00 HOUSE BILL NO. 174 01 "An Act raising the minimum age to purchase, sell, exchange, or possess a product 02 containing nicotine or an electronic smoking product; and providing for an effective 03 date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05  * Section 1. AS 11.76.100(a) is amended to read: 06 (a) A person commits the offense of selling or giving tobacco to a person  07 under 21 years of age [MINOR] if the person 08 (1) negligently sells a cigarette, a cigar, tobacco, or a product 09 containing tobacco to a person under 21 [19] years of age; 10 (2) is 21 [19] years of age or older and negligently exchanges or gives 11 a cigarette, a cigar, tobacco, or a product containing tobacco to a person under 21 [19] 12 years of age; 13 (3) maintains a vending machine that dispenses cigarettes, cigars, 14 tobacco, or products containing tobacco; or 01 (4) holds a business license endorsement under AS 43.70.075 and 02 allows a person under 21 [19] years of age to sell a cigarette, a cigar, tobacco, or a 03 product containing tobacco. 04  * Sec. 2. AS 11.76.100(b) is amended to read: 05 (b) Notwithstanding the provisions of (a) of this section, a person who 06 maintains a vending machine is not in violation of (a)(3) of this section if the vending 07 machine is located 08 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 09 licensed as a club under AS 04.11.110, or licensed as a package store under 10 AS 04.11.150; and 11 (A) as far as practicable from the primary entrance; and 12 (B) in a place that is directly and continually supervised by a 13 person employed on the licensed premises during the hours the vending 14 machine is accessible to the public; or 15 (2) in an employee break room or other controlled area of a private 16 work place that is not generally considered a public place and the room or area 17 contains a posted warning sign at least 11 inches by 14 inches indicating that 18 possession of tobacco by a person under 21 [19] years of age is prohibited under 19 AS 11.76.105. 20  * Sec. 3. AS 11.76.100(e) is amended to read: 21 (e) The provisions of (a) of this section do not apply to a person who sells or 22 gives tobacco to a person under 21 years of age [MINOR,] if the person under 21  23 years of age [MINOR] is a prisoner at an adult correctional facility. 24  * Sec. 4. AS 11.76.100 is amended by adding a new subsection to read: 25 (g) The provisions of (a) of this section do not apply to a person who sells or 26 gives tobacco to a person under 21 years of age if the person receiving or possessing 27 the tobacco is 18 years of age or older and an active member of the armed forces of 28 the United States who possesses a valid active duty military or armed forces 29 identification card issued by the United States Department of Defense or the United 30 States Department of Homeland Security. 31  * Sec. 5. AS 11.76.105 is amended to read: 01 Sec. 11.76.105. Possession of tobacco, electronic smoking products, or  02 products containing nicotine by a person under 21 years of age [MINOR]. (a) A 03 person under 21 [19] years of age may not knowingly possess a cigarette, a cigar, 04 tobacco, a product containing tobacco, an electronic smoking product, or a product 05 containing nicotine in this state. This subsection does not apply to a person who is a 06 prisoner at an adult correctional facility or a person who is 18 years of age or older  07 and an active member of the armed forces of the United States who possesses a  08 valid active duty military or armed forces identification card issued by the United  09 States Department of Defense or the United States Department of Homeland  10 Security. 11 (b) In a prosecution under (a) of this section for possession of an electronic 12 smoking product or a product containing nicotine, it is an affirmative defense that the 13 electronic smoking product or product containing nicotine possessed by the person 14 under 21 [19] years of age was intended or expected to be consumed without being 15 combusted, and the electronic smoking product or product containing nicotine 16 (1) has been approved by the United States Food and Drug 17 Administration for sale as a tobacco use cessation or harm reduction product or for 18 other medical purposes; 19 (2) was being marketed and sold for the approved purposes; and 20 (3) was 21 (A) prescribed by a health care professional; 22 (B) given to the person by the person's parent or guardian; 23 (C) provided by a state-approved tobacco cessation program 24 administered by the Department of Health and Social Services; or 25 (D) provided by a pharmacist to a person 18 years of age or 26 older without a prescription. 27 (c) Possession of tobacco, an electronic smoking product, or a product 28 containing nicotine by a person under 21 years of age [MINOR] is a violation. 