Bill Text: MI HB5198 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Liquor; licenses; provision regarding furnishing alcoholic beverages to a minor; revise penalties. Amends sec. 701 of 1998 PA 58 (MCL 436.1701). TIE BAR WITH: HB 5199'09
Spectrum: Strong Partisan Bill (Democrat 10-1)
Status: (Passed) 2010-12-15 - Assigned Pa 266'10 With Immediate Effect [HB5198 Detail]
Download: Michigan-2009-HB5198-Engrossed.html
HB-5198, As Passed House, April 28, 2010
SUBSTITUTE FOR
HOUSE BILL NO. 5198
A bill to amend 1998 PA 58, entitled
"Michigan liquor control code of 1998,"
by amending section 701 (MCL 436.1701), as amended by 2006 PA 682.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 701. (1) Alcoholic liquor shall not be sold or furnished
to a minor. Except as otherwise provided in subsection (2) and
subject to subsections (4), (5), and (6), a person who knowingly
sells or furnishes alcoholic liquor to a minor, or who fails to
make diligent inquiry as to whether the person is a minor, is
guilty of a misdemeanor. A retail licensee or a retail licensee's
clerk, agent, or employee who violates this subsection shall be
punished in the manner provided for licensees in section 909 except
that if the violation is the result of an undercover operation in
which the minor received alcoholic liquor under the direction of
the state police, the commission, or a local police agency as part
of an enforcement action, the retail licensee's clerk, agent, or
employee is responsible for a state civil infraction and may be
ordered to pay a civil fine of not more than $100.00. Except as
otherwise provided in subsection (2), a person who is not a retail
licensee or a retail licensee's clerk, agent, or employee and who
violates this subsection is guilty of a misdemeanor punishable by a
fine of not more than $1,000.00 and imprisonment for not more than
60 days for a first offense, a fine of not more than $2,500.00 and
imprisonment for not more than 90 days for a second or subsequent
offense, and may be ordered to perform community service. The
sentencing court may order the secretary of state to suspend the
operator's or chauffeur's license of an individual who is not a
retail licensee or retail licensee's clerk, agent, or employee and
who is convicted of violating this subsection as provided in
section 319 of the Michigan vehicle code, 1949 PA 300, MCL 257.319.
A suitable sign describing the content of this section and the
penalties for its violation shall be posted in a conspicuous place
in each room where alcoholic liquor is sold. The signs shall be
approved and furnished by the commission.
(2) A person who is not a retail licensee or the retail
licensee's clerk, agent, or employee and who violates subsection
(1) is guilty of a felony, punishable by imprisonment for not more
than 10 years or a fine of not more than $5,000.00, or both, if the
subsequent consumption of the alcoholic liquor by the minor is a
direct and substantial cause of that person's death or an
accidental injury that causes that person's death.
(3) If a violation occurs in an establishment that is licensed
by the commission for consumption of alcoholic liquor on the
licensed premises, a person who is a licensee or the clerk, agent,
or employee of a licensee shall not be charged with a violation of
subsection (1) or section 801(2) unless the licensee or the clerk,
agent, or employee of the licensee knew or should have reasonably
known with the exercise of due diligence that a person less than 21
years of age possessed or consumed alcoholic liquor on the licensed
premises and the licensee or clerk, agent, or employee of the
licensee failed to take immediate corrective action.
(4) If the enforcing agency involved in the violation is the
state police or a local police agency, a licensee shall not be
charged with a violation of subsection (1) or section 801(2) unless
all of the following occur, if applicable:
(a) Enforcement action is taken against the minor who
purchased or attempted to purchase, consumed or attempted to
consume, or possessed or attempted to possess alcoholic liquor.
(b) Enforcement action is taken under this section against the
person 21 years of age or older who is not the retail licensee or
the retail licensee's clerk, agent, or employee who sold or
furnished the alcoholic liquor to the minor.
(c) Enforcement action under this section is taken against the
clerk, agent, or employee who directly sold or furnished alcoholic
liquor to the minor.
(5) If the enforcing agency is the commission and an
appearance ticket or civil infraction citation has not been issued,
then the commission shall recommend to a local law enforcement
agency that enforcement action be taken against a violator of this
section or section 703 who is not a licensee. However, subsection
(4) does not apply if the minor against whom enforcement action is
taken under section 703, the clerk, agent, or employee of the
licensee who directly sold or furnished alcoholic liquor to the
minor, or the person 21 years of age or older who sold or furnished
alcoholic liquor to the minor is not alive or is not present in
this state at the time the licensee is charged. Subsection (4)(a)
does not apply under either of the following circumstances:
(a) The violation of subsection (1) is the result of an
undercover operation in which the minor purchased or received
alcoholic liquor under the direction of the person's employer and
with the prior approval of the local prosecutor's office as part of
an employer-sponsored internal enforcement action.
(b) The violation of subsection (1) is the result of an
undercover operation in which the minor purchased or received
alcoholic liquor under the direction of the state police, the
commission, or a local police agency as part of an enforcement
action.
(6) Any initial or contemporaneous purchase or receipt of
alcoholic liquor by the minor under subsection (5)(a) or (b) must
have been under the direction of the state police, the commission,
or the local police agency and must have been part of the
undercover operation.
(7) If a minor participates in an undercover operation in
which the minor is to purchase or receive alcoholic liquor under
the supervision of a law enforcement agency, his or her parents or
legal guardian shall consent to the participation if that person is
less than 18 years of age.
(8) In an action for the violation of this section, proof that
the defendant or the defendant's agent or employee demanded and was
shown, before furnishing alcoholic liquor to a minor, a motor
vehicle operator's or chauffeur's license, a military
identification card, or other bona fide documentary evidence of the
age and identity of that person, shall be a defense to an action
brought under this section.
(9) The commission shall provide, on an annual basis, a
written report to the department of state police as to the number
of actions heard by the commission involving violations of this
section and section 801(2). The report shall include the
disposition of each action and contain figures representing the
following categories:
(a) Decoy operations.
(b) Off-premises violations.
(c) On-premises violations.
(d) Repeat offenses within the 3 years preceding the date of
that report.
(10) As used in this section:
(a) "Corrective action" means action taken by a licensee or a
clerk, agent, or employee of a licensee designed to prevent a minor
from further possessing or consuming alcoholic liquor on the
licensed premises. Corrective action includes, but is not limited
to, contacting a law enforcement agency and ejecting the minor and
any other person suspected of aiding and abetting the minor.
(b) "Diligent inquiry" means a diligent good faith effort to
determine the age of a person, which includes at least an
examination of an official Michigan operator's or chauffeur's
license, an official Michigan personal identification card, a
military identification card, or any other bona fide picture
identification which establishes the identity and age of the
person.
Enacting section 1. This amendatory act does not take effect
unless House Bill No. 5199 of the 95th Legislature is enacted into
law.
