CSSB 15(FIN): "An Act relating to possession of an electronic smoking product or a product containing nicotine by a minor and to selling or giving a product containing nicotine or an electronic smoking product to a minor; relating to business license endorsements to sell cigarettes, cigars, tobacco, products containing tobacco, electronic smoking products, or products containing nicotine; and relating to citations for certain offenses concerning tobacco, products containing nicotine, or electronic smoking products."
00 CS FOR SENATE BILL NO. 15(FIN) 01 "An Act relating to possession of an electronic smoking product or a product containing 02 nicotine by a minor and to selling or giving a product containing nicotine or an 03 electronic smoking product to a minor; relating to business license endorsements to sell 04 cigarettes, cigars, tobacco, products containing tobacco, electronic smoking products, or 05 products containing nicotine; and relating to citations for certain offenses concerning 06 tobacco, products containing nicotine, or electronic smoking products." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 11.76.105 is amended to read: 09 Sec. 11.76.105. Possession of tobacco, electronic smoking products, or 10 products containing nicotine by a minor. (a) A person under 19 years of age may 11 not knowingly possess a cigarette, a cigar, tobacco, [OR] a product containing 12 tobacco, an electronic smoking product, or a product containing nicotine in this 13 state. This subsection does not apply to a person who is a prisoner at an adult
01 correctional facility. 02 (b) Possession of tobacco, an electronic smoking product, or a product 03 containing nicotine by a minor is a violation. 04 * Sec. 2. AS 11.76.105 is amended by adding a new subsection to read: 05 (c) In a prosecution under (a) of this section for possession of an electronic 06 smoking product or a product containing nicotine, it is an affirmative defense that the 07 electronic smoking product or product containing nicotine possessed by the person 08 under 19 years of age was intended or expected to be consumed without being 09 combusted, and the electronic smoking product or product containing nicotine 10 (1) has been approved by the United States Food and Drug 11 Administration for sale as a tobacco use cessation or harm reduction product or for 12 other medical purposes; 13 (2) was being marketed and sold for the approved purposes; and 14 (3) was 15 (A) prescribed by a health care professional; 16 (B) given to the person by the person's parent or guardian; 17 (C) provided by a state-approved tobacco cessation program 18 administered by the Department of Health and Social Services; or 19 (D) provided by a pharmacist to a person 18 years of age or 20 older without a prescription. 21 * Sec. 3. AS 11.76.106(a) is amended to read: 22 (a) Except as provided under (b) of this section, a person may not sell 23 cigarettes, cigars, tobacco, products [OR A PRODUCT] containing tobacco, 24 electronic smoking products, or products containing nicotine unless the sale 25 occurs in a manner that allows only the sales clerk to control access to the cigarettes, 26 cigars, tobacco, products [OR PRODUCT] containing tobacco, electronic smoking 27 products, or products containing nicotine. 28 * Sec. 4. AS 11.76.106(b) is amended to read: 29 (b) Subsection (a) does not apply if the sale 30 (1) is by vending machine as provided under AS 11.76.100(b) or 31 11.76.109(f);
01 (2) is a wholesale transaction, the person is licensed as a manufacturer 02 or distributor under AS 43.50.010, and the sale occurs on premises where no retail 03 transactions occur; [OR] 04 (3) is by a retailer who sells primarily cigarettes, cigars, tobacco, 05 products [OR A PRODUCT] containing tobacco, electronic smoking products, or 06 products containing nicotine and who restricts access to the premises to only those 07 individuals who are 19 years of age or older; or 08 (4) is of electronic smoking products over the Internet to a person 09 19 years of age or older. 10 * Sec. 5. AS 11.76.107(a) is amended to read: 11 (a) A person commits the offense of failure to supervise a [CIGARETTE] 12 vending machine if the person owns premises licensed as a beverage dispensary under 13 AS 04.11.090 or licensed as a club under AS 04.11.110 or licensed as a package store 14 under AS 04.11.150 and with criminal negligence fails to have an employee supervise 15 a vending machine on those premises that dispenses cigarettes, cigars, tobacco, [OR] 16 products containing tobacco, electronic smoking products, or products containing 17 nicotine as required by AS 11.76.100(b)(1)(B) and 11.76.109(f)(1)(B). 18 * Sec. 6. AS 11.76.109(a) is amended to read: 19 (a) A person commits the offense of selling or giving an electronic smoking 20 product or a product containing nicotine to a minor if the person 21 (1) negligently sells an electronic smoking product or a product 22 containing nicotine to a person under 19 years of age; [OR] 23 (2) is 19 years of age or older and negligently exchanges or gives an 24 electronic smoking product or a product containing nicotine to a person under 19 25 years of age; 26 (3) maintains a vending machine that dispenses electronic smoking 27 products or products containing nicotine; or 28 (4) holds a business license endorsement under AS 43.70.075 and 29 allows a person under 19 years of age to sell an electronic smoking product or a 30 product containing nicotine. 31 * Sec. 7. AS 11.76.109(b) is amended to read:
