Senate Bill 3001

AN ACT TO AMEND SECTION 97-32-5, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR PROVIDING TOBACCO PRODUCTS TO A CHILD UNDER THE AGE OF 18; TO AMEND SECTION 97-32-9, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR POSSESSION OF TOBACCO PRODUCTS BY A CHILD UNDER THE AGE OF 18; TO AMEND SECTION 97-32-13, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR MISREPRESENTATION OF AGE BY A CHILD UNDER THE AGE OF 18 IN ORDER TO POSSESS OR OBTAIN TOBACCO PRODUCTS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 97-32-5, Mississippi Code of 1972, is amended as follows:

97-32-5. (1) (a) It shall be unlawful for any person, or retailer, to sell, barter, deliver or give tobacco products to any individual under eighteen (18) years of age unless the individual under eighteen (18) years of age holds a retailer's license to sell tobacco under Section 27-69-1 et seq., Mississippi Code of 1972.

(b) (i) It shall be an absolute affirmative defense that the person selling, bartering, delivering or giving tobacco products over the counter in a retail establishment to an individual under eighteen (18) years of age in violation of this article had requested and examined a government-issued photographic identification from such person establishing his age as at least eighteen (18) years prior to selling such person a tobacco product. The failure of a seller, barterer, deliverer or giver of tobacco products over the counter in a retail establishment to request and examine photographic identification from a person under eighteen (18) years of age prior to the sale of a tobacco product to such person if the individual is not known to the seller, barterer, deliverer or giver of the tobacco product to be over the age of eighteen (18) years, shall be construed against the seller, barterer, deliverer or giver and form a conclusive basis for the seller's violation of this section.

(ii) It shall be an absolute affirmative defense that the person or entity giving tobacco products through the mail to an individual under eighteen (18) years of age in violation of this article had requested and received documentary or written evidence from such person purportedly establishing his age to be at least eighteen (18) years of age.

(2) Except as provided in subsection (5), any person who violates this section shall be liable as follows: For a first conviction, a fine of Fifty Dollars ($50.00); for a second conviction, a fine of Seventy-five Dollars ($75.00); and for all subsequent convictions, a fine of One Hundred Fifty Dollars ($150.00) shall be imposed.

Any person found in violation of this section shall be issued a citation and the holder of the retailer permit involved, if any, shall be sent notification of this citation by registered mail by the law enforcement agency issuing the citation. Notification shall include the opportunity for hearing before the appropriate court. For a first conviction, the retailer shall be sent a warning letter informing him of the retailer's responsibility in the selling of tobacco products. For a second conviction, the retailer, or retailer's designee, shall be required to enroll in and complete a "Retailer Tobacco Education Program."

For a third or subsequent violation of this section by any retailer, within one (1) year of the two (2) prior violations, any retailer's permit issued pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, may be revoked or suspended for a period of at least one (1) year after notice and opportunity for hearing. If said permit is revoked by the Tax Commission, the retailer may not reapply for a permit to sell tobacco for a period of six (6) months. For the purposes of this section, "subsequent violations" are those committed at the same place of business.

(3) It is the responsibility of all law enforcement officers and law enforcement agencies of this state to ensure that the provisions of this article are enforced.

(4) (a) It shall not be considered a violation of this section on the part of any law enforcement officer or person under eighteen (18) years of age for any law enforcement officer of this state to use persons under eighteen (18) years of age to purchase or attempt to purchase tobacco products for the purpose of monitoring compliance with this section, as long as those persons are supervised by duly authorized law enforcement agency officials.

(b) (i) Any law enforcement agency conducting enforcement efforts undertaken pursuant to this article shall prepare a report as prescribed by the Attorney General which includes the number of unannounced inspections conducted by the agency, a summary of enforcement actions taken pursuant to this article, the name and permit number of the retailer pursuant to Section 27-69-1 et seq., Mississippi Code of 1972, and final judicial disposition on all enforcement actions. Reports shall be forwarded to the Office of the Attorney General within twenty (20) working days of the final judicial disposition.

(ii) On notification from local law enforcement that a retailer has violated this article so as to warrant a revocation of the retailer's permit, the Attorney General shall notify in writing the State Tax Commission within twenty (20) working days.

(iii) In accordance with the procedures of Section 27-69-9, Mississippi Code of 1972, the State Tax Commission shall initiate revocation procedures of the retailer's permit. The Office of the Attorney General shall provide legal assistance in revocation procedures when requested by the Tax Commission.

(5) (a) Any person eighteen (18) years of age or older who knowingly purchases tobacco products for, or gives or makes available tobacco products to, a person under the age of eighteen (18) years, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than Three Hundred Dollars ($300.00) nor more than Five Hundred Dollars ($500.00) and a sentence to not more than thirty (30) days community service.

(b) The term "community service" as used in this subsection shall mean work, projects or services for the benefit of the community assigned, supervised and recorded by appropriate public officials.

SECTION 2. Section 97-32-9, Mississippi Code of 1972, is amended as follows:

97-32-9. (1) No person under eighteen (18) years of age shall purchase any tobacco product. No student of any high school, junior high school or elementary school shall possess tobacco on any educational property as defined in Section 97-37-17, Mississippi Code of 1972.

(2) (a) Any person under the age of eighteen (18) years who purchases or possesses any tobacco product as prohibited by this section shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00) and a sentence to not more than thirty (30) days community service; the minor may also be sentenced to a tobacco cessation class.

(b) If a person is convicted or enters a plea of guilty under this section, the trial judge, in lieu of the fine otherwise provided under this section, may suspend the minor's driver's license by taking and keeping it in the custody of the court for a period of time not to exceed ninety (90) days. The judge so ordering the suspension shall enter upon his docket "DEFENDANT'S DRIVER'S LICENSE SUSPENDED FOR ____( ) DAYS IN LIEU OF CONVICTION" and such action by the trial judge shall not constitute a conviction. During the period that the minor's driver's license is suspended, the trial judge shall suspend the imposition of any fines that may be imposed under this section and may place the minor on probation subject to such conditions as the judge deems appropriate. If the minor violates any of the conditions of probation, then the trial judge shall return the driver's license to the minor and impose the fines and penalties that he would have otherwise imposed, and such action shall constitute a conviction.

SECTION 3. Section 97-32-13, Mississippi Code of 1972, is amended as follows:

97-32-13. (1) Any person under the age of eighteen (18) years who falsely states he is eighteen (18) years of age or older, or presents any document that indicates he is eighteen (18) years of age or older, for the purpose of purchasing or possessing any tobacco or tobacco product shall be penalized not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00) and required to complete not more than thirty (30) days community service, and may also be sentenced to attend a tobacco cessation class.

(2) If a person is convicted or enters a plea of guilty under this section, the trial judge, in lieu of the penalties otherwise provided under this section, may suspend the minor's driver's license by taking and keeping it in the custody of the court for a period of time not to exceed ninety (90) days. The judge so ordering the suspension shall enter upon his docket "DEFENDANT'S DRIVER'S LICENSE SUSPENDED FOR ____( ) DAYS IN LIEU OF CONVICTION" and such action by the trial judge shall not constitute a conviction. During the period that the minor's driver's license is suspended, the trial judge shall suspend the imposition of any fines that may be imposed under this section and may place the minor on probation subject to such conditions as the judge deems appropriate. If the minor violates any of the conditions of probation, then the trial judge shall return the driver's license to the minor and impose the fines and penalties that he would have otherwise imposed, and such action shall constitute a conviction.

SECTION 4. This act shall take effect and be in force from and after July 1, 2007.