HB-4444, As Passed House, May 14, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 4444

     A bill to amend 1915 PA 31, entitled

"Youth tobacco act,"

by amending section 1 (MCL 722.641), as amended by 2006 PA 236.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

tobacco product to a minor. A person who violates this subsection

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

$50.00 for each violation. 1 of the following fines:

     (a) If the violation of this subsection is not a violation

described in subdivision (b), 1 of the following:

     (i) A fine of not more than $100.00 for a first violation of

this subsection or a subsequent violation that is not described in

subparagraph (ii) or (iii).

     (ii) Unless subparagraph (iii) applies, a fine of not more than

$250.00 for a violation of this subsection that occurs within 3

years of a violation described in subparagraph (i).

     (iii) A fine of not more than $500.00 for a violation of this

subsection that occurs within 3 years of a violation described in

subparagraph (ii).

     (b) If the violation of this subsection is an internet, mail

order, or telephone sale of a tobacco product to a person under 18

years of age, 1 of the following:

     (i) A fine of not more than $500.00 for a first violation of

this subsection or a subsequent violation that is not described in

subparagraph (ii) or (iii).

     (ii) Unless subparagraph (iii) applies, a fine of not more than

$1,000.00 for a violation of this subsection that occurs within 3

years of a violation described in subparagraph (i).

     (iii) A fine of not more than $2,000.00 for a violation of this

subsection that occurs within 3 years of a violation described in

subparagraph (ii).

     (2) 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

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 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 boldfaced type.

     (4) The department of 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 tobacco products free of

charge. Licensed wholesalers, secondary wholesalers, and

unclassified acquirers of tobacco products shall obtain copies of

the sign from the department of community health and distribute

them free of charge, upon request, to persons who are subject to

subsection (2). The department of 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 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.

     (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 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

House Bill No. 4444 (H-1) as amended May 14, 2008

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.

     (8) A person who sells tobacco products at retail or a clerk,

agent, or employee of a person who sells tobacco products at retail

cannot be convicted of a misdemeanor under subsection (1) unless

the minor to whom the tobacco product was sold, given, or furnished

is charged with a misdemeanor for violating section 2 in connection

with the transaction. This subsection does not apply if the minor

to whom the tobacco product was sold, given, or furnished was

acting in an undercover operation in obtaining the tobacco product.

[(9) An arresting law enforcement agency in this state may take

 the fingerprints of a person upon the arrest of that person for a misdemeanor described in subsection (1) and forward the fingerprints to the department of state police, as provided in section 3(5) of 1925 PA 289, MCL 28.243.]