Bill Text: MI SB0574 | 2021-2022 | 101st Legislature | Introduced
Bill Title: Tobacco: other; compliance checks for the sale of tobacco products, vapor products, or alternative nicotine products to minors; provide for and prescribe penalties. Amends sec. 1 of 1915 PA 31 (MCL 722.641). TIE BAR WITH: SB 0575'21, SB 0573'21, SB 0572'21
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2021-06-24 - Referred To Committee On Regulatory Reform [SB0574 Detail]
Download: Michigan-2021-SB0574-Introduced.html
SENATE BILL NO. 574
A bill to amend 1915 PA 31, entitled
"Youth tobacco act,"
by amending section 1 (MCL 722.641), as amended by 2019 PA 18.
the people of the state of michigan enact:
Sec. 1. (1) A person shall not sell, give, or furnish a tobacco product, vapor product, or alternative nicotine product to a minor, including, but not limited to, through a vending machine. A person who violates this subsection or subsection (8) (13) or (14) is guilty of a misdemeanor punishable by a fine as follows:
(a) For a first offense, not more than $100.00.
(b) For a second offense, not more than $500.00.
(c) For a third or subsequent offense, not more than $2,500.00.
(2) A sales clerk, agent, or employee of a person who sells tobacco products, vapor products, or alternative nicotine products at retail who knowingly sells or furnishes a tobacco product, vapor product, or alternative nicotine product to a minor, or who fails to make diligent inquiry as to whether the individual is a minor, is responsible for a state civil infraction and may be ordered to pay a fine of not more than $250.00.
(3) (2) A person who sells tobacco products, vapor products, or alternative nicotine products at retail shall post, in a place close to the point of sale, unobstructed, and conspicuous to both employees and customers, a sign produced by the department of health and human services that includes the following statement:
"The purchase of a tobacco product, vapor product, or alternative nicotine product by a minor under 18 21 years of age and the provision of a tobacco product, vapor product, or alternative nicotine product to a minor are prohibited by law. A minor who unlawfully purchases or uses a tobacco product, vapor product, or alternative nicotine product is subject to criminal penalties.".
(4) (3) If the sign required under subsection (2) (3) is more than 6 feet from the point of sale, it must be 5-1/2 inches by 8-1/2 inches and the statement required under subsection (2) (3) must be printed in 36-point boldfaced type. If the sign required under subsection (2) (3) is 6 feet or less from the point of sale, it must be 2 inches by 4 inches and the statement required under subsection (2) (3) must be printed in 20-point boldfaced type.
(5) (4) The department of health and human services shall produce the sign required under subsection (2) (3) and have adequate copies of the sign ready for distribution to licensed wholesalers, secondary wholesalers, and unclassified acquirers of tobacco products and to persons who sell vapor products or alternative nicotine products at retail free of charge. Licensed wholesalers, secondary wholesalers, and unclassified acquirers of tobacco products shall obtain copies of the sign from the department of health and human services and distribute them free of charge, upon on request, to persons who sell tobacco products and who are subject to subsection (2). (3). The department of health and human services shall provide copies of the sign free of charge, upon on request, to persons subject to subsection (2) (3) who do not purchase their supply of tobacco products from wholesalers, secondary wholesalers, and unclassified acquirers of tobacco products licensed under the tobacco products tax act, 1993 PA 327, MCL 205.421 to 205.436, and to persons who sell vapor products or alternative nicotine products at retail.
(6) Beginning January 1, 2022, the local law enforcement department for a city, village, township, or county in which a licensed premises is located may conduct unannounced compliance checks at any time during the open hours of the licensed premises by engaging individuals under 21 years of age to enter into the licensed premises to attempt to purchase a tobacco product, vapor product, or alternative nicotine product. If a licensed premises fails a first compliance check, the local law enforcement department shall give the licensee of the licensed premises the opportunity to demonstrate that the licensee has a compliance plan in place for identifying the cause of the problem and a remediation plan for addressing the sale of tobacco products, vapor products, or alternative nicotine products to minors. The local law enforcement department shall, not less than 3 months after the failed compliance check, conduct an unannounced follow-up compliance check on the licensed premises that failed the compliance check.
(7) If a licensee's licensed premises fails a second unannounced compliance check under subsection (6) in a calendar year, after being given the opportunity to demonstrate that the licensee has a compliance plan and a remediation plan, the licensee is responsible for a state civil infraction or guilty of a crime as follows:
(b) For a second violation, the licensee is responsible for a state civil infraction and may be fined not more than $3,000.00.
(c) For a third violation, the licensee is responsible for a state civil infraction and may be fined not more than $4,000.00.
(d) For a fourth violation, the licensee is guilty of a misdemeanor punishable by a fine of not more than $5,000.00, and the licensee's licensed premises shall not sell a tobacco product, vapor product, or alternative nicotine product for a minimum of 7 days.
(e) For a fifth or subsequent violation, the licensee is guilty of a misdemeanor punishable by a fine of not more than $6,000.00, and the licensee's licensed premises shall not sell a tobacco product, vapor product, or alternative nicotine product for a minimum of 14 days.
(8) If a licensee's licensed premises complies with subsections (3), (4), (13), and (14), and the licensee shows that his or her employees were trained to properly conduct age verification under this act, and that the licensee has an employee handbook or manual outlining the age verification requirements under this act, but the licensed premises fails a second unannounced compliance check under subsection (6) in a calendar year, the licensee is responsible for a state civil infraction or guilty of a crime as follows:
(a) For a first violation, the licensee is responsible for a state civil infraction and may be fined not more than $150.00.
