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CSSB 63(FIN): "An Act prohibiting smoking in certain places; relating to education on the smoking prohibition; and providing for an effective date."

00                       CS FOR SENATE BILL NO. 63(FIN)                                                                    
01 "An Act prohibiting smoking in certain places; relating to education on the smoking                                     
02 prohibition; and providing for an effective date."                                                                      
03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
04    * Section 1. The uncodified law of the State of Alaska is amended by adding a new section                          
05 to read:                                                                                                                
06 LEGISLATIVE INTENT. It is the intent of the legislature that nothing in this Act is                                     
07 intended to alter applicable law relating to liability of a manufacturer, dispenser, or other                           
08 person for a cause of action that may arise from smoking tobacco, e-cigarettes, or other oral                           
09 smoking devices in an enclosed area or to otherwise limit the state immunity from liability                             
10 provided for in state law. In this section, "e-cigarette," "enclosed area," and "smoking" have                          
11 the meanings given to those terms in AS 18.35.399.                                                                    
12    * Sec. 2. AS 18.35 is amended by adding new sections to read:                                                      
13               Article 4. Prohibition of Smoking in Certain Places.                                                    
14            Sec. 18.35.301. Prohibition of smoking. (a) An individual may not smoke in                                 
01       an enclosed area in a public place, including an enclosed area                                                    
02                 (1)  at an entertainment venue or a sports arena;                                                       
03                 (2)  on a bus, in a taxicab, on a ferry, or in another vehicle used for                                 
04       public transportation;                                                                                            
05                 (3)  at a public transit depot, bus shelter, airport terminal, or other                                 
06       public transportation facility;                                                                                   
07                 (4)  at a retail store or shopping center;                                                              
08                 (5)  at a place of government or public assembly located on property                                    
09       that is owned or operated by the state, a municipality, or a regional educational                                 
10 attendance area, or by an agent of the state, a municipality, or a regional educational                                 
11       attendance area.                                                                                                  
12            (b)  An individual may not smoke in an enclosed area                                                         
13 (1)  in an office building, office, hotel, motel, restaurant, bar, retail                                               
14       store, or shopping center;                                                                                        
15 (2)  in a common area in an apartment building or multiple-family                                                       
16       dwelling;                                                                                                         
17                 (3)  in a place of employment, including a vehicle;                                                     
18                 (4)  at a public or private educational facility;                                                       
19 (5)  at a health care facility, including residential units in the health care                                          
20       facility;                                                                                                         
21 (6)  in a building or residence that is used to provide paid child care,                                                
22 whether or not children are present in the building or residence, or care for adults on a                               
23 fee-for-service basis; however, nothing in this paragraph is intended to prohibit an                                    
24 individual from smoking in a private residence that is in a building where another                                      
25       residence provides paid child care or care for adults;                                                            
26 (7)  on a vessel operating as a shore-based fisheries business under                                                    
27       AS 43.75.                                                                                                         
28            (c)  An individual may not smoke outdoors                                                                    
29 (1)  at an area located at a public or private school or a state or                                                     
30       municipal park area designated as a children's playground;                                                        
31                 (2)  in a seating area for an outdoor arena, stadium, or amphitheater;                                  
01                 (3)  at a place of employment or health care facility that has declared                                 
02       the entire campus or outside grounds or property to be smoke-free;                                                
03                 (4)  within                                                                                             
04                      (A)  10 feet of an entrance to a bar or restaurant that serves                                     
05            alcoholic beverages;                                                                                         
06                      (B)  20 feet of an entrance, open window, or heating or                                            
07            ventilation system air intake vent at an enclosed area at a place where smoking                              
08            is prohibited under this section; or                                                                         
09                      (C)  a reasonable distance of an entrance, open window, or                                         
10 heating or ventilation system air intake vent on a vessel covered by this section                                       
11            as determined by the vessel owner or operator in charge.                                                     
12 (d)  Notwithstanding (a) and (b) of this section, unless the owner or operator                                          
13       prohibits it, an individual may smoke at a retail tobacco or e-cigarette store that                               
14                 (1)  is in a building that                                                                              
15                      (A)  is freestanding; or                                                                           
16                      (B)  if it is attached to another business or building,                                            
17                           (i)  has a separate entrance;                                                                 
18 (ii)  has a ventilation system vented to an area where                                                                  