01 (b) The provisions of (a) of this section do not apply to the sale, exchange, or 02 gift to a person under 19 years of age of an electronic smoking product or a product 03 containing nicotine that is intended or expected to be consumed without being 04 combusted if the electronic smoking product or product containing nicotine 05 (1) has been approved by the United States Food and Drug 06 Administration for sale as a tobacco use cessation or harm reduction product or for 07 other medical purposes; 08 (2) is being marketed and sold solely for the approved purposes; and 09 (3) is 10 (A) prescribed by a health care professional; 11 (B) given to a person by the person's parent or legal guardian; 12 (C) provided by a state-approved tobacco cessation program 13 administered by the Department of Health and Social Services; or 14 (D) provided by a pharmacist to a person 18 years of age or 15 older without a prescription. 16 * Sec. 8. AS 11.76.109(e) is amended to read: 17 (e) Selling or giving an electronic smoking product or a product containing 18 nicotine to a minor is a violation and, upon conviction, is punishable by a fine of not 19 less than $300. 20 * Sec. 9. AS 11.76.109 is amended by adding new subsections to read: 21 (f) Notwithstanding (a)(3) of this section, a person who maintains a vending 22 machine is not in violation of (a)(3) of this section if the vending machine is located 23 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 24 licensed as a club under AS 04.11.110, or licensed as a package store under 25 AS 04.11.150, and is located 26 (A) as far as practicable from the primary entrance; and 27 (B) in a place that is directly and continually supervised by a 28 person employed on the licensed premises during the hours the vending 29 machine is accessible to the public; or 30 (2) in an employee break room or other controlled area of a private 31 work place that is not generally considered a public place and the room or area
01 contains a posted warning sign at least 11 inches by 8.5 inches indicating that 02 possession of electronic smoking products or products containing nicotine by a person 03 under 19 years of age without a prescription is prohibited under AS 11.76.109. 04 (g) The court shall forward a record of each person convicted under this 05 section who holds a business license endorsement under AS 43.70.075, or who is an 06 employee or agent of a person who holds a business license endorsement under 07 AS 43.70.075, to the Department of Commerce, Community, and Economic 08 Development. 09 * Sec. 10. AS 11.81.900(b) is amended by adding a new paragraph to read: 10 (67) "electronic smoking product" 11 (A) means 12 (i) any product containing or delivering nicotine or any 13 other substance intended for human consumption that can be used by a 14 person through inhalation of vapor or aerosol from the product, of any 15 size or shape, whether the product is manufactured, distributed, 16 marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, vape pen, 17 or any other product name or descriptor; or 18 (ii) a component, solution, alternative tobacco product, 19 e-liquid, e-juice, vapor product, flavoring, or other related product of an 20 electronic cigarette, electronic cigar, electronic cigarillo, electronic 21 pipe, or other similar device of any size or shape used for, or to assist 22 with, aerosolizing and inhaling chemical substances that may cause an 23 adverse effect on human health; 24 (B) does not include marijuana as defined in AS 11.71.900. 25 * Sec. 11. AS 43.50.070(a) is amended to read: 26 (a) The department may suspend, revoke, or refuse to renew a license issued 27 under this chapter (1) for a negligent violation of AS 11.76.100, 11.76.106, 11.76.107, 28 11.76.109, or a violation of this chapter or a regulation of the department adopted 29 under this chapter; (2) if a licensee ceases to act in the capacity for which the license 30 was issued; or (3) if a licensee negligently sells tobacco or products containing 31 tobacco to a person who is required to, but does not, hold a license endorsement under
