MISSISSIPPI LEGISLATURE
2020 Regular Session
To: Finance
By: Senator(s) DeLano
AN ACT TO AMEND SECTION 67-1-81, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES FOR THE SALE OR FURNISHING OF ALCOHOLIC BEVERAGES TO A MINOR, AND TO AUTHORIZE THE COMMISSIONER OF REVENUE TO IMPOSE CERTAIN ADMINISTRATIVE PENALTIES ON ALCOHOLIC BEVERAGE PERMITTEES FOR VIOLATIONS OF THIS SECTION; TO CREATE NEW SECTION 97-32-52, MISSISSIPPI CODE OF 1972, TO DECLARE AS UNLAWFUL, AND TO PROVIDE THE PENALTIES FOR, THE SALE OR FURNISHING OF AN ALTERNATIVE NICOTINE PRODUCT TO A MINOR WITHIN 1,500 FEET OF A BUILDING ON EDUCATIONAL PROPERTY, OR WITHIN 1,000 FEET OF A CHURCH, PUBLIC PARK, BALLPARK, PUBLIC GYMNASIUM, YOUTH CENTER OR MOVIE THEATER ; TO AMEND SECTION 97-32-51, MISSISSIPPI CODE OF 1972, TO REVISE THE DEFINITION OF "ALTERNATIVE NICOTINE PRODUCT," AND TO REVISE THE PENALTIES AND AGE LIMIT FOR OFFENSES CONCERNING THE DISTRIBUTION OF ALTERNATIVE NICOTINE PRODUCTS TO MINORS; TO AMEND SECTION 97-32-9, MISSISSIPPI CODE OF 1972, TO REVISE THE PENALTIES AND AGE LIMIT FOR THE PURCHASE AND POSSESSION OF TOBACCO BY MINORS, AND TO EXPAND THE PROHIBITIONS TO THE PURCHASE AND POSSESSION OF ALTERNATIVE NICOTINE PRODUCTS; TO AMEND SECTIONS 97-32-7, 97-32-13 AND 97-32-21, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE ABOVE; TO AMEND SECTION 97-32-2, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR STATEWIDE UNIFORMITY WITH RESPECT TO CERTAIN LAWS CONCERNING THE SALE, PROMOTION AND DISTRIBUTION OF ALTERNATIVE NICOTINE PRODUCTS, TOBACCO AND TOBACCO PRODUCTS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 67-1-81, Mississippi Code of 1972, is amended as follows:
67-1-81.
(1) (a) Any permittee or other person who shall sell, furnish, dispose
of, give, or cause to be sold, furnished, disposed of, or given, any alcoholic
beverage to any person under the age of twenty-one (21) years shall be guilty
of a misdemeanor and shall be punished by a fine of not less than Five Hundred
Dollars ($500.00) nor more than One Thousand Dollars ($1,000.00) for a first
offense. For a second or subsequent offense, such permittee or other person
shall be punished by a fine of not less than One Thousand Dollars ($1,000.00)
nor more than Two Thousand Dollars ($2,000.00), or by imprisonment for not more
than one (1) year, or by both such fine and imprisonment in the discretion of
the court. * * *
(b) (i) If a permittee, or any employee of a permittee, violates paragraph (a) of this subsection (1), then, in addition to any other penalty provided for by law, the commissioner may impose the following penalties against the permittee on whose premises the alcoholic beverages were sold, given or furnished:
1. For the first offense on the licensed premises, suspension of the permit for not more than one (1) week.
2. For a second offense occurring on the licensed premises within a twelve-month period, suspension of the permit for not more than two (2) weeks.
3. For a third offense occurring on the licensed premises within a twelve-month period, suspension of the permit for not more than three (3) weeks or revocation of the permit.
4. For a fourth or subsequent offense occurring on the licensed premises within a twelve-month period, revocation of the permit.