19                 smoking is not prohibited;                                                                              
20 (iii)  the other business or building does not serve as a                                                               
21 residence, child care facility, facility providing care for adults on a fee-                                            
22                 for-service basis, school, or health care facility; and                                                 
23                           (iv)  smoking is limited to the use of an e-cigarette;                                        
24                 (2)  is not                                                                                             
25 (A)  a business that is licensed under AS 04.11 to serve                                                                
26            alcoholic beverages at an outdoor location;                                                                  
27 (B)  a business that is licensed under AS 05.15 to sell pull-tabs;                                                      
28            or                                                                                                           
29 (C)  a retail store that is within an indoor public place or                                                            
30            workplace.                                                                                                   
31 (e)  Notwithstanding (a) and (b) of this section, an individual may smoke in a                                          
01       separate enclosed smoking area located in an airport if the smoking area is vented                                
02       directly to an outdoor area that is not an area where smoking is prohibited under (c) of                          
03       this section.                                                                                                     
04            (f)  Notwithstanding (b) of this section, unless the owner or operator prohibits                             
05       it, an individual may smoke                                                                                       
06                 (1)  in a vehicle that is a place of employment when the vehicle is used                                
07       exclusively by one person;                                                                                        
08                 (2)  on a vessel when the vessel is engaged in commercial fishing or                                    
09       sport charter fishing.                                                                                            
10            (g)  Notwithstanding (a) and (b) of this section, an individual may smoke at                                 
11                 (1)  a private club if the private club                                                                 
12 (A)  has been in continuous operation at the same location since                                                        
13            January 1, 2017;                                                                                             
14                      (B)  is not licensed to serve alcoholic beverages; and                                             
15                      (C)  is not a place of employment;                                                                 
16 (2)  an e-cigarette store if the e-cigarette store has been in continuous                                               
17       operation at the same location since January 1, 2017.                                                             
18            (h)  Nothing in this section prohibits an individual from smoking                                            
19 (1)  at a private residence, except a private residence described in (b) of                                             
20       this section or while a health care provider is present;                                                          
21 (2)  in a stand-alone shelter if the stand-alone shelter meets the                                                      
22       following requirements:                                                                                           
23 (A)  food or drink may not be sold or served in the stand-alone                                                         
24            shelter; and                                                                                                 
25 (B)  the stand-alone shelter meets the minimum distance                                                                 
26            requirements of (c) of this section; or                                                                      
27 (3)  in an establishment licensed under AS 17.38 that is a freestanding                                                 
28       building.                                                                                                         
29            (i)  In this section,                                                                                        
30                 (1)  "health care provider" has the meaning given in AS 09.65.300;                                      
31 (2)  "private club" means an organization, legal entity, or informal                                                    
01       association of persons that                                                                                       
02                      (A)  is the owner, lessee, or occupant of a building or portion of                                 
03            a building used exclusively for club purposes at all times;                                                  
04                      (B)  is operated solely for a recreational, fraternal, social,                                     
05            patriotic, political, benevolent, or athletic purpose; and                                                   
06                      (C)  has been granted exemption from the payment of federal                                        
07            income tax as a club under 26 U.S.C. 501;                                                                    
08                 (3)  "retail tobacco or e-cigarette store"                                                              
09                      (A)  means a store                                                                                 
10 (i)  that primarily sells cigarettes, e-cigarettes, cigars,                                                             
11 tobacco and products containing tobacco, and pipes and other smoking                                                    
12                 or e-cigarette accessories;                                                                             
13                           (ii)  in which the sale of other products is incidental; and                                  
14 (iii)  that derives at least 90 percent of its gross revenue                                                            
15 from the sale of cigarettes, e-cigarettes, cigars, tobacco and products                                                 
16 containing tobacco, and pipes and other smoking or e-cigarette                                                          
17                 accessories;                                                                                            
18                      (B)  does not include                                                                              
19 (i)  a tobacco or e-cigarette department or section of a                                                                
20                 business that does not meet the criteria in (A) of this paragraph; or                                   
21                           (ii)  a business that is also a restaurant or grocery store.                                  
