House Bill No. 38

Introduced By rose



A Bill for an Act entitled: "An Act making the PROVIDING A CRIMINAL penalty for providing THE SALE OR DISTRIBUTION BY A PERSON WHO IS NOT A LICENSEE OR AN EMPLOYEE OF A LICENSEE OF a tobacco product to an underage A person UNDER 18 YEARS OF AGE the same as the penalty for providing an alcoholic beverage to an underage person; and amending sections 16-11-305 and 16-11-308, MCA."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 16-11-305, MCA, is amended to read:

"16-11-305.   Sale or distribution of tobacco products to persons under 18 years of age prohibited -- penalty. (1) A person may not purposely sell or distribute a tobacco product to an individual under 18 years of age, whether over the counter, by vending machine, or otherwise. Violation of this

(2) PURPOSEFUL VIOLATION OF subsection (1) BY A PERSON WHO IS NOT A LICENSEE OR AN EMPLOYEE OF A LICENSEE is a misdemeanor. Upon conviction, the person shall be fined an amount not to exceed $500 or incarcerated for a term not to exceed 6 months, or both. Upon a second or subsequent conviction, the person shall be fined an amount not to exceed $1,000 or incarcerated for a term not to exceed 6 months, or both.

(2)(3)  If there is a reasonable doubt as to the individual's age, the seller shall require presentation of a driver's license or other generally accepted identification that includes a picture of the individual."



Section 2.  Section 16-11-308, MCA, is amended to read:

"16-11-308.   Tobacco education fee. (1) Failure to obtain a license as required by 16-11-303 or to post signs as provided in 16-11-304 is punishable by a civil penalty of $100. The department may collect the penalty in the manner provided for the collection of other debts.

(2)  A person LICENSEE who violates 16-11-305(1) or 16-11-305(1) OR 16-11-307 at any one location within a 3-year period shall be punished as follows:

(a)  A first through third offense is punishable by a verbal notification of violation.

(b)  A fourth offense is punishable by a written notice of violation to be sent by the department of public health and human services to the owner of the establishment.

(c)  A fifth offense is punishable by assessment against the owner of the establishment of a tobacco education fee of $500. The employee or other person who sold the tobacco product, the establishment manager, and the establishment owner, if the owner is a sole proprietor or partner, shall read and view the tobacco education material.

(d)  A sixth offense is punishable by suspension of the licenses required by 16-11-120 and 16-11-303 for 3 months.

(e)  A seventh and subsequent offense is punishable by suspension of the licenses required by 16-11-120 and 16-11-303 for 1 year.

(3)  After 2 years from the first violation, if a person LICENSEE has not received notice of any further violations, a second violation is considered a first violation for the purposes of subsection (2).

(4)  A license may not be reissued after suspension under subsection (2)(d) or (2)(e) unless tobacco education fees are paid in full.

(5)  Tobacco education fees must be assessed and collected by the department of public health and human services. Notice of an assessment pursuant to subsection (2) and this subsection must be made by the department of public health and human services within 30 days of the alleged violation by certified letter addressed to the establishment owner or manager. The notice of assessment against the owner of the establishment must provide an opportunity for a hearing pursuant to the provisions of the Montana Administrative Procedure Act. Within 30 days from the date the notice of assessment was mailed, the owner or manager shall notify the department of public health and human services that the owner or manager objects to the assessment and request a hearing pursuant to this subsection.

(6)  In addition to the penalty provided for in subsection (2), a first and subsequent violation of 16-11-305(1) or 16-11-305(1) OR 16-11-307 IN AN ESTABLISHMENT is punishable by an assessment of a tobacco education fee of $25 against the employee who sold the tobacco product if the employee is not the owner of the establishment. The tobacco education fee must be assessed and collected by the department of public health and human services. Within 30 days of the alleged violation, notice of assessment pursuant to this subsection must be made by the department of public health and human services by certified letter addressed to the employee. The notice of assessment must provide an opportunity for a hearing pursuant to the provisions of the Montana Administrative Procedure Act. Within 30 days from the date on which the notice of assessment was mailed, the employee shall notify the department of public health and human services that the employee objects to the assessment and requests a hearing pursuant to this subsection.

(7)  The tobacco education material referred to in this section must be provided by the department of public health and human services in the form of written and video self-teaching materials. The education materials may be used only for the purposes provided in this section. Upon completion of the self-teaching materials, the establishment owner or manager shall execute a written statement on a form provided by the department of public health and human services verifying that the employee, owner, or manager, as appropriate, has read and viewed the self-teaching material and shall return the statement and the self-teaching video to the department of public health and human services.

(8)  Upon the sixth and subsequent violation of this section 16-11-305(1) OR 16-11-307 IN AN ESTABLISHMENT, the department of public health and human services shall notify the department of revenue in writing to initiate suspension of the licenses required by 16-11-120 and 16-11-303 and shall notify the licensee in writing of the alleged violation and of the referral of the licensee's record of violations to the department of revenue for suspension of the licenses pursuant to 16-11-144 and this section. The department of revenue shall review the record of violations and may initiate license suspension proceedings in accordance with 16-11-144. If, upon a review of the record of violations, the department of revenue declines to initiate suspension proceedings, the violation may not be charged against the licensee for the purposes of this section.

(9)  Fees assessed pursuant to this section must be deposited in an account in the state special revenue fund. One-half of the money in the account is statutorily appropriated, as provided in 17-7-502, to the department of public health and human services to defray the costs of the tobacco education program. One-half of the money in the account is statutorily appropriated, as provided in 17-7-502, to the department of revenue to defray the department's costs of implementing its duties pursuant to 16-11-144 and this section."

-END-