A violation of paragraph (a) of this subsection (1) shall be sufficient to impose the administrative penalties authorized under this paragraph (b), and any expunction of conviction shall have no effect on any administrative penalty imposed against a permittee under this paragraph (b).
(2) Any person under the age of twenty-one (21) years who purchases, receives, or has in his or her possession in any public place, any alcoholic beverages, shall be guilty of a misdemeanor and shall be punished by a fine of not less than Two Hundred Dollars ($200.00) nor more than Five Hundred Dollars ($500.00). Provided, that clearing or busing tables that have glasses or other containers that contain or did contain alcoholic beverages, or stocking, bagging or otherwise handling purchases of alcoholic beverages shall not be deemed possession of alcoholic beverages for the purposes of this section. Provided further, that a person who is at least eighteen (18) years of age but under the age of twenty-one (21) years who waits on tables by taking orders for or delivering orders of alcoholic beverages shall not be deemed to unlawfully possess or furnish alcoholic beverages if in the scope of his employment by the holder of an on-premises retailer's permit. This exception shall not authorize a person under the age of twenty-one (21) to tend bar or act in the capacity of bartender. Any person under the age of twenty-one (21) who knowingly makes a false statement to the effect that he or she is twenty-one (21) years old or older or presents any document that indicates he or she is twenty-one (21) years of age or older for the purpose of purchasing alcoholic beverages from any person engaged in the sale of alcoholic beverages shall be guilty of a misdemeanor and 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.
(3) The term "community service" as used in this section shall mean work, projects or services for the benefit of the community assigned, supervised and recorded by appropriate public officials.
(4) If a person under the age of twenty-one (21) years is convicted or enters a plea of guilty of purchasing, receiving or having in his or her possession in any public place any alcoholic beverages in violation of subsection (2) of this section, the trial judge, in lieu of the penalties otherwise provided under subsection (2) of this section, shall 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 or penalties that may be imposed under subsection (2) of 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, penalties or both, that he would have otherwise imposed, and such action shall constitute a conviction.
SECTION 2. The following shall be codified as Section 97-32-52, Mississippi Code of 1972:
97-32-52. (1) It shall be unlawful for any person who is in, on or within one thousand five hundred (1,500) feet of a building or outbuilding which is all or part of educational property as defined by Section 97-37-17 to sell or furnish an alternative nicotine product to any individual under twenty-one (21) years of age. Each violation of the provisions of this subsection (1) shall be treated as a separate offense.
(2) Upon conviction for violation of the provisions in subsection (1) of this section, the offender shall be punished as follows:
(a) For a first offense, a fine of Five Hundred Dollars ($500.00), and no more than twenty (20) hours of community service;
(b) For a second offense, a fine of One Thousand Dollars ($1,000.00), and no more than thirty (30) hours of community service; and
(c) For a third offense or subsequent offense, a fine of One Thousand Five Hundred Dollars ($1,500.00), and no more than fifty (50) hours of community service.
(3) It shall be unlawful for any person who is in, on or within one thousand (1,000) feet of any church, public park, ballpark, public gymnasium, youth center or movie theater to sell or furnish an alternative nicotine product to any individual under twenty-one (21) years of age. Each violation of the provisions of this subsection (3) shall be treated as a separate offense.
(4) Upon conviction for violation of the provisions in subsection (3) of this section, the offender shall be punished with treble the fines and community service described in subsection (2) of this section.
(5) If the alternative nicotine product sold or furnished in violation of this section contains any controlled substance that is otherwise prohibited by law, or any other substance that causes the recipient to require emergency medical care as a result of using the product, the penalty, upon conviction, shall be treble the fines and community service described in subsection (2) of this section, plus any other penalty provided by law for the sale or furnishing of the controlled substance or other substance.
