HOUSE BILL NO. 4041

January 15, 2019, Introduced by Reps. Calley, Brann and Sabo and referred to the Committee on Regulatory Reform.

"The Michigan penal code,"

by amending sections 42b and 470 (MCL 750.42b and 750.470), section 42b as added by 1992 PA 273 and section 470 as amended by 1998 PA 38.

the people of the state of michigan enact:

Sec. 42b. (1) Except as provided in subsection (3), a person shall not sell or distribute a tobacco product or tobacco paraphernalia in this state through the use of the United States mail service, express mail service, parcel post service, or any common carrier service except to persons who have previously paid or agreed to pay for the products at fair market value. This subsection shall does not be construed to apply to any person employed by the United States postal service Postal Service or by any common carrier while carrying or delivering a tobacco product or tobacco paraphernalia mailed or shipped by another person.

(2) A person shall not, as part of his, her, or its business, either directly or through an agent, distribute tobacco products or tobacco paraphernalia to persons who did not previously pay or agree to pay for the products unless all of the following provisions are met:

(a) The person or agent distributing the tobacco product or tobacco paraphernalia distributes only tobacco products or tobacco paraphernalia regularly sold or manufactured by that person or agent.

(b) The person distributing the tobacco product or tobacco paraphernalia ascertains that the person receiving the tobacco product or tobacco paraphernalia is 18 21 years of age or older.

(d) Distribution is not prohibited by any local ordinance.

(3) Subsection (1) does not prohibit the sale or distribution of a tobacco product or tobacco paraphernalia in this state through the use of the United States mail service, express mail service, parcel post service, or any common carrier service if the sale or distribution is in response to a consumer complaint or is part of a direct mail marketing of products to specifically named individuals, and which response or marketing involves the prior return by the same specifically-named individual of an authorization card to the tobacco product or tobacco paraphernalia company that indicates that the individual is at least 18 21 years of age, is signed by the individual and is kept on file by the tobacco product or tobacco paraphernalia company for at least 1 year.

(4) A person who violates subsection (1) is guilty of a misdemeanor , punishable by imprisonment for not more than 1 year , or by a fine of not more than $10,000.00, or both.

(5) A person who violates subsection (2) is guilty of a misdemeanor , punishable by imprisonment 1 or more of the following:

(a) Imprisonment for not more than 90 days. , a

(b) A fine of not more than $500.00. , service to the community

(6) As used in this section:

(a) "Employed" includes engaged as an agent or independent contractor.

(b) "Person" means an individual, firm, partnership, limited partnership, limited liability company, corporation, association, or other legal entity.

(d) "Tobacco paraphernalia" means that term as defined in section 4 of the youth tobacco act, 1915 PA 31, MCL 722.644.

(e) "Tobacco product" means that term as defined in section 4 of the youth tobacco act, 1915 PA 31, MCL 722.644.

Sec. 470. (1) Except as provided in subsection (2), a person, in a place of public accommodation, to which access by minors is not prohibited by law, shall not sell or distribute cigarettes, cigars, or other tobacco products or tobacco paraphernalia through the use of a vending machine, or install or maintain a vending machine with the intent of selling or distributing cigarettes, cigars, or other tobacco products or tobacco paraphernalia. For purposes of this section, "place of public accommodation" has the same meaning as that term has in section 301(a) of the persons with disabilities civil rights act, 1976 PA 220, MCL 37.1301.

(2) This Until June 30, 2019, this section does not apply to a cigarette tobacco products or tobacco paraphernalia vending machine that meets either any of the following criteria:

(a) The tobacco products or tobacco paraphernalia vending machine is a cigarette vending machine that is located in an establishment that has a class C license as defined in section 2t 107 of the Michigan liquor control act, 1933 (Ex Sess) code of 1998, 1998 PA 8, 58, MCL 436.2t, 436.1107, and 1 of the following applies:

(i) If the establishment has a bar that is located in a room that is separated from the remainder of the establishment by a wall and a doorway, the cigarette vending machine is located entirely in that room.

(ii) If the establishment has a bar that is not located in a room that is separated from the remainder of the establishment by a wall and a doorway, the cigarette vending machine is located not more than 20 feet from the bar, is located clearly within the bar area and not in a hallway, coat room, rest room, or similar unrelated area, and is under the direct visual supervision of an adult.

(b) The tobacco products or tobacco paraphernalia vending machine is a cigarette vending machine that is located entirely in an area, office, plant, factory, or private membership club that is not open to the public, and is located not less than 20 feet from all entrances and exits that are accessible to the general public.

(c) The tobacco products or tobacco paraphernalia vending machine is located in a place of public accommodation to which access by individuals under 21 years of age is prohibited by law.

(3) A person who violates this section is guilty of a misdemeanor , punishable by imprisonment 1 or more of the following:

(a) Imprisonment for not more than 6 months. , service to the community

(b) Community service for a period of not more than 45 days. , or a

(4) Each day that a person has a vending machine that dispenses cigarettes, cigars, or other tobacco products or tobacco paraphernalia in violation of this section constitutes a separate offense.

(5) (4) The provisions of this section shall be are enforceable by a local health department to the same extent and by the same means as regulations adopted by that local health department.

(6) As used in this section:

(a) "Person" means that term as defined in section 4 of the youth tobacco act, 1915 PA 31, MCL 722.644.

(b) "Place of public accommodation" means that term as defined in section 301 of the persons with disabilities civil rights act, 1976 PA 220, MCL 37.1301.

(d) "Tobacco product" means that term as defined in section 4 of the youth tobacco act, 1915 PA 31, MCL 722.644.

Enacting section 1. This amendatory act takes effect 180 days after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect unless Senate Bill No.____ or House Bill No.____ (request no. 00156'19) of the 100th Legislature is enacted into law.