Bill Text: MI HB5198 | 2009-2010 | 95th Legislature | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft
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 Senate, December 2, 2010

 

 

 

 

 

 

 

 

 

 

 

SENATE 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. For a

 

second or subsequent offense, the secretary of state shall 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 takes effect June 30,

 

2011.

 

     Enacting section 2. This amendatory act does not take effect

 

unless House Bill No. 5199 of the 95th Legislature is enacted into

 

law.

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