing on this matter. Service shall be by certified mail, return receipt, or by personal service.

2. The hearing shall be conducted pursuant to the Department's Rules of Practice and Procedure before the Mississippi Insurance Department, Regulation 88-101.

3. When a hearing is to be held before the State Fire Marshal, the State Fire Marshal shall give written notice thereof to the manufacturer, wholesale dealer, agent, retailer or any other person or entity allegedly in violation. The notice shall set forth the reason for the hearing, the questions or issues to be decided by the State Fire Marshal at such hearing, and the time for and place where the hearing will be held. All such notices shall be mailed to all parties whose rights may be affected by such hearing by registered or certified mail, addressed to their last known address, or via personal service.

4. All parties whose rights may be affected at any hearing before the State Fire Marshal shall have the right to appear personally and by counsel, to cross-examine witnesses appearing against them, and to produce evidence and witnesses in their own behalf. The State Fire Marshal shall make and keep a record of each such hearing and shall provide a transcript thereof to any interested party upon such party's written request and at the party's expense. The State Fire Marshal will provide a transcript to the requesting party AFTER receiving payment for the transcript. Testimony taken at all hearings shall be taken either stenographically or by machine.

5. If any party who is notified of a hearing as outlined herein fails to appear at such hearing, either in person or by counsel, the State Fire Marshal may make any decision and take any action he deems necessary or appropriate with respect to any issues or questions scheduled for the hearing. In accordance with the applicable Mississippi law and this Regulation, the defaulting party shall have no right to appeal such a decision of the State Fire Marshal.

6. All decisions of the State Fire Marshal with respect to the hearings provided for in this section shall be incorporated into orders of the State Fire Marshal. All such orders shall be made available during normal office hours for inspection by interested persons.

7. It shall be the duty of the sheriffs and constables of the counties of this state and of any employee of the State Fire Marshal, when so directed by the State Fire Marshal, to execute any summons, citation, or subpoena which the State Fire Marshal may cause to be issued and to make his return thereof to the State Fire Marshal. The sheriffs and constables so serving and returning same shall be paid for so doing the same fees provided for such services in circuit court. Any person who appears before the State Fire Marshal or a duly designated employee of his department in response to a summons, citation, or subpoena shall be paid the same witness fee and mileage allowance as witnesses in the circuit court. In case of failure or refusal on the part of any person to comply with any summons, citation, or subpoena issued and served as above authorized or in the case of the refusal of any person to testify or answer to any matter regarding which he may be lawfully interrogated or the refusal of any person to produce his record books and accounts relating to any matter regarding which he may be lawfully interrogated, the chancery court of any county of the State of Mississippi, or any chancellor of any such court in vacation, may, on application of the State Fire Marshal, issue an attachment for such person and compel him to comply with such summons, citation, or subpoena and to attend before the State Fire Marshal or his designated employee and to produce the documents specified in any subpoena duces tecum and give his testimony upon such matters as he may be lawfully required. Any such chancery court, or any chancellor of any such court in vacation, shall have the power to punish for contempt, as in case of disobedience of like process issued from or by any such chancery court, or by refusal to testify therein in response to such process, and such person shall be taxed with the costs of such proceedings.

8. No decision of the State Fire Marshal made as a result of a hearing under the provisions of this section shall become final with respect to any party affected and aggrieved by such decision until such party shall have exhausted or shall have had an opportunity to exhaust all of his remedies provided for by this section; provided, however, any such decision may be made final if the State Fire Marshal finds that failure to do so would be detrimental to the public interest or public welfare, but the finality of any such decision shall not prevent any party or parties affected and aggrieved thereby to appeal the same in accordance with the appellate procedure set forth in this section.

9. The following procedure shall govern in taking and perfecting appeals:

i. Any person who is a party to any hearing before the State Fire Marshal and who is aggrieved by any decision of the State Fire Marshal with respect to any hearing before him, unless prevented by the provisions of paragraph 5 of this section, shall have the right of appeal to the chancery court of the First Judicial District of Hinds County. If any such person is a nonresident of this state, he shall have the right of appeal to the chancery court of the first judicial district of Hinds County, Mississippi. All such appeals shall be taken and perfected within sixty (60) days from the date of the decision of the State Fire Marshal which is the subject of the appeal. The chancery court to which such appeal is taken may affirm such decision or reverse and remand the same to the State Fire Marshal for further proceedings as justice may require or dismiss such decision. All such appeals shall be taken and perfected, heard and determined, either in term time or in vacation, on the record, including a transcript of pleadings and evidence, both oral and documentary, heard and filed before the State Fire Marshal. In perfecting any appeal provided by herein, the provisions of law respecting notice to the reporter and allowance of bills of exceptions, now or hereafter in force, respecting appeals from the chancery court to the supreme court shall be applicable, provided, however, that the reporter shall transcribe his notes, taken stenographically or by machine, and file the record with the State Fire Marshal within thirty (30) days after approval of the appeal bond, unless, on application of the reporter, or of the appellant, an additional fifteen (15) days shall have been allowed by the State Fire Marshal to the reporter within which to transcribe his notes and file the transcript of the record with the State Fire Marshal.

ii. Upon the filing with the State Fire Marshal of a petition of appeal to the chancery court of the First Judicial District of Hinds County, it shall be the duty of the State Fire Marshal, as promptly as possible, and in any event within sixty (60) days after approval of the appeal bond, to file with the clerk of said chancery court to which the appeal is taken, a copy of the petition for appeal and of the decision appealed from, and the original and one (1) copy of the transcript of the record of the proceedings and evidence before the State Fire Marshal After the filing of said petition, the appeal shall be perfected by the filing of a bond in the penal sum of Five Hundred Dollars ($500.00) with two (2) sureties or with a surety company qualified to do business in Mississippi as surety, conditioned to pay the costs of such appeal, said bond to be approved by the State Fire Marshal or by the clerk of the chancery court to which such appeal is taken.

10. Nothing in this Regulation shall prohibit informal disposition by settlement or consent order, i.e., an order based upon an agreement in writing, between the parties in lieu of an administrative hearing.

Notes

19 Miss. Code. R. 7-10.08

Miss. Code Ann. § 45-12-11 (Supp. 2012)