22 Sec. 18.35.306. Notice of prohibition. (a) A person who is in charge of a place                                       
23 or vehicle where smoking is prohibited under AS 18.35.301 shall conspicuously                                           
24       display in the place or vehicle a sign that                                                                       
25                 (1)  reads "Smoking Prohibited by Law--Fine $50";                                                       
26                 (2)  includes the international symbol for no smoking; or                                               
27 (3)  includes the words "No Puffin" with a pictorial representation of a                                                
28       puffin holding a burning cigarette enclosed in a red circle crossed with a red bar.                               
29 (b)  A person in charge of a building at which smoking is prohibited within a                                           
30 specific distance from the entrance of the building under AS 18.35.301(c)(4) shall                                      
31 conspicuously display a sign that reads "Smoking within (number of feet) Feet of                                        
01       Entrance Prohibited by Law--Fine $50" visible from the outside of each entrance to                                
02       the building.                                                                                                     
03            (c)  The department shall furnish signs required under this section to a person                              
04       who requests them with the intention of displaying them.                                                          
05            Sec. 18.35.311. Duty of employers and building managers. (a) An employer                                 
06       may not permit an employee, customer, or other person to smoke inside an enclosed                                 
07       area at a place of employment.                                                                                    
08            (b)  The owner, operator, manager, or other person who manages a building or                                 
09       other place where smoking is prohibited under AS 18.35.301 may not provide ashtrays                               
10       or other smoking accessories for use in that building or place.                                                   
11 (c)  An employer may not require an employee, customer, or other person to                                              
12 enter a stand-alone shelter as defined in AS 18.35.301(h) for a purpose other than                                      
13       smoking.                                                                                                          
14 Sec. 18.35.316. Powers and duties of the commissioner. (a) The                                                        
15       commissioner                                                                                                      
16 (1)  shall administer and enforce the requirements of AS 18.35.301 -                                                    
17       18.35.399;                                                                                                        
18 (2)  may adopt regulations under AS 44.62 (Administrative Procedure                                                     
19       Act) necessary to carry out the duties under this section.                                                        
20 (b)  In addition to other powers granted the commissioner under AS 18.35.301                                            
21 - 18.35.399, the commissioner may delegate to another agency the authority to                                           
22       implement and enforce one or more provisions of AS 18.35.301 - 18.35.399.                                         
23 Sec. 18.35.321. Public education. (a) The commissioner shall ensure that                                            
24 employers, property owners, property operators, and other members of the public are                                     
25       provided ongoing access to                                                                                        
26 (1)  a program of education regarding the requirements in AS 18.35.301                                                  
27       - 18.35.399;                                                                                                      
28 (2)  an electronically published printable brochure that summarizes the                                                 
29       requirements in AS 18.35.301 - 18.35.399.                                                                         
30 (b)  The program of education under (a) of this section may be provided in                                              
31 combination with the comprehensive smoking education, tobacco use prevention, and                                       
