H.B. 536
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: J.V. Hulten 6
6 02-21-23 11:30 AM 6
H.B. 536
1 STUDENT DRUG POSSESSI ON AMENDMENTS
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Douglas R. Welton
5 Senate Sponsor: ____________
6
7LONG TITLE
8General Description:
9 This bill addresses public education discipline policies related to the possession or use
10of tobacco, electronic cigarette, or nicotine products.
11Highlighted Provisions:
12 This bill:
13 <requires a local education agency (LEA) to amend the LEA's conduct and discipline
14policies to address the possession or use of certain tobacco or nicotine products;
15 <allows a school to issue a citation to a student who possesses a tobacco product, an
16electronic cigarette product, or a nicotine product on school property; and
17 <makes technical changes.
18Money Appropriated in this Bill:
19 None
20Other Special Clauses:
21 None
22Utah Code Sections Affected:
23AMENDS:
24 53G-8-203, as last amended by Laws of Utah 2020, Chapter 161
25 53G-8-211, as last amended by Laws of Utah 2021, Chapters 262, 359 and further
26amended by Revisor Instructions, Laws of Utah 2021, Chapter 359
27 76-10-105, as last amended by Laws of Utah 2021, Chapter 262
*HB0536* H.B. 536 02-21-23 11:30 AM
- 2 -
28
29Be it enacted by the Legislature of the state of Utah:
30 Section 1. Section 53G-8-203 is amended to read:
31 53G-8-203. Conduct and discipline policies and procedures.
32 (1) The conduct and discipline policies required under Section 53G-8-202 shall
33include:
34 (a) provisions governing student conduct, safety, and welfare;
35 (b) standards and procedures for dealing with students who cause disruption in the
36classroom, on school grounds, on school vehicles, or in connection with school-related
37activities or events;
38 (c) procedures for the development of remedial discipline plans for students who cause
39a disruption at any of the places referred to in Subsection (1)(b);
40 (d) procedures for the use of reasonable and necessary physical restraint in dealing with
41students posing a danger to themselves or others, consistent with Section 53G-8-302;
42 (e) standards and procedures for dealing with student conduct in locations other than
43those referred to in Subsection (1)(b), if the conduct threatens harm or does harm to:
44 (i) the school;
45 (ii) school property;
46 (iii) a person associated with the school; or
47 (iv) property associated with a person described in Subsection (1)(e)(iii);
48 (f) procedures for the imposition of disciplinary sanctions, including suspension and
49expulsion;
50 (g) specific provisions, consistent with Section 53E-3-509, for preventing and
51responding to gang-related activities in the school, on school grounds, on school vehicles, or in
52connection with school-related activities or events;
53 (h) standards and procedures for dealing with habitual disruptive or unsafe student
54behavior in accordance with the provisions of this part; and
55 (i) procedures for responding to reports received through the SafeUT Crisis Line under
56Subsection 53B-17-1202(3).
57 (2) (a) Each local school board shall establish a policy on detaining students after
58regular school hours as a part of the district-wide discipline plan required under Section 02-21-23 11:30 AM H.B. 536
- 3 -
5953G-8-202.
60 (b) (i) The policy described in Subsection (2)(a) shall apply to elementary school
61students, grades kindergarten through 6.
62 (ii) The local school board shall receive input from teachers, school administrators, and
63parents of the affected students before adopting the policy.
64 (c) The policy described in Subsection (2)(a) shall provide for:
65 (i) notice to the parent of a student prior to holding the student after school on a
66particular day; and
67 (ii) exceptions to the notice provision if detention is necessary for the student's health
68or safety.
69 (3) (a) Each LEA shall adopt a policy for responding to possession or use of [electronic
70cigarette products] a tobacco product, an electronic cigarette product, or a nicotine product by a
71student on school property.
72 (b) The policy described in Subsection (3)(a) shall:
73 (i) prohibit students from possessing or using [electronic cigarette products] a tobacco
74product, an electronic cigarette product, or a nicotine product on school property;
75 (ii) include policies or procedures for the confiscation or surrender of [electronic
76cigarette products; and] a tobacco product, an electronic cigarette product, or a nicotine
77product;
78 (iii) require a school administrator or school administrator's designee to dispose of or
79destroy a confiscated [electronic cigarette product.] tobacco product, an electronic cigarette
80product, or a nicotine product; and
81 (iv) include policies and procedures for issuing a citation in accordance with Section
8253G-8-211.
83 (c) Notwithstanding Subsection (3)(b)(iii), an LEA may release a confiscated electronic
84cigarette product to local law enforcement if:
85 (i) a school official has a reasonable suspicion that a confiscated electronic cigarette
86product contains an illegal substance; and
87 (ii) local law enforcement requests that the LEA release the confiscated electronic
88cigarette product to local law enforcement as part of an investigation or action.
89 Section 2. Section 53G-8-211 is amended to read: H.B. 536 02-21-23 11:30 AM
- 4 -
90 53G-8-211. Responses to school-based behavior.