01 AS 43.70.075 or whose license endorsement under AS 43.70.075 has been suspended. 02 A person whose license is suspended or revoked may not sell cigarettes or tobacco 03 products, or permit cigarettes or tobacco products to be sold, during the period of the 04 suspension or revocation on the premises occupied or controlled by that person. A 05 disciplinary proceeding or action is not barred or abated by the expiration, transfer, 06 surrender, renewal, or extension of a license issued under this chapter. The department 07 shall comply with the provisions of AS 44.62 (Administrative Procedure Act), except 08 that a hearing officer of the department, rather than a hearing officer assigned under 09 AS 44.62.350, may conduct hearings. 10 * Sec. 12. AS 43.50.105(b) is amended to read: 11 (b) A person who is licensed under this chapter may not ship or cause to be 12 shipped cigarettes to a person in this state unless the person receiving the cigarettes 13 (1) is licensed under this chapter; 14 (2) holds a business license [TOBACCO] endorsement under 15 AS 43.70.075; 16 (3) is an operator of a customs bonded warehouse under 19 U.S.C. 17 1311 or 19 U.S.C. 1555; 18 (4) is an instrumentality of the federal government or an Indian tribal 19 organization authorized by law to possess cigarettes not taxed under this chapter; or 20 (5) is an individual 19 years of age or older receiving the cigarettes for 21 personal consumption and the tax imposed on the cigarettes under this chapter has 22 been paid. 23 * Sec. 13. AS 43.70.075(a) is amended to read: 24 (a) Unless a person has a business license endorsement issued under this 25 section for each location or outlet in a location where the person offers tobacco 26 products, electronic smoking products, or products containing nicotine for sale, a 27 person may not sell or allow a vending machine to sell in its location or outlet 28 cigarettes, cigars, tobacco, [OR OTHER] products containing tobacco, electronic 29 smoking products, or products containing nicotine as a retailer at that location or 30 outlet. Each endorsement required under this section is in addition to any other license 31 or endorsement required by law. A person may not apply for an endorsement under
01 this section for a location or outlet if an endorsement issued for the same location or 02 outlet is currently suspended or revoked. An endorsement issued for a location or 03 outlet to a person in violation of this subsection is void. 04 * Sec. 14. AS 43.70.075(d) is amended to read: 05 (d) If a person who holds an endorsement issued under this section, or an 06 agent or an employee of a person who holds an endorsement issued under this section 07 acting within the scope of the agency or employment, has been convicted of violating 08 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, the department shall impose 09 a civil penalty as set out in this subsection. However, following a hearing under (m) of 10 this section, and based on evidence admitted at that hearing concerning questions 11 specified in (m)(4) and (6) of this section, the department may reduce by not more 12 than 10 days a suspension under (1) of this subsection, or by not more than 20 days a 13 suspension under (2) of this subsection, or increase by not more than 10 days a 14 suspension under (1) of this subsection, or by not more than 20 days a suspension 15 under (2) of this subsection. If a hearing is not requested, or if a hearing is requested 16 and the department determines that the evidence admitted does not support increasing 17 or decreasing the suspension, the department shall suspend the endorsement for a 18 period of 19 (1) 20 days and impose a civil penalty of $500 [$300] if the person has 20 not been previously convicted of violating AS 11.76.100, 11.76.106, [OR] 11.76.107, 21 or 11.76.109 and is not otherwise subject to the sanctions described in (2) - (4) of this 22 subsection; 23 (2) 45 days and impose a civil penalty of $2,000 [$500] if, within the 24 24 months before the date of the department's notice under (m) of this section, the 25 person, or an agent or employee of the person while acting within the scope of the 26 agency or employment of the person, was convicted once of violating AS 11.76.100, 27 11.76.106, [OR] 11.76.107, or 11.76.109; 28 (3) 90 days and impose a civil penalty of $4,000 [$1,000] if, within the 29 24 months before the date of the department's notice under (m) of this section, the 30 person, or an agent or employee of the person while acting within the scope of the 31 agency or employment of the person, was convicted twice of violating AS 11.76.100,
01 11.76.106, [OR] 11.76.107, or 11.76.109, or a provision of this section or a regulation 02 implementing this section adopted under AS 43.70.090; or 03 (4) one year and impose a civil penalty of $10,000 [$2,500] if, within 04 the 24 months before the date of the department's notice under (m) of this section, the 05 person, or an agent or employee of the person while acting within the scope of the 06 agency or employment of the person, was convicted three or more times [THAN 07 TWICE] of violating AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109. 