01       tobacco control program established in AS 44.29.020(a)(14).                                                       
02            Sec. 18.35.326. Nonretaliation. (a) An employer may not discharge or in any                                
03       other manner retaliate against an employee because the employee cooperates with or                                
04       initiates enforcement of a requirement in AS 18.35.301 - 18.35.399.                                               
05 (b)  The owner or operator of a vehicle or other place that is subject to a                                             
06 requirement in AS 18.35.301 - 18.35.399 may not retaliate against a customer or other                                   
07 member of the public for cooperating with or initiating enforcement of a requirement                                    
08       in AS 18.35.301 - 18.35.399.                                                                                      
09            Sec. 18.35.331. Conflicts with local requirements. Nothing in AS 18.35.301                                 
10       - 18.35.399 prohibits a municipality from adopting an ordinance imposing                                          
11                 (1)  additional limitations on smoking; or                                                              
12 (2)  additional duties on employers, owners, operators, and other                                                       
13 persons who are subject to the requirements of AS 18.35.306 or 18.35.311 related to                                     
14       smoking.                                                                                                          
15    * Sec. 3. AS 18.35.340(a) is amended to read:                                                                      
16 (a)  The commissioner shall develop and maintain a procedure for processing                                             
17 reports of violations of AS 18.35.301, 18.35.306, 18.35.311, and 18.35.326                                          
18       [AS 18.35.300, 18.35.305, AND 18.35.330].                                                                         
19    * Sec. 4. AS 18.35.340(b) is amended to read:                                                                      
20 (b)  If, after investigating a report made under this section, the commissioner                                         
21 determines that a violation has occurred, (1) the commissioner may file a civil                                         
22 complaint in the district court to enforce the provisions of AS 18.35.301 - 18.35.399                               
23 [AS 18.35.300 - 18.35.365]; or (2) an employee of the department designated by the                                      
24 commissioner to enforce the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 -                                  
25 18.35.365] may issue a citation under AS 18.35.341(b). If an employee of the                                            
26 department issues a citation, the violation shall be processed and disposed of under                                    
27       AS 18.35.341.                                                                                                     
28    * Sec. 5. AS 18.35.340(c) is amended to read:                                                                      
29 (c)  A person who violates AS 18.35.301 [AS 18.35.300 OR 18.35.305] and                                             
30 against whom the commissioner has filed a civil complaint under this section is                                         
31 punishable by a civil fine of [NOT LESS THAN $10 NOR MORE THAN] $50. A                                                  
01 person who violates AS 18.35.306 or 18.35.311 [AS 18.35.330] and against whom the                                   
02 commissioner has filed a civil complaint under this section is punishable by a civil                                    
03 fine of not less than $50 [$20] nor more than $300. Each day a violation of                                         
04 AS 18.35.306 or 18.35.311 [AS 18.35.330] continues after a civil complaint for the                                  
05 violation has been filed and served on the defendant constitutes a separate violation. A                            
06 person who violates AS 18.35.326 and against whom the commissioner has filed a                                      
07 civil complaint under this section is punishable by a civil fine of not more than                                   
08       $500.                                                                                                         
09    * Sec. 6. AS 18.35.341(a) is amended to read:                                                                      
10 (a)  A peace officer may issue a citation for a violation of AS 18.35.301,                                          
11 18.35.311, or 18.35.326 [AS 18.35.300 OR 18.35.305] committed in the officer's                                      