29  * Sec. 6. AS 11.76.106(b) is amended to read: 30 (b) Subsection (a) does not apply if the sale 31 (1) is by vending machine as provided under AS 11.76.100(b) or 01 11.76.109(f); 02 (2) is a wholesale transaction, the person is licensed as a manufacturer 03 or distributor under AS 43.50.010, and the sale occurs on premises where no retail 04 transactions occur; 05 (3) is by a retailer who sells primarily cigarettes, cigars, tobacco, 06 products containing tobacco, electronic smoking products, or products containing 07 nicotine and who restricts access to the premises to only those individuals who are 08 (A) 21 [19] years of age or older; or 09 (B) 18 years of age or older and active members of the  10 armed forces of the United States who possess a valid active duty military  11 or armed forces identification card issued by the United States  12 Department of Defense or the United States Department of Homeland  13 Security; or 14 (4) is of electronic smoking products over the Internet to a person 15 (A) 21 [19] years of age or older; or  16 (B) 18 years of age or older and an active member of the  17 armed forces of the United States who possesses a valid armed forces  18 identification card issued by the United States Department of Defense or  19 an Alaska National Guard identification card. 20  * Sec. 7. AS 11.76.109(a) is amended to read: 21 (a) A person commits the offense of selling or giving an electronic smoking 22 product or a product containing nicotine to a person under 21 years of age [MINOR] 23 if the person 24 (1) negligently sells an electronic smoking product or a product 25 containing nicotine to a person under 21 [19] years of age; 26 (2) is 21 [19] years of age or older and negligently exchanges or gives 27 an electronic smoking product or a product containing nicotine to a person under 21 28 [19] years of age; 29 (3) maintains a vending machine that dispenses electronic smoking 30 products or products containing nicotine; or 31 (4) holds a business license endorsement under AS 43.70.075 and 01 allows a person under 21 [19] years of age to sell an electronic smoking product or a 02 product containing nicotine. 03  * Sec. 8. AS 11.76.109(b) is amended to read: 04 (b) The provisions of (a) of this section do not apply to the sale, exchange, or 05 gift to a person under 21 [19] years of age of an electronic smoking product or a 06 product containing nicotine that is intended or expected to be consumed without being 07 combusted if the electronic smoking product or product containing nicotine 08 (1) has been approved by the United States Food and Drug 09 Administration for sale as a tobacco use cessation or harm reduction product or for 10 other medical purposes; 11 (2) is being marketed and sold solely for the approved purposes; and 12 (3) is 13 (A) prescribed by a health care professional; 14 (B) given to a person by the person's parent or legal guardian; 15 (C) provided by a state-approved tobacco cessation program 16 administered by the Department of Health and Social Services; or 17 (D) provided by a pharmacist to a person 18 years of age or 18 older without a prescription. 19  * Sec. 9. AS 11.76.109(d) is amended to read: 20 (d) Notwithstanding (a)(3) of this section, a person who maintains a vending 21 machine is not in violation of (a)(3) of this section if the vending machine is located 22 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 23 licensed as a club under AS 04.11.110, or licensed as a package store under 24 AS 04.11.150, and is located 25 (A) as far as practicable from the primary entrance; and 26 (B) in a place that is directly and continually supervised by a 27 person employed on the licensed premises during the hours the vending 28 machine is accessible to the public; or 29 (2) in an employee break room or other controlled area of a private 30 work place that is not generally considered a public place and the room or area 31 contains a posted warning sign at least 11 inches by 8.5 inches indicating that 01 possession of electronic smoking products or products containing nicotine by a person 02 under 21 [19] years of age without a prescription is prohibited under AS 11.76.109. 03  * Sec. 10. AS 11.76.109(g) is amended to read: 04 (g) Selling or giving an electronic smoking product or a product containing 05 nicotine to a person under 21 years of age [MINOR] is a violation and, upon 06 conviction, is punishable by a fine of not less than $300. 07  * Sec. 11. AS 11.76.109 is amended by adding a new subsection to read: 08 (h) The provisions of (a) of this section do not apply to a person who sells or 09 gives an electronic smoking product or a product containing nicotine to a person under 10 21 years of age if the person receiving the electronic smoking product or product 11 containing nicotine is 18 years of age or older and an active member of the armed 12 forces of the United States who possesses a valid active duty military or armed forces 13 identification card issued by the United States Department of Defense or the United 14 States Department of Homeland Security. 