08 * Sec. 15. AS 43.70.075(f) is amended to read: 09 (f) A person who holds a license endorsement issued under this section shall 10 post on the licensed premises a warning sign as described in this subsection. A 11 warning sign required by this subsection must be at least 8.5 [6] inches by 11 [18] 12 inches and must read [, IN LETTERING AT LEAST 1.25 INCHES HIGH]: "The sale 13 of electronic smoking products or products containing nicotine without a 14 prescription or tobacco products to persons under age 19 is illegal." A person holding 15 an endorsement issued under this section shall display the warning sign in a manner 16 conspicuous to a person purchasing or consuming tobacco products, electronic 17 smoking products, or products containing nicotine on the licensed premises. The 18 department shall make available the [, WITHOUT CHARGE, FURNISH] warning 19 signs required under this section to a person who holds an endorsement issued under 20 this section or a person who requests the sign with the intention of displaying it. 21 * Sec. 16. AS 43.70.075(i) is amended to read: 22 (i) The commissioner or the commissioner of revenue may seize cigarettes, 23 electronic smoking products, or products containing nicotine that do not comply 24 with this section. After notice and an opportunity for a hearing, the commissioner or 25 the commissioner of revenue shall destroy cigarettes, electronic smoking products, 26 or products containing nicotine seized under this subsection. 27 * Sec. 17. AS 43.70.075(l) is amended to read: 28 (l) Notwithstanding (a) of this section, a person owning vending machines that 29 offer tobacco products, electronic smoking products, or products containing 30 nicotine for sale need obtain only one business license endorsement under this section 31 even if the person has vending machines in more than one outlet or location in the
01 state. The person who owns a vending machine that offers tobacco products, 02 electronic smoking products, or products containing nicotine for sale and the 03 person who owns the premises where the vending machine is located are both required 04 to obtain a business license endorsement issued under this section. If the endorsement 05 of the person owning the vending machine is suspended or revoked, the person may 06 not sell cigarettes, cigars, [OR OTHER] products containing tobacco, electronic 07 smoking products, or products containing nicotine during the period of suspension 08 or revocation through the use of vending machines at the location or outlet where the 09 violation occurred. During the period of suspension or revocation, the person owning 10 that vending machine may not use that machine to sell tobacco products, electronic 11 smoking products, or products containing nicotine at another location or outlet. 12 * Sec. 18. 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, [OR] 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, [OR] 11.76.107, or 11.76.109, did the person, or an agent or employee of 02 the 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, [OR] 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, [OR] 20 11.76.107, or 11.76.109 at a location or outlet in a location for which the 21 person holds a business license endorsement, or had an agent or employee 22 previously violate AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 23 this subparagraph does not apply to a prior conviction that served to enhance a 24 suspension period under (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 19 years of age 28 in violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109. 29 * Sec. 19. AS 43.70.075(r) is amended to read: 30 (r) For purposes of this section, the sale of a product containing tobacco, 31 electronic smoking product, or product containing nicotine by an agent or
01 employee of a person who holds or is required to hold a business license endorsement 02 under this section at the location or outlet in a location for which the endorsement was 03 or was required to be issued is rebuttably presumed to have been a sale within the 04 person's scope of agency or employment. 05 * Sec. 20. AS 43.70.075(t) is amended to read: 06 (t) Based on evidence provided at the hearing under (m)(4) - (6) of this 07 section, the department may reduce the license suspension period under (d) of this 08 section if the person holding the business license endorsement establishes that, before 09 the date of the violation, the person had 10 (1) adopted and enforced a written policy against selling cigarettes, 11 cigars, tobacco, [OR] products containing tobacco, electronic smoking products, or 12 products containing nicotine to a person under 19 years of age in violation of 13 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 14 (2) informed the person's agents and employees of the applicable laws 15 and their requirements and conducted training on complying with the laws and 16 requirements; 17 (3) required each agent and employee of the person to sign a form 18 stating that the agent and employee has been informed of and understands the written 19 policy and the requirements of AS 11.76.100, 11.76.106, [AND] 11.76.107, and 20 11.76.109; 21 (4) determined that the agents and employees of the person had 22 sufficient experience and ability to comply with the written policy and requirements of 23 AS 11.76.100, 11.76.106, [AND] 11.76.107, and 11.76.109; 24 (5) required the agents and employees of the person to verify the age 25 of purchasers of cigarettes, cigars, tobacco, [OR] other products containing tobacco, 26 electronic smoking products, or products containing nicotine by means of a valid 27 government issued photographic identification; 28 (6) established and enforced disciplinary sanctions for noncompliance 29 with the written policy or the requirements of AS 11.76.100, 11.76.106, [AND] 30 11.76.107, and 11.76.109; and 31 (7) monitored the compliance of the agents and employees of the