(b) For a second violation, the licensee is responsible for a state civil infraction and may be fined not more than $1,500.00.
(c) For a third violation, the licensee is responsible for a state civil infraction and may be fined not more than $2,000.00.
(d) For a fourth violation, the licensee is guilty of a misdemeanor punishable by a fine of not more than $2,500.00, and the licensee's licensed premises shall not sell a tobacco product, vapor product, or alternative nicotine product for a minimum of 3 days.
(e) For a fifth or subsequent violation, the licensee is guilty of a misdemeanor punishable by a fine of not more than $5,000.00, and the licensee's licensed premises shall not sell a tobacco product, vapor product, or alternative nicotine product for a minimum of 7 days.
(9) A local law enforcement department shall report the results of all compliance checks to the department. The department shall publish the results of all compliance checks at least annually and make them available to the public on request.
(10) (5) It is an affirmative defense to a charge under subsection (1) that the defendant had in force at the time of arrest and continues to have in force a written policy to prevent the sale of tobacco products, vapor products, or alternative nicotine products, as applicable, to persons under 18 years of age and that the defendant enforced and continues to enforce the policy. A defendant who proposes to offer evidence of the affirmative defense described in this subsection shall file notice of the defense, in writing, with the court and serve a copy of the notice on the prosecuting attorney. The defendant shall serve the notice not less than 14 days before the date set for trial.It is an affirmative defense to a charge under subsections (1) and (2) that the defendant demanded, was shown, and reasonably relied on bona fide documentary evidence of the age and identity of the minor, and that the defendant reasonably relied on the bona fide documentary evidence before selling, offering for sale, giving, or furnishing a tobacco product, vapor product, or alternative nicotine product to the minor.
(11) (6) A prosecuting attorney who proposes to offer testimony to rebut the affirmative defense described in subsection (5) (10) shall file a notice of rebuttal, in writing, with the court and serve a copy of the notice on the defendant. The prosecuting attorney shall serve the notice not less than 7 days before the date set for trial and shall include in the notice the name and address of each rebuttal witness.
(12) (7) Subsection (1) does not apply to the handling or transportation of a tobacco product, vapor product, or alternative nicotine product by a minor under the terms of the minor's employment.
(13) (8) Before selling, offering for sale, giving, or furnishing a tobacco product, vapor product, or an alternative nicotine product, or, until December 31, 2021, a vapor product to an individual, a person shall verify that the individual is at least 18 21 years of age by doing 1 of the following:
(a) If the individual appears to be under 27 years of age, examining a government-issued photographic identification bona fide documentary evidence that establishes that the individual is at least 18 21 years of age.
(14) Beginning January 1, 2022, before selling, offering for sale, giving, or furnishing a vapor product to an individual, a person shall verify that the individual is at least 21 years of age by doing 1 of the following:
(a) Scanning bona fide documentary evidence to verify that the purchaser is at least 21 years of age and that the photographic identification has not expired.
(b) For sales made by the internet or other remote sales method, performing an age verification through an independent, third-party age verification service that compares information available from a commercially available database, or aggregate of databases, that are regularly used by government agencies and businesses for the purpose of age and identity verification to the personal information entered by the individual during the ordering process that establishes that the individual is 21 years of age or older.
(15) In addition to the penalties provided in this act, a local legislative body, by resolution, may request that the department of treasury revoke the license of a licensee whose licensed premises is located within the local legislative body's jurisdiction and who has been determined to have violated this act on at least 3 separate occasions in a consecutive 12-month period. If the department of treasury verifies that the licensee who is the subject of the resolution has been found to have committed the violations as prescribed in this subsection, the department of treasury may suspend or revoke the licensee's license.
(16) As used in this section:
(a) "Bona fide documentary evidence" means a document issued by a federal government, state government, or municipality that includes a photo and the date of birth of the individual.
(b) "Department" means the department of health and human services.
(c) "Diligent inquiry" means a diligent good-faith effort to determine the age of an individual that includes at least 1 of the following:
(i) 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 documentary evidence that establishes the identity and age of the individual.
(ii) Use of a secure identity verification device if all of the following conditions are met:
(A) The electronic scan of a biometric of the individual is referenced against any form of picture identification described in subparagraph (i).
(B) The authenticity of the picture identification was previously verified by an electronic authentication process.
(C) The identity of the individual was previously verified through a commercially available knowledge-based electronic authentication process.
(D) The authenticated picture identification was securely linked to biometrics contemporaneously collected from the individual.
(d) "Municipality" means a county, township, city, village, school district, intermediate school district, community college district, metropolitan district, district library, or another governmental authority or agency in this state that has the power to issue bona fide documentary evidence.
(e) "Sales clerk" means an individual who sells tobacco products, vapor products, or alternative nicotine products in a licensed premises and who is not the licensee of the licensed premises.
(f) "Secure identity verification device" means a commercial device that instantly verifies the identity and age of an individual by an electronic scan of a biometric of the individual.
Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 101st Legislature are enacted into law:
(a) Senate Bill No. 572.
(b) Senate Bill No. 575.
(c) Senate Bill No. 573.
(d) Senate Bill No.____ or House Bill No.____ (request no. 01404'21).