15  * Sec. 12. AS 43.50.105(b) is amended to read: 16 (b) A person who is licensed under this chapter may not ship or cause to be 17 shipped cigarettes to a person in this state unless the person receiving the cigarettes 18 (1) is licensed under this chapter; 19 (2) holds a business license endorsement under AS 43.70.075; 20 (3) is an operator of a customs bonded warehouse under 19 U.S.C. 21 1311 or 19 U.S.C. 1555; 22 (4) is an instrumentality of the federal government or an Indian tribal 23 organization authorized by law to possess cigarettes not taxed under this chapter; [OR] 24 (5) is an individual 21 [19] years of age or older receiving the 25 cigarettes for personal consumption and the tax imposed on the cigarettes under this 26 chapter has been paid; or  27 (6) is an individual who is 18 years of age or older and an active  28 member of the armed forces of the United States who possesses a valid active  29 duty military or armed forces identification card issued by the United States  30 Department of Defense or the United States Department of Homeland Security. 31  * Sec. 13. AS 43.70.075(f) is amended to read: 01 (f) A person who holds a license endorsement issued under this section shall 02 post on the licensed premises a warning sign as described in this subsection. A 03 warning sign required by this subsection must be at least 8.5 inches by 11 inches and 04 must read: "The sale of electronic smoking products or products containing nicotine 05 without a prescription or tobacco products to persons under age 21 [19] is illegal." A 06 person holding an endorsement issued under this section shall display the warning sign 07 in a manner conspicuous to a person purchasing or consuming tobacco products, 08 electronic smoking products, or products containing nicotine on the licensed premises. 09 The department shall make available the warning signs required under this section to a 10 person who holds an endorsement issued under this section or a person who requests 11 the sign with the intention of displaying it. 12  * Sec. 14. AS 43.70.075(m) is amended to read: 13 (m) The department may initiate suspension of a business license endorsement 14 or the right to obtain a business license endorsement under this section by sending the 15 person subject to the suspension a notice by certified mail, return receipt requested, or 16 by delivering the notice to the person. The notice must contain information that 17 informs the person of the grounds for suspension, the length of any suspension sought, 18 and the person's right to administrative review. A suspension begins 30 days after 19 receipt of notice described in this subsection unless the person delivers a timely 20 written request for a hearing to the department in the manner provided by regulations 21 of the department. If a hearing is requested under this subsection, an administrative 22 law judge of the office of administrative hearings (AS 44.64.010) shall determine the 23 issues by using the preponderance of the evidence test and shall, to the extent they do 24 not conflict with regulations adopted under AS 44.64.060, conduct the hearing in the 25 manner provided by regulations of the department. A hearing under this subsection is 26 limited to the following questions: 27 (1) was the person holding the business license endorsement, or an 28 agent or employee of the person while acting within the scope of the agency or 29 employment of the person, convicted by plea or judicial finding of violating 30 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; 31 (2) if the department does not allege a conviction of AS 11.76.100, 01 11.76.106, 11.76.107, or 11.76.109, did the person, or an agent or employee of the 02 person while acting within the scope of the agency or employment of the person, 03 violate a provision of (a) or (g) of this section; 04 (3) within the 24 months before the date of the department's notice 05 under this subsection, was the person, or an agent or employee of the person while 06 acting within the scope of the agency or employment of the person, convicted of 07 violating AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 or adjudicated for 08 violating a provision of (a) or (g) of this section; 09 (4) did the person holding the business license endorsement establish 10 that the person holding the business license endorsement had adopted and enforced an 11 education, a compliance, and a disciplinary program for agents and employees of the 12 person as provided in (t) of this section; 13 (5) did the person holding the business license endorsement overcome 14 the rebuttable presumption established in (w) of this section; 15 (6) within five years before the date of the violation that is the subject 16 of the hearing, did the department establish that the person holding the business 17 license endorsement 18 (A) previously violated (a) or (g) of this section; 19 (B) previously violated AS 11.76.100, 11.76.106, 11.76.107, or 20 11.76.109 at a location or outlet in a location for which the person holds a 21 business license endorsement, or had an agent or employee previously violate 22 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; this subparagraph does not 23 apply to a prior conviction that served to enhance a suspension period under 24 (d)(2) - (4) of this section; or 25 (C) engaged at a location owned by the person in other conduct 26 that was or is likely to result in the sale of tobacco, electronic smoking 27 products, or products containing nicotine to a person under 21 [19] years of 28 age in violation of AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109. 