SECTION 3. Section 97-32-51, Mississippi Code of 1972, is amended as follows:
97-32-51. (1) For the
purposes of this * * * chapter:
(a) (i) "Alternative nicotine product" means:
1. An electronic
cigarette; * * *
2. Any other
product that consists of or contains nicotine that can be ingested into the
body by chewing, smoking, absorbing, dissolving, inhaling or by any other means * * *;
3. Any electronic device that can be used to deliver nicotine to an individual inhaling from the device, including, but not limited to, any cartridge component, liquid, capsule or powder used to refill or resupply such an electronic device; or
4. An electronic cigar or cigarillo.
(ii) Alternative nicotine product does not include:
1. A cigarette or other tobacco product as defined in Section 97-32-3;
2. A product that is a drug under 21 USCS 321(g)(1);
3. A product that is a device under 21 USCS 321(h); or
4. A combination product described in 21 USCS 353(g).
(b) (i) "Electronic cigarette" means an electronic product or device that produces a vapor that delivers nicotine or other substances to the person inhaling from the device to simulate smoking, and is likely to be offered to, or purchased by, consumers as an electronic cigarette, electronic cigar, electronic cigarillo or electronic pipe.
(ii) Electronic cigarette does not include:
1. A cigarette or other tobacco products as defined in Section 97-32-3;
2. A product that is a drug under 21 USCS 321(g)(1);
3. A product that is a device under 21 USCS 321(h); or
4. A combination product described in 21 USCS 353(g).
(2) No person, either
directly or indirectly by an agent or employee, or by a vending machine owned
by the person or located in the person's establishment, shall sell, offer for
sale, give or furnish any alternative nicotine product, or any cartridge * * *, component * * *, liquid,
capsule or powder thereof, to an individual under * * * twenty-one (21) years of
age. The penalties described in this subsection shall be treble the fines
described in this section, plus any other penalty provided by law, for the
sale, use, possession or furnishing of a controlled substance or other
substance to a person, if the alternative nicotine product contains any
controlled substance that is otherwise prohibited by law, or any other
substance that causes the recipient of such to require emergency medical care
as a result of using the product. Each violation of the provisions of this
section shall be treated as a separate offense. A violation of this
subsection is punishable as follows:
(a) By a fine of * * * Two Hundred Fifty
Dollars ($250.00) for a first offense;
(b) By a fine of * * * Five
Hundred Dollars ($500.00) for a second offense; and
(c) By a fine of * * * One Thousand
Dollars ($1,000.00) for a third or subsequent offense.
(3) Before selling,
offering for sale, giving or furnishing an alternative nicotine product, or any
cartridge * * *,
component * * * liquid, capsule or powder thereof,
to an individual, a person shall verify that the individual is at least * * * twenty-one (21) years of
age by:
(a) Examining from any
individual that appears to be under twenty-seven (27) years of age a government-issued
photographic identification that establishes the individual is at least * * * twenty-one (21) years of
age; or
(b) For sales made
through the internet or other remote sales methods, performing an age
verification through an independent, third-party age verification service that
compares information available from public records to the personal information
entered by the individual during the ordering process that establishes the
individual is * * * twenty-one (21) years of age or older.
SECTION 4. Section 97-32-9, Mississippi Code of 1972, is amended as follows:
97-32-9. No person under * * * twenty-one (21) years of
age shall purchase any tobacco or alternative nicotine product. No
student of any high school, junior high school or elementary school shall
possess tobacco or alternative nicotine on any educational property as
defined in Section 97-37-17.
(a) If a person under * * * twenty-one (21) years of
age is found by a court to be in violation of any other statute and is also found
to be in possession of a tobacco or alternative nicotine product, the
court * * * shall punish the minor as
follows:
(i) For a first offense, pay a fine of One Hundred Dollars ($100.00), and perform no more than fifteen (15) hours of community service;
(ii) For a second offense, a fine of Three Hundred Dollars ($300.00), and no more than twenty-five (25) hours of community service;
(iii) For a third offense or subsequent offense, a fine of Five Hundred Dollars ($500.00), and no more than forty (40) hours of community service.
(b) A violation under this section is not to be recorded on the criminal history of the minor and, upon proof of satisfaction of the court's order, the record shall be expunged from any records other than youth court records.
