CSHB 187(JUD): "An Act relating to civil penalties for the improper sale of tobacco products and to suspension of business license endorsements and the right to obtain business license endorsements where the suspension is based on the improper sale of tobacco products."
00 CS FOR HOUSE BILL NO. 187(JUD) 01 "An Act relating to civil penalties for the improper sale of tobacco products and to 02 suspension of business license endorsements and the right to obtain business license 03 endorsements where the suspension is based on the improper sale of tobacco products." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 43.70.075(d) is amended to read: 06 (d) If a person who holds an endorsement issued under this section, or an 07 agent or an employee of a person who holds an endorsement issued under this section 08 acting within the scope of the agency or employment, has been convicted of violating 09 AS 11.76.100, 11.76.106, or 11.76.107, the department, after a hearing under (m) of 10 this section, shall suspend the endorsement for a period of 11 (1) 20 days and impose a civil penalty of $300 if the person has not 12 been previously convicted of violating AS 11.76.100, 11.76.106, or 11.76.107 and is 13 not otherwise subject to the sanctions described in (2) - (4) of this subsection; 14 (2) 45 days and impose a civil penalty of $500 if, within the 24 months
01 before the date of the department's notice under (m) of this section, the person, or an 02 agent or employee of the person while acting within the scope of the agency or 03 employment of the person, was convicted once of violating AS 11.76.100, 11.76.106, 04 or 11.76.107; 05 (3) 90 days and impose a civil penalty of $1,000 if, within the 24 06 months before the date of the department's notice under (m) of this section, the person, 07 or an agent or employee of the person while acting within the scope of the agency or 08 employment of the person, was convicted twice of violating AS 11.76.100, 11.76.106, 09 or 11.76.107, or a provision of this section or a regulation implementing this section 10 adopted under AS 43.70.090; or 11 (4) one year and impose a civil penalty of $2,500 if, within the 24 12 months before the date of the department's notice under (m) of this section, the person, 13 or an agent or employee of the person while acting within the scope of the agency or 14 employment of the person, was convicted more than twice of violating AS 11.76.100, 15 11.76.106, or 11.76.107. 16 * Sec. 2. AS 43.70.075(m) is amended to read: 17 (m) The department may initiate suspension of a business license endorsement 18 or the right to obtain a business license endorsement under this section by sending the 19 person subject to the suspension a notice by certified mail, return receipt requested, or 20 by delivering the notice to the person. The notice must contain information that 21 informs the person of the grounds for suspension, the length of any suspension sought, 22 and the person's right to administrative review. A suspension begins 30 days after 23 receipt of notice described in this subsection unless the person delivers a timely 24 written request for a hearing to the department in the manner provided by regulations 25 of the department. If a hearing is requested under this subsection, an administrative 26 law judge [A HEARING OFFICER] of the office of administrative hearings 27 (AS 44.64.010) shall determine the issues by using the preponderance of the evidence 28 test and shall, to the extent they do not conflict with regulations adopted under 29 AS 44.64.060, conduct the hearing in the manner provided by regulations of the 30 department. A hearing under this subsection is limited to the following questions: 31 (1) was the person holding the business license endorsement, or an
01 agent or employee of the person while acting within the scope of the agency or 02 employment of the person, convicted by plea or judicial finding of violating 03 AS 11.76.100, 11.76.106, or 11.76.107; 04 (2) if the department does not allege a conviction of AS 11.76.100, 05 11.76.106, or 11.76.107, did the person, or an agent or employee of the person while 06 acting within the scope of the agency or employment of the person, violate a provision 07 of (a) or (g) of this section; 08 (3) within the 24 months before the date of the department's notice 09 under this subsection, was the person, or an agent or employee of the person while 10 acting within the scope of the agency or employment of the person, convicted of 11 violating AS 11.76.100, 11.76.106, or 11.76.107 or adjudicated for violating a 12 provision of (a) or (g) of this section; 13 (4) did the person holding the business license endorsement 14 negligently violate AS 11.76.100, 11.76.106, or 11.76.107; in making this 15 determination, the hearing officer may consider whether the person holding the 16 business license endorsement had adopted and used an employee education, 17 compliance, and disciplinary program as provided in (t) of this section; 18 (5) any other evidence that might tend to mitigate or aggravate the 19 length of suspension and civil penalty. 20 * Sec. 3. AS 43.70.075 is amended by adding new subsections to read: 21 (t) Based on evidence provided at the hearing under (m)(4) or (5) of this 22 section, the department may reduce the license suspension period under (d) of this 23 section if the person holding the business license endorsement establishes that, before 24 the date of the violation, the person had 25 (1) adopted and enforced a written policy against selling cigarettes, 26 cigars, tobacco, or products containing tobacco to a person under 19 years of age in 27 violation of AS 11.76.100; 28 (2) informed the person's agents and employees of the applicable laws 29 and their requirements; 30 (3) required the employees to sign a form that the employees had been 31 informed of and understood the written policy and the requirements of AS 11.76.100;
01 (4) required employees to verify the age of tobacco product customers 02 by means of photographic identification; and 03 (5) established and enforced disciplinary sanctions for noncompliance. 04 (u) A reduction in the period of suspension under (t) of this section may not be 05 granted more than once in a 12-month period for any one location. 06 (v) In lieu of a hearing under (m) of this section, the department and the 07 person holding a business license endorsement may agree to an informal disposition of 08 a suspension based on a violation of AS 11.76.100, 11.76.106, or 11.76.107. The 09 person holding the business license endorsement shall admit that a violation occurred 10 and punishment under this section is proper. The department may suspend the license 11 and impose the appropriate civil penalty under this section; the department shall 12 consider the fact that the violation is admitted and may reduce the period of 13 suspension based on the admission if the person has not previously received a sanction 14 under (d) of this section. 15 (w) A period of suspension may not be reduced under (t) or (v) of this section 16 to a period of less than 10 days. 17 (x) A conviction for a violation of AS 11.76.100, 11.76.106, or 11.76.107 by 18 the agent or employee of the person who holds the business license endorsement is 19 rebuttably presumed to constitute proof of the fact that the agent or employee 20 negligently sold a cigarette, a cigar, or tobacco, or a product containing tobacco to a 21 person under 19 years of age. The person who holds the business license endorsement 22 may overcome the presumption by establishing by clear and convincing evidence that 23 the agent or employee did not negligently sell a cigarette, a cigar, or tobacco, or a 24 product containing tobacco to a person under 19 years in violation of AS 11.76.100, 25 11.76.106, or 11.76.107 as alleged in the citation issued to the agent or employee. The 26 presentation of evidence authorized by this subsection does not constitute a collateral 27 attack on the conviction described in this subsection.