12 presence or for a violation of AS 18.35.306 [AS 18.35.330]. The provisions of                                       
13       AS 12.25.175 - 12.25.230 apply to the issuance of a citation under this subsection.                               
14    * Sec. 7. AS 18.35.341(b) is amended to read:                                                                      
15 (b)  An employee of the department designated by the commissioner to enforce                                            
16 the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 - 18.35.365] may issue a                                   
17 citation for a violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326                                        
18 [AS 18.35.300, 18.35.305, OR 18.35.330] regardless of whether the violation was                                         
19 committed in the employee's presence. A citation issued under this subsection shall be                                  
20 in the same form and shall be processed in the same manner as a citation issued by a                                    
21 peace officer under (a) of this section. An employee of the department may not arrest a                                 
22 person for a violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326                                          
23       [AS 18.35.300, 18.35.305, OR 18.35.330].                                                                          
24    * Sec. 8. AS 18.35.341(c) is amended to read:                                                                      
25 (c)  A person who violates AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326                                         
26 [AS 18.35.300, 18.35.305, OR 18.35.330] is guilty of a violation as defined in                                          
27 AS 11.81.900(b) and upon conviction is punishable by a fine of [NOT LESS THAN                                           
28 $10 NOR MORE THAN] $50 for a violation of AS 18.35.301, [AS 18.35.300 OR                                            
29 18.35.305 AND] by a fine of not less than $50 [$20] nor more than $300 for a                                        
30 violation of AS 18.35.306 or 18.35.311, and by a fine of not more than $500 for a                                   
31 violation of AS 18.35.326 [AS 18.35.330]. Each day a violation of AS 18.35.306 and                              
01       18.35.311 [AS 18.35.330] continues after a citation for the violation has been issued                         
02       constitutes a separate violation.                                                                                 
03    * Sec. 9. AS 18.35.341(d) is amended to read:                                                                      
04 (d)  The supreme court shall establish a schedule of bail amounts for violations                                        
05 of AS 18.35.301, 18.35.306, 18.35.311, and 18.35.326 [AS 18.35.300, 18.35.305,                                      
06 AND 18.35.330], but in no event may the bail amount exceed the maximum fine that                                        
07 may be imposed for the violation under (c) of this section. The bail amount for a                                       
08       violation must appear on the citation.                                                                            
09    * Sec. 10. AS 18.35.342 is amended to read:                                                                        
10 Sec. 18.35.342. Multiple fines prohibited. A person may not be fined more                                             
11 than once for each violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326                                    
12       [AS 18.35.300, 18.35.305, OR 18.35.330].                                                                          
13    * Sec. 11. AS 18.35.343 is amended to read:                                                                      
14 Sec. 18.35.343. Injunctions. The commissioner or any affected party may                                               
15 institute an action in the superior court to enjoin repeated violations of AS 18.35.301,                            
16       18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, or 18.35.330].                                   
17    * Sec. 12. AS 18.35.350 is amended to read:                                                                        
18 Sec. 18.35.350. Enforcement authority. The commissioner or the                                                        
19 commissioner's designee is responsible for enforcing the provisions of AS 18.35.301 -                               
20 18.35.399 [AS 18.35.300 - 18.35.365]. This section does not limit the authority of                                  
21       peace officers.                                                                                                   
22    * Sec. 13. AS 18.35 is amended by adding a new section to read:                                                    
23            Sec. 18.35.399. Definitions. In AS 18.35.301 - 18.35.399,                                                  
24 (1)  "business" means a for-profit or nonprofit sole proprietorship,                                                    
25 partnership, joint venture, corporation, professional corporation, private club, retail                                 
26       seller of goods or services, or other business entity;                                                            
27 (2)  "commissioner" means the commissioner of health and social                                                         
28       services or the commissioner's designee;                                                                          
29                 (3)  "department" means the Department of Health and Social Services;                                   
30 (4)  "e-cigarette" means any product containing or delivering nicotine                                                  
31 or any other substance intended for human consumption that can be used by a person                                      
01 through inhalation of vapor or aerosol from the product, of any size or shape, whether                                  
02 the product is manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-                              
03 pipe, e-hookah, vape pen, or any other product name or descriptor; "e-cigarette" does                                   
04 not include drugs, devices, or combination products authorized for sale by the United                                   
05 States Food and Drug Administration as those terms are defined in 21 U.S.C. 301 -                                       
06 392 (Food, Drug, and Cosmetic Act), unless the use of those products simulate                                           
