604.05 SELLING OR FURNISHING ALCOHOLIC LIQUOR TO MINOR; FAILURE TO MAKE DILIGENT INQUIRY; VIOLATION AS MISDEMEANOR; PENALTY; SIGNS; CONSUMPTION OF ALCOHOLIC LIQUOR AS CAUSE OF DEATH OR INJURY; FELONY; ENFORCEMENT AGAINST LICENSEE; CONSENT OF PARENT OR GUARDIAN IN UNDERCOVER OPERATION; DEFENSE IN ACTION FOR VIOLATION; REPORT; DEFINITIONS.
(a) Alcoholic liquor shall not be sold or furnished to a minor. Except as otherwise provided in subsection (b) hereof and subject to subsections (d), (e), and (f) hereof, a person who knowingly sells or furnishes alcoholic liquor to a minor, or who fails to make diligent inquiry as to whether the person is a minor, is guilty of a misdemeanor. A retail licensee or a retail licensee's clerk, agent, or employee who violates this subsection shall be punished in the manner provided for licensees in section 909 of the code except that if the violation is the result of an undercover operation in which the minor received alcoholic liquor under the direction of the State police, the commission, or a local police agency as part of an enforcement action, the retail licensee's clerk, agent or employee is responsible for a State civil infraction and may be ordered to pay a civil fine of not more than one hundred dollars ($100.00). Except as otherwise provided in subsection (b) hereof, a person who is not a retail licensee or a retail licensee's clerk, agent, or employee and who violates this subsection is guilty of a misdemeanor punishable by a fine of not more that one thousand dollars ($1,000) and imprisonment for not more than sixty days for a first offense, a fine of not more than two thousand five hundred dollars ($2,500) and imprisonment for not more than ninety days for a second or subsequent offense, and may be ordered to perform community service. For a second or subsequent offense, the Secretary of State shall suspend the operator's or chauffeur's license of an individual who is not a retail licensee or retail licensee's clerk, agent, or employee and who is convicted of violating this subsection as provided in section 319 of the Michigan Vehicle Code, 1949 PA 300, MCL 257.319. A suitable sign describing the content of this section and the penalties for its violation shall be posted in a conspicuous place in each room where alcoholic liquor is sold. The signs shall be approved and furnished by the commission.
(b) A person who is not a retail licensee or the retail licensee's clerk, agent, or employee and who violates subsection (a) hereof is guilty of a felony, punishable by imprisonment for not more than ten years or a fine of not more than five thousand dollars ($5,000), or both, if the subsequent consumption of the alcoholic liquor by the minor is a direct and substantial cause of the person's death or an accidental injury that causes that person's death.
(c) If a violation occurs in an establishment that is licensed by the commission for the consumption of alcoholic liquor on the licensed premises, a person who is a licensee or the clerk, agent, or employee of a licensee shall not be charged with a violation of subsection (a) hereof or section 801(2) unless the licensee or the clerk, agent, or employee of the licensee knew or should have reasonably known with the exercise of due diligence that person less than twenty-one years of age possessed or consumed alcoholic liquor on the licensed premises and the licensee or clerk, agent, or employee of the licensee failed to take immediate corrective action.
(d) If the enforcing agency involved in the violation is the State police or a local police agency, a licensee shall not be charged with a violation of subsection (a) hereof or section 801 (2) of the code unless all of the following occur, if applicable:
(1) Enforcement action is taken against the minor who purchased or attempted to purchase, consume or attempted to consume, or possessed or attempted to possess alcoholic liquor.
(2) Enforcement action is taken under the section against the person twenty-one years of age or older who is not the retail licensee or the retail licensee's clerk, agent, or employee who sold or furnished the alcoholic liquor to the minor.
(3) Enforcement action under this section is taken against the clerk, agent, or employee who directly sold or furnished alcoholic liquor to the minor.
(e) If the enforcing agency is the commission and an appearance ticket or civil infraction citation has not been issued, then the commission shall recommend to a local law enforcement agency that enforcement action be taken against a violator of this section or section 703 who is not a licensee. However, subsection (d) hereof does not apply if the minor against whom enforcement action is taken under section 703, the clerk, agent, or employee of the licensee who directly sold or furnished alcoholic liquor to the minor, or the person twenty-one years of age or older who sold or furnished alcoholic liquor to the minor is not alive or is not present in this State at the time the licensee is charged. Subsection (d)(1) hereof does not apply under either of the following circumstances:
(1) The violation of subsection (a) hereof is the result of an undercover operation in which the minor purchased or received alcoholic liquor under the direction of the person's employer and with the prior approval of the local prosecutor's office as part of an employee-sponsored internal enforcement action.
(2) The violation of subsection (a) hereof is the result of an undercover operation in which the minor purchased or received alcoholic liquor under the direction of the State police, the commission, or a local police agency as part of an enforcement action.
(f) Any initial or contemporaneous purchase or receipt of alcoholic liquor by the minor under subsection (e)(1) or (2) hereof must have been under the direction of the State police, the commission, or the local police agency and must have been part of the undercover operation.
(g) If a minor participates in an undercover operation in which the minor is to purchase or receive alcoholic liquor under the supervision of a law enforcement agency, his or her parents or legal guardian shall consent to the participation if that person is less than eighteen years of age.
(h) In an action for the violation of this section, proof that the defendant or the defendant's agent or employee demanded and was shown, before furnishing alcoholic liquor to a minor, a motor vehicle operator's or chauffeur's license, a military identification card, or other bona fide documentary evidence of the age and identity of that person, shall be a defense to an action brought under this section.
(i) The commission shall provide, on an annual basis, a written report to the Department of State Police as to the number of actions heard by the commission involving violations of this section and section 801(2). The report shall include the disposition of each action and contain figures representing the following categories:
(1) Decoy operations.
(2) Off-premises violations.
(3) On-premises violations.
(4) Repeat offenses within the three years preceding the date of that report.
(j) As used in this section:
(1) "Corrective action" means action taken by a licensee or a clerk, agent, or employee of a licensee designed to prevent a minor from further possessing or consuming alcoholic liquor on the licensed premises. Corrective action includes, but is not limited to, contacting a law enforcement agency and ejecting the minor and any other person suspected of aiding and abetting the minor.
(2) "Diligent inquiry" means a diligent good faith effort to determine the age of a person, which includes at least an examination of an official Michigan operator's or chauffeur's license, an official Michigan personal identification card, a military identification card, or any other bona fide picture identification which establishes the identity and age of the person.
(Ord. 854. Passed 4-9-12.)