91 (1) As used in this section:
92 (a) "Evidence-based" means a program or practice that has:
93 (i) had multiple randomized control studies or a meta-analysis demonstrating that the
94program or practice is effective for a specific population;
95 (ii) been rated as effective by a standardized program evaluation tool; or
96 (iii) been approved by the state board.
97 (b) "Habitual truant" means a school-age child who:
98 (i) is in grade 7 or above, unless the school-age child is less than 12 years old;
99 (ii) is subject to the requirements of Section 53G-6-202; and
100 (iii) (A) is truant at least 10 times during one school year; or
101 (B) fails to cooperate with efforts on the part of school authorities to resolve the
102school-age child's attendance problem as required under Section 53G-6-206.
103 (c) "Minor" means the same as that term is defined in Section 80-1-102.
104 (d) "Mobile crisis outreach team" means the same as that term is defined in Section
10562A-15-102.
106 (e) "Prosecuting attorney" means the same as that term is defined in Subsections
10780-1-102(58)(b) and (c).
108 (f) "Restorative justice program" means a school-based program or a program used or
109adopted by a local education agency that is designed:
110 (i) to enhance school safety, reduce school suspensions, and limit referrals to law
111enforcement agencies and courts; and
112 (ii) to help minors take responsibility for and repair harmful behavior that occurs in
113school.
114 (g) "School administrator" means a principal of a school.
115 (h) "School is in session" means a day during which the school conducts instruction for
116which student attendance is counted toward calculating average daily membership.
117 (i) "School resource officer" means a law enforcement officer, as defined in Section
11853-13-103, who contracts with, is employed by, or whose law enforcement agency contracts
119with a local education agency to provide law enforcement services for the local education
120agency. 02-21-23 11:30 AM H.B. 536
- 5 -
121 (j) "School-age child" means the same as that term is defined in Section 53G-6-201.
122 (k) (i) "School-sponsored activity" means an activity, fundraising event, club, camp,
123clinic, or other event or activity that is authorized by a specific local education agency or public
124school, according to LEA governing board policy, and satisfies at least one of the following
125conditions:
126 (A) the activity is managed or supervised by a local education agency or public school,
127or local education agency or public school employee;
128 (B) the activity uses the local education agency's or public school's facilities,
129equipment, or other school resources; or
130 (C) the activity is supported or subsidized, more than inconsequentially, by public
131funds, including the public school's activity funds or Minimum School Program dollars.
132 (ii) "School-sponsored activity" includes preparation for and involvement in a public
133performance, contest, athletic competition, demonstration, display, or club activity.
134 (l) (i) "Status offense" means an offense that would not be an offense but for the age of
135the offender.
136 (ii) "Status offense" does not mean an offense that by statute is a misdemeanor or
137felony.
138 (2) This section applies to a minor enrolled in school who is alleged to have committed
139an offense at the school where the student is enrolled:
140 (a) on school property where the student is enrolled:
141 (i) when school is in session; or
142 (ii) during a school-sponsored activity; or
143 (b) [except during the period between March 17, 2021 and June 1, 2022,] that is
144truancy.
145 (3) (a) Except as provided in Subsections (3)(e) and (5), if a minor is alleged to have
146committed an offense that is a class C misdemeanor, an infraction, a status offense on school
147property, or an offense that is truancy:
148 (i) [a school district] an LEA or school may not refer the minor to a law enforcement
149officer or agency or a court; and
150 (ii) a law enforcement officer or agency may not refer the minor to a prosecuting
151attorney or a court. H.B. 536 02-21-23 11:30 AM
- 6 -
152 (b) Except as provided in Subsection (3)(e), if a minor is alleged to have committed an
153offense that is a class C misdemeanor, an infraction, a status offense on school property, or an
154offense that is truancy, [a school district] an LEA, school, or law enforcement officer or agency
155may refer the minor to evidence-based alternative interventions, including:
156 (i) a mobile crisis outreach team;
157 (ii) a youth services center as defined in Section 80-5-102;
158 (iii) a youth court or comparable restorative justice program;
159 (iv) evidence-based interventions created and developed by the school or [school
160district] an LEA; and
161 (v) other evidence-based interventions that may be jointly created and developed by a
162local education agency, the state board, the juvenile court, local counties and municipalities,
163the Department of Health, or the Department of Human Services.
164 (c) Notwithstanding Subsection (3)(a), a school resource officer may:
165 (i) investigate possible criminal offenses and conduct, including conducting probable
166cause searches;
167 (ii) consult with school administration about the conduct of a minor enrolled in a
168school;
169 (iii) transport a minor enrolled in a school to a location if the location is permitted by
170law;
171 (iv) take temporary custody of a minor in accordance with Section 80-6-201; or
172 (v) protect the safety of students and the school community, including the use of
173reasonable and necessary physical force when appropriate based on the totality of the
174circumstances.
175 (d) Notwithstanding other provisions of this section, if a law enforcement officer has
176cause to believe a minor has committed an offense on school property when school is not in
177session and not during a school-sponsored activity, the law enforcement officer may refer the
178minor to:
179 (i) a prosecuting attorney or a court; or
180 (ii) evidence-based alternative interventions at the discretion of the law enforcement
181officer.
