HB-5396, As Passed House, May 9, 2006

SUBSTITUTE FOR

HOUSE BILL NO. 5396

     A bill to amend 1915 PA 31, entitled

"Youth tobacco act,"

by amending the title and sections 1, 2, and 4 (MCL 722.641,

722.642, and 722.644), the title and section 4 as amended by 1992

PA 272 and sections 1 and 2 as amended by 1988 PA 314.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

     An act to prohibit the selling, giving, or furnishing of

tobacco products to minors; to prohibit the purchase, possession,

or use of tobacco products by minors;  to prohibit the harboring of

minors for the purpose of indulging in the use of tobacco products;

to regulate the retail sale of tobacco products; to prescribe

penalties; and to prescribe the powers and duties of certain state

agencies and departments.

     Sec. 1. (1) A person shall not sell, give, or furnish  any

cigarette, cigar, chewing tobacco, tobacco snuff, or tobacco in any

other form  a tobacco product to a  person under 18 years of age

minor. A person who violates this  section  subsection is guilty of

a misdemeanor  , punishable by a fine of not more than $50.00 for

each  offense  violation.

     (2)  Beginning 90 days after the effective date of this

subsection, a  A person who sells tobacco products at retail shall

post, in a place close to the point of sale and conspicuous to both

employees and customers, a sign produced by the department of

public  community health that includes the following statement:

     "The purchase of tobacco products by a minor under 18 years of

age and the provision of tobacco products to a minor are prohibited

by law. A minor unlawfully purchasing or using tobacco products is

subject to criminal penalties.".

     (3) If the sign required under subsection (2) is more than 6

feet from the point of sale, it shall be 5-1/2 inches by 8-1/2

inches  , and the statement required under subsection (2) shall be

printed in 36-point  boldface  boldfaced type. If the sign required

under subsection (2) is 6 feet or less from the point of sale, it

shall be 2 inches by 4 inches  , and the statement required under

subsection (2) shall be printed in 20-point  boldface  boldfaced

type.

     (4) The department of  public  community health shall produce

the sign required under subsection (2) and have adequate copies of

the sign ready for distribution to licensed wholesalers, secondary

wholesalers, and unclassified acquirers of  cigarettes and other

tobacco products  described in subsection (1) free of charge.

within 60 days after the effective date of this subsection.

Licensed wholesalers, secondary wholesalers, and unclassified

acquirers of  cigarettes and other tobacco products  described in

subsection (1) shall obtain copies of the sign from the department

of  public  community health and distribute them free of charge,

upon request, to persons who are subject to subsection (2). The

department of  public  community health shall provide copies of the

sign free of charge, upon request, to persons subject to subsection

(2) who do not purchase their supply of  cigarettes or other

tobacco products  described in subsection (1) from  licensed

wholesalers, secondary wholesalers, and unclassified acquirers of

cigarettes and other tobacco products  described in subsection (1)

licensed under the tobacco products tax act, 1993 PA 327, MCL

205.421 to 205.436.

     (5) It is an affirmative defense to a charge  pursuant to

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  cigarettes, cigars, chewing tobacco, tobacco snuff,

and other tobacco products 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 and

serve notice of the defense, in writing, upon the court and the

prosecuting attorney. The notice shall be served not less than 14

days before the date set for trial.

     (6) A prosecuting attorney who proposes to offer testimony to

rebut the affirmative defense described in subsection (5) shall

file and serve a notice of rebuttal, in writing, upon the court and

the defendant. The notice shall be served not less than 7 days

before the date set for trial  , and shall contain the name and

address of each rebuttal witness.

     (7) Subsection (1) does not apply to the handling or

transportation of a tobacco product by a minor under the terms of

that minor's employment.

     Sec. 2. (1)  A person under 18 years of age shall not possess

or smoke cigarettes or cigars; or possess or chew, suck, or inhale

chewing tobacco or tobacco snuff; or possess or use tobacco in any

other form, on a public highway, street, alley, park, or other

lands used for public purposes, or in a public place of business or

amusement. A person  Subject to subsection (3), a minor shall not

do any of the following:

     (a) Purchase or attempt to purchase a tobacco product.

     (b) Possess or attempt to possess a tobacco product.

     (c) Use a tobacco product in a public place.

     (d) Present or offer to an individual a purported proof of age

that is false, fraudulent, or not actually his or her own proof of

age for the purpose of purchasing, attempting to purchase,

possessing, or attempting to possess a tobacco product.

     (2) An individual who violates  this section  subsection (1)

is guilty of a misdemeanor  , punishable by a fine of not more

than $50.00 for each  offense  violation. Pursuant to a probation

order, the court may also require  a person  an individual who

violates  this section  subsection (1) to participate in a health

promotion and risk reduction assessment program, if available.  A

probationer  An individual who is ordered to participate in a

health promotion and risk reduction assessment program under this

section  subsection is responsible for the costs of participating

in the program. In addition,  a person  an individual who violates

this section  subsection (1) is subject to the following:

     (a) For the first violation, the court may order the  person

individual to do 1 of the following:

     (i) Perform not more than 16 hours of community service in a

hospice, nursing home, or long-term care facility.

     (ii) Participate in a health promotion and risk reduction

program, as described in this subsection.

     (b) For a second violation, in addition to participation in a

health promotion and risk reduction program, the court may order

the  person  individual to perform not more than 32 hours of

community service in a hospice, nursing home, or long-term care

facility.

     (c) For a third or subsequent violation, in addition to

participation in a health promotion and risk reduction program, the

court may order the  person  individual to perform not more than 48

hours of community service in a hospice, nursing home, or long-term

care facility.

     (3) Subsection (1) does not apply to a minor participating in

either or both of the following:

     (a) An undercover operation in which the minor purchases or

receives a tobacco product under the direction of the minor's

employer and with the prior approval of the local prosecutor's

House Bill No. 5396 (H-1) as amended May 9, 2006

office as part of an employer-sponsored internal enforcement

action.

     (b) An undercover operation in which the minor purchases or

receives a tobacco product under the direction of the state police

or a local police agency as part of an enforcement action, unless

the initial or contemporaneous purchase or receipt of the tobacco

product by the minor was not under the direction of the state

police or the local police agency and was not part of the

undercover operation.

[(4) Subsection (1) does not apply to the handling or transportation of a tobacco product by a minor under the terms of that minor's employment.

(5)] This section does not prohibit the individual from being

charged with, convicted of, or sentenced for any other violation of

law arising out of the violation of subsection (1).

     Sec. 4. As used in this act:

     (a) "Chewing tobacco" means loose tobacco or a flat,

compressed cake of tobacco that is inserted into the mouth to be

chewed or sucked.

     (a) "Minor" means an individual under 18 years of age.

     (b) "Person who sells tobacco products at retail" means a

person whose ordinary course of business consists, in whole or in

part, of the retail sale of tobacco products subject to state sales

tax.

     (c) "Tobacco snuff" means shredded, powdered, or pulverized

tobacco that may be inhaled through the nostrils, chewed, or placed

against the gums.

     (c) "Public place" means a public street, sidewalk, or park or

any area open to the general public in a publicly owned or operated

building or public place of business.

     (d) "Tobacco product" means a product that contains tobacco

and is intended for human consumption, including, but not limited

to, cigarettes, noncigarette smoking tobacco, or smokeless tobacco,

as those terms are defined in section 2 of the tobacco products tax

act, 1993 PA 327, MCL 205.422, and cigars.

     (e) "Use a tobacco product" means to smoke, chew, suck,

inhale, or otherwise consume a tobacco product.

     Enacting section 1.  This amendatory act takes effect

September 1, 2006.