07       smoking or expose others to vapor or aerosol;                                                                     
08                 (5)  "employee" means a person who is employed by a business for                                        
09       compensation or works for a business as a volunteer without compensation;                                         
10 (6)  "employer" means the state, a municipality, a regional educational                                                 
11       attendance area, and a person or a business with one or more employees;                                           
12 (7)  "enclosed area" means space between a floor and a ceiling that is                                                  
13 bounded on two or more sides by a combination of walls, doorways, windows, or                                           
14 other physical barriers that may be open, partially open, closed, retractable, temporary,                               
15       or permanent;                                                                                                     
16 (8)  "health care facility" means an office or institution providing care                                               
17 or treatment for physical, mental, emotional, or other medical, dental, physiological, or                               
18 psychological diseases or conditions; private, municipal, or state hospital; independent                                
19 diagnostic testing facility; primary care outpatient facility; skilled nursing facility;                                
20 kidney disease treatment center, including freestanding hemodialysis units;                                             
21 intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or                                      
22 Alaska Veterans' Home administered by the department under AS 47.55; long-term                                          
23 care facility; psychiatric hospital; residential psychiatric treatment center, as defined in                            
24 AS 18.07.111 or AS 47.32.900, and other facilities, places of employment, or offices                                    
25 operated for use by doctors, nurses, surgeons, chiropractors, physical therapists,                                      
26 physicians, psychiatrists, or dentists or other professional health care providers to                                   
27       provide health care;                                                                                              
28 (9)  "place of employment" means work areas, private offices, hotel and                                                 
29 motel rooms, employee lounges, restrooms, conference rooms, classrooms, cafeterias,                                     
30 hallways, vehicles, and other employee work areas that are under the control of an                                      
31       employer;                                                                                                         
01                 (10)  "public place" includes                                                                           
02                      (A)  an area to which the public is invited or into which the                                      
03            public is admitted;                                                                                          
04                      (B)  a place where services, goods, or facilities are offered to                                   
05            the public;                                                                                                  
06                 (11)  "smoking" means using an e-cigarette or other oral smoking                                        
07       device or inhaling, exhaling, burning, or carrying a lighted or heated cigar, cigarette,                          
08       pipe, or tobacco or plant product intended for inhalation.                                                      
09    * Sec. 14. AS 18.35.300, 18.35.305, 18.35.310, 18.35.320, 18.35.330, 18.35.355, and                                
10 18.35.365 are repealed.                                                                                                 
11    * Sec. 15. The uncodified law of the State of Alaska is amended by adding a new section to                         
12 read:                                                                                                                   
13 APPLICABILITY. AS 18.35.301, 18.35.306, 18.35.311, 18.35.316, 18.35.321,                                                
14 18.35.326, and 18.35.331, added by sec. 2 of this Act, AS 18.35.340(a) - (c), as amended by                             
15 secs. 3 - 5 of this Act, AS 18.35.341(a) - (d), as amended by secs. 6 - 9 of this Act,                                  
16 AS 18.35.342, as amended by sec. 10 of this Act, AS 18.35.343, as amended by sec. 11 of this                            
17 Act, AS 18.35.350, as amended by sec. 12 of this Act, and AS 18.35.399, added by sec. 13 of                             
18 this Act, apply to violations or failures to comply that occur on or after the effective date of                        
19 secs. 2 - 13 of this Act.                                                                                               
20    * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to                         
21 read:                                                                                                                   
22 TRANSITION: REGULATIONS. The Department of Health and Social Services may                                               
23 adopt regulations necessary to implement AS 18.35.301, 18.35.306, 18.35.311, 18.35.316,                                 
24 18.35.321, 18.35.326, and 18.35.331, added by sec. 2 of this Act, AS 18.35.340(a) - (c), as                             
25 amended by secs. 3 - 5 of this Act, AS 18.35.341(a) - (d), as amended by secs. 6 - 9 of this                            
26 Act, AS 18.35.342, as amended by sec. 10 of this Act, AS 18.35.343, as amended by sec. 11                               
27 of this Act, AS 18.35.350, as amended by sec. 12 of this Act, and AS 18.35.399, added by                                
28 sec. 13 of this Act. The regulations take effect under AS 44.62 (Administrative Procedure                               
29 Act), but not before the effective date of the section being implemented.                                               
30    * Sec. 17. Section 16 of this Act takes effect immediately under AS 01.10.070(c).                                  
31    * Sec. 18. Except as provided in sec. 17 of this Act, this Act takes effect October 1, 2017.