29  * Sec. 15. AS 43.70.075(t) is amended to read: 30 (t) Based on evidence provided at the hearing under (m)(4) - (6) of this 31 section, the department may reduce the license suspension period under (d) of this 01 section if the person holding the business license endorsement establishes that, before 02 the date of the violation, the person had 03 (1) adopted and enforced a written policy against selling cigarettes, 04 cigars, tobacco, products containing tobacco, electronic smoking products, or products 05 containing nicotine to a person under 21 [19] years of age in violation of 06 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; 07 (2) informed the person's agents and employees of the applicable laws 08 and their requirements and conducted training on complying with the laws and 09 requirements; 10 (3) required each agent and employee of the person to sign a form 11 stating that the agent and employee has been informed of and understands the written 12 policy and the requirements of AS 11.76.100, 11.76.106, 11.76.107, and 11.76.109; 13 (4) determined that the agents and employees of the person had 14 sufficient experience and ability to comply with the written policy and requirements of 15 AS 11.76.100, 11.76.106, 11.76.107, and 11.76.109; 16 (5) required the agents and employees of the person to verify the age 17 of purchasers of cigarettes, cigars, tobacco, other products containing tobacco, 18 electronic smoking products, or products containing nicotine by means of a valid 19 government issued photographic identification; 20 (6) established and enforced disciplinary sanctions for noncompliance 21 with the written policy or the requirements of AS 11.76.100, 11.76.106, 11.76.107, 22 and 11.76.109; and 23 (7) monitored the compliance of the agents and employees of the 24 person with the written policy and the requirements of AS 11.76.100, 11.76.106, 25 11.76.107, and 11.76.109. 26  * Sec. 16. AS 43.70.075(w) is amended to read: 27 (w) For purposes of (m)(5) of this section, a conviction for a violation of 28 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 by the agent or employee of the 29 person who holds the business license endorsement is rebuttably presumed to 30 constitute proof of the fact that the agent or employee negligently sold a cigarette, a 31 cigar, or tobacco, a product containing tobacco, an electronic smoking product, or a 01 product containing nicotine to a person under 21 [19] years of age. The person who 02 holds the business license endorsement may overcome the presumption by 03 establishing by clear and convincing evidence that the agent or employee did not 04 negligently sell a cigarette, a cigar, or tobacco, a product containing tobacco, an 05 electronic smoking product, or a product containing nicotine to a person under 21 [19] 06 years of age in violation of AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 as 07 alleged in the citation issued to the agent or employee. The presentation of evidence 08 authorized by this subsection does not constitute a collateral attack on the conviction 09 described in this subsection. 10  * Sec. 17. AS 47.12.030(b) is amended to read: 11 (b) When a minor is accused of violating a statute specified in this subsection, 12 other than a statute the violation of which is a felony, this chapter and the Alaska 13 Delinquency Rules do not apply and the minor accused of the offense shall be 14 charged, prosecuted, and sentenced in the district court in the same manner as an 15 adult; if a minor is charged, prosecuted, and sentenced for an offense under this 16 subsection, the minor's parent, guardian, or legal custodian shall be present at all 17 proceedings; the provisions of this subsection apply when a minor is accused of 18 violating 19 (1) a traffic statute or regulation, or a traffic ordinance or regulation of 20 a municipality; 21 (2) AS 11.76.105, relating to the possession of tobacco by a person 22 under 21 [19] years of age; 23 (3) a fish and game statute or regulation under AS 16; 24 (4) a parks and recreational facilities statute or regulation under 25 AS 41.21; 26 (5) [REPEALED] 27 (6) a municipal curfew ordinance, whether adopted under 28 AS 29.35.085 or otherwise, unless the municipality provides for enforcement of its 29 ordinance under AS 29.25.070(b) by the municipality; in place of any fine imposed for 30 the violation of a municipal curfew ordinance, the court shall allow a defendant the 31 option of performing community work; the value of the community work, which may 01 not be lower than the amount of the fine, shall be determined under AS 12.55.055(c); 02 in this paragraph, "community work" includes the work described in AS 12.55.055(b) 03 or work that, on the recommendation of the municipal or borough assembly, city 04 council, or traditional village council of the defendant's place of residence, would 05 benefit persons within the municipality or village who are elderly or disabled. 06  * Sec. 18. This Act takes effect January 1, 2020.