SECTION 5. Section 97-32-7, Mississippi Code of 1972, is amended as follows:
97-32-7. (1) Every person engaged in the business of selling tobacco products or alternative nicotine products at retail shall notify each individual employed by that person as a retail sales clerk that state law:
(a) Prohibits the sale
or distribution of tobacco products or alternative nicotine products,
including samples, to any person under * * * twenty-one (21) years of
age and the purchase or receipt of tobacco products or alternative nicotine
products by any person under * * * twenty-one (21) years of
age * * *;
and
(b) Requires that
proof of age be demanded from a prospective purchaser or recipient if the
prospective purchaser or recipient is under the age of * * * twenty-one (21) years.
Every person employed by a person engaged in the business of selling tobacco
products or alternative nicotine products at retail shall sign an
agreement with his employer in substantially the following or similar form:
"I understand that
state and federal law prohibit the sale or distribution of tobacco products and
alternative nicotine products to persons under the age of * * * twenty-one (21) years and
out-of-package sales, and requires that proof of age be demanded from a
prospective purchaser or recipient under * * * twenty-one (21) years of
age if the individual is not known to the seller, barterer, deliverer or giver
of the tobacco product or alternative nicotine product to be over the
age of * * *
twenty-one (21) years. I promise, as a condition of my employment, to
observe this law."
(2) Any person violating the provisions of this section shall be penalized not less than Fifty Dollars ($50.00) nor more than One Hundred Dollars ($100.00).
(3) No retailer who instructs his employee as provided in this section shall be liable for any violations committed by such employees.
SECTION 6. Section 97-32-13, Mississippi Code of 1972, is amended as follows:
97-32-13. Any person under
the age of * * * twenty-one (21) years who falsely states he is * * * twenty-one (21) years of
age or older, or presents any document that indicates he is * * * twenty-one (21) years of
age or older, for the purpose of purchasing or possessing any alternative
nicotine product, tobacco or tobacco product shall be penalized not less
than Twenty-five Dollars ($25.00) nor more than Two Hundred Dollars ($200.00)
or required to complete at least thirty (30) days' community service, or
both.
SECTION 7. Section 97-32-21, Mississippi Code of 1972, is amended as follows:
97-32-21. The Office of the
Attorney General or local law enforcement agencies shall at least annually
conduct random, unannounced inspections at locations where alternative
nicotine products, tobacco or tobacco products are sold or distributed to
ensure compliance with the Mississippi Juvenile Tobacco * * *
Access Prevention Act of 1997.
Persons under the age of * * * eighteen (18) twenty-one (21) years may be enlisted by
the Office of the Attorney General or local law enforcement to test compliance
with the Mississippi Juvenile Tobacco Access Prevention Act of 1997, provided
that the parent or legal guardian of the person under * * * twenty-one (21) years of
age so utilized has given prior written consent for the minor's participation
in unannounced inspections. The Office of the Attorney General must prepare a
report of the findings, and report these findings to the Department of Health
and Department of Mental Health. The Department of Mental Health shall prepare
the annual report required by Section 1926, subpart 1 of Part B, Title XIX of
the Federal Public Health Service Act (42 USCS 300X-26). The report shall be
approved by the Governor and then promptly transmitted to the Secretary of the
United States Department of Health and Human Services.
SECTION 8. Section 97-32-2, Mississippi Code of 1972, is amended as follows:
97-32-2. It is the intent
of the Legislature that enforcement of this chapter be implemented in an
equitable manner throughout the state. The provisions of Sections 97-32-5, 97-32-7,
97-32-9, 97-32-11, 97-32-13, 97-32-15, 97-32-17, 97-32-19 * * *, 97-32-21 and 97-32-51 shall
supersede any existing or subsequently enacted local law, ordinance or
regulation which relates to the sale, promotion and distribution of alternative
nicotine products, tobacco and tobacco products.
SECTION 9. This act shall take effect and be in force from and after its passage.