00 HOUSE CS FOR CS FOR SENATE BILL NO. 63(RLS) am H
01 "An Act prohibiting smoking in certain places; relating to education on the smoking
02 prohibition; relating to municipal regulation of smoking in certain places; relating to
03 established villages and local option elections to allow smoking in public places; and
04 providing for an effective date."
05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
06 * Section 1. The uncodified law of the State of Alaska is amended by adding a new section
07 to read:
08 LEGISLATIVE INTENT. It is the intent of the legislature that nothing in this Act is
09 intended to alter applicable law relating to liability of a manufacturer, dispenser, or other
10 person for a cause of action that may arise from smoking tobacco, e-cigarettes, or other oral
11 smoking devices in an enclosed area or to otherwise limit the state immunity from liability
12 provided for in state law. In this section, "e-cigarette," "enclosed area," and "smoking" have
13 the meanings given to those terms in AS 18.35.399.
14 * Sec. 2. AS 18.35 is amended by adding new sections to read:
01 Article 4. Prohibition of Smoking in Certain Places.
02 Sec. 18.35.301. Prohibition of smoking. (a) An individual may not smoke in
03 an enclosed area in a public place, including an enclosed area
04 (1) at an entertainment venue or a sports arena;
05 (2) on a bus, in a taxicab, on a ferry, or in another vehicle used for
06 public transportation;
07 (3) at a public transit depot, bus shelter, airport terminal, or other
08 public transportation facility;
09 (4) at a retail store or shopping center;
10 (5) at a place of government or public assembly located on property
11 that is owned or operated by the state, a municipality, or a regional educational
12 attendance area, or by an agent of the state, a municipality, or a regional educational
13 attendance area.
14 (b) An individual may not smoke in an enclosed area
15 (1) in an office building, office, hotel, motel, restaurant, bar, retail
16 store, or shopping center;
17 (2) in a common area in an apartment building or multiple-family
19 (3) in a place of employment, including a vehicle;
20 (4) at a public or private educational facility;
21 (5) at a health care facility, including residential units in the health care
23 (6) in a building or residence that is used to provide paid child care,
24 whether or not children are present in the building or residence, or care for adults on a
25 fee-for-service basis; however, nothing in this paragraph is intended to prohibit an
26 individual from smoking in a private residence that is in a building where another
27 residence provides paid child care or care for adults;
28 (7) on a vessel operating as a shore-based fisheries business under
29 AS 43.75.
30 (c) An individual may not smoke outdoors
31 (1) within 10 feet of playground equipment located at a public or
01 private school or a state or municipal park while children are present;
02 (2) in a seating area for an outdoor arena, stadium, or amphitheater;
03 (3) at a place of employment or health care facility that has declared
04 the entire campus or outside grounds or property to be smoke-free;
05 (4) within
06 (A) 10 feet of an entrance to a bar or restaurant that serves
07 alcoholic beverages;
08 (B) 20 feet of an entrance, open window, or heating or
09 ventilation system air intake vent at an enclosed area at a place where smoking
10 is prohibited under this section; or
11 (C) a reasonable distance, as determined by the owner or
12 operator, of an entrance, open window, or heating or ventilation system air
13 intake vent of
14 (i) a vessel covered by this section; or
15 (ii) a long-term care facility as defined in AS 47.62.090.
16 (d) Notwithstanding (a) and (b) of this section, unless the owner or operator
17 prohibits it, an individual may smoke at a retail tobacco or e-cigarette store that
18 (1) is in a building that
19 (A) is freestanding; or
20 (B) if it is attached to another business or building,
21 (i) has a separate entrance;
22 (ii) is separated from the other business or building in a
23 manner that does not allow e-cigarette vapor or aerosol to travel into
24 the other