01 person with the written policy and the requirements of AS 11.76.100, 11.76.106, 02 [AND] 11.76.107, and 11.76.109. 03 * Sec. 21. AS 43.70.075(v) is amended to read: 04 (v) Notwithstanding (d) of this section, in place of a hearing under (m) of this 05 section, the department and the person holding the business license endorsement may 06 enter into a memorandum of agreement regarding the imposition of a suspension and 07 civil penalties based on a violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 08 11.76.109. The memorandum of agreement must contain a provision that the person 09 holding the business license endorsement admits or does not contest that a violation of 10 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 occurred and accepts the 11 imposition of suspension and civil penalty under this section. Based on the 12 memorandum of agreement, the department may reduce the period of suspension. For 13 violations involving AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, the 14 department may not reduce the period of suspension by more than 10 days under 15 (d)(1) of this section or by more than 20 days under (d)(2) of this section. The 16 department may not agree to a reduction in the period of suspension more than once in 17 a 12-month time period for a location or outlet in a location for which the person holds 18 a business license endorsement. 19 * Sec. 22. AS 43.70.075(w) is amended to read: 20 (w) For purposes of (m)(5) of this section, a conviction for a violation of 21 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 by the agent or employee of 22 the person who holds the business license endorsement is rebuttably presumed to 23 constitute proof of the fact that the agent or employee negligently sold a cigarette, a 24 cigar, or tobacco, [OR] a product containing tobacco, electronic smoking product, or 25 product containing nicotine to a person under 19 years of age. The person who holds 26 the business license endorsement may overcome the presumption by establishing by 27 clear and convincing evidence that the agent or employee did not negligently sell a 28 cigarette, a cigar, or tobacco, [OR] a product containing tobacco, electronic smoking 29 product, or product containing nicotine to a person under 19 years of age in 30 violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 as alleged in the 31 citation issued to the agent or employee. The presentation of evidence authorized by
01 this subsection does not constitute a collateral attack on the conviction described in 02 this subsection. 03 * Sec. 23. AS 43.70.075(x) is amended to read: 04 (x) Notwithstanding (d), (t), or (v) of this section, a period of suspension may 05 not be reduced for a violation of AS 11.76.100(a)(4) or 11.76.109(a)(4). 06 * Sec. 24. AS 43.70.105(b) is amended to read: 07 (b) Notwithstanding an exemption provided by (a) of this section, a person 08 who sells cigarettes, cigars, tobacco, [OR OTHER] products containing tobacco, 09 electronic smoking products, or products containing nicotine as a retailer must 10 have a business license under AS 43.70.020 and a business license endorsement 11 required under AS 43.70.075. 12 * Sec. 25. AS 43.70.110 is amended by adding new paragraphs to read: 13 (6) "electronic smoking product" has the meaning given in 14 AS 11.81.900(b); 15 (7) "product containing nicotine" does not include a cigarette, a cigar, 16 tobacco, or a product containing tobacco. 17 * Sec. 26. AS 44.29.092 is amended to read: 18 Sec. 44.29.092. Citation for certain offenses concerning tobacco, products 19 containing nicotine, or electronic smoking products. A peace officer or an agent or 20 employee of the Department of Health and Social Services who is authorized by the 21 commissioner of health and social services to enforce this section may issue a citation 22 for a violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 if there is 23 probable cause to believe a person has violated AS 11.76.100, 11.76.106, [OR] 24 11.76.107, or 11.76.109. 25 * Sec. 27. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 APPLICABILITY. AS 11.76.105, as amended by sec. 1 of this Act, AS 11.76.106(a), 28 as amended by sec. 3 of this Act, AS 11.76.106(b), as amended by sec. 4 of this Act, 29 AS 11.76.107(a), as amended by sec. 5 of this Act, AS 11.76.109(a), as amended by sec. 6 of 30 this Act, AS 11.76.109(b), as amended by sec. 7 of this Act, AS 11.76.109(e), as amended by 31 sec. 8 of this Act, and AS 11.76.109(f), added by sec. 9 of this Act, apply to offenses
01 committed on or after the effective date of this Act.