182 (e) If a minor is alleged to have committed a traffic offense that is an infraction, [a 02-21-23 11:30 AM H.B. 536
- 7 -
183school district] an LEA, a school, or a law enforcement officer or agency may refer the minor
184to a prosecuting attorney or a court for the traffic offense.
185 (4) [A school district] An LEA or school shall refer a minor for prevention and early
186intervention youth services, as described in Section 80-5-201, by the Division of Juvenile
187Justice Services for a class C misdemeanor committed on school property or for being a
188habitual truant if the minor refuses to participate in an evidence-based alternative intervention
189described in Subsection (3)(b).
190 (5) [A school district] An LEA or school may refer a minor to a court or a law
191enforcement officer or agency for an alleged class C misdemeanor committed on school
192property or for allegedly being a habitual truant if the minor:
193 (a) refuses to participate in an evidence-based alternative intervention under Subsection
194(3)(b); and
195 (b) fails to participate in prevention and early intervention youth services provided by
196the Division of Juvenile Justice Services under Subsection (4).
197 (6) (a) If a minor is referred to a court or a law enforcement officer or agency under
198Subsection (5), the school shall appoint a school representative to continue to engage with the
199minor and the minor's family through the court process.
200 (b) A school representative appointed under Subsection (6)(a) may not be a school
201resource officer.
202 (c) [A school district] An LEA or school shall include the following in the school
203district's or school's referral to the court or the law enforcement officer or agency:
204 (i) attendance records for the minor;
205 (ii) a report of evidence-based alternative interventions used by the school before the
206referral, including outcomes;
207 (iii) the name and contact information of the school representative assigned to actively
208participate in the court process with the minor and the minor's family;
209 (iv) a report from the Division of Juvenile Justice Services that demonstrates the
210minor's failure to complete or participate in prevention and early intervention youth services
211under Subsection (4); and
212 (v) any other information that the [school district] LEA or school considers relevant.
213 (d) A minor referred to a court under Subsection (5) may not be ordered to or placed in H.B. 536 02-21-23 11:30 AM
- 8 -
214secure detention, including for a contempt charge or violation of a valid court order under
215Section 78A-6-353, when the underlying offense is a class C misdemeanor occurring on school
216property or habitual truancy.
217 (e) If a minor is referred to a court under Subsection (5), the court may use, when
218available, the resources of the Division of Juvenile Justice Services or the Division of
219Substance Abuse and Mental Health to address the minor.
220 (7) If the alleged offense is a class B misdemeanor or a class A misdemeanor, the
221school administrator, the school administrator's designee, or a school resource officer may refer
222the minor directly to a juvenile court or to the evidence-based alternative interventions in
223Subsection (3)(b).
224 (8) (a) If a minor violates Subsection 76-10-105(2) while on school property, an LEA
225or school may issue a warning to the minor that provides:
226 (i) notice of the potential consequences for subsequent violations; and
227 (ii) information about available resources for quitting the use of tobacco, nicotine, or
228electronic cigarette products.
229 (b) For each warning an LEA or school issues under this subsection, an LEA or school
230shall provide notice to the minor's parent and a copy of the warning.
231 (c) After a minor receives three warnings under this subsection, if the minor is alleged
232to have violated Subsection 76-10-105(2), an LEA or school shall:
233 (i) issue a citation to the minor in accordance with Section 80-6-302;
234 (ii) refer the minor to a prosecuting attorney or a court; or
235 (iii) refer the minor to an evidence-based alternative intervention described in
236Subsection (3)(b).
237 Section 3. Section 76-10-105 is amended to read:
238 76-10-105. Buying or possessing a tobacco product or an electronic cigarette
239product by a minor -- Penalty -- Compliance officer authority -- Juvenile court
240jurisdiction.
241 (1) An individual who is 18 years old or older, but younger than 21 years old, and who
242buys or attempts to buy, accepts, or has in the individual's possession a tobacco product, an
243electronic cigarette product, or a nicotine product is:
244 (a) guilty of an infraction; and 02-21-23 11:30 AM H.B. 536
- 9 -
245 (b) subject to:
246 (i) a minimum fine or penalty of $60; and
247 (ii) participation in a court-approved tobacco education or cessation program, which
248may include a participation fee.
249 (2) (a) An individual who is under 18 years old and who buys or attempts to buy,
250accepts, or has in the individual's possession a tobacco product, an electronic cigarette product,
251or a nicotine product is subject to a citation under Section 80-6-302, unless the violation is
252committed on school property under Section 53G-8-211.
253 (b) If a violation under this section is adjudicated under Section 80-6-701, the minor
254may be subject to the following:
255 (i) a fine or penalty, in accordance with Section 80-6-709; and
256 (ii) participation in a court-approved tobacco education program, which may include a
257participation fee.
258 (3) [(a) A] Except as provided in Section 53G-8-211, a compliance officer appointed
259by a board of education under Section 53G-4-402 may not issue a citation for a violation of this
260section committed on school property.
261 [(b) A cited violation committed on school property shall be addressed in accordance
262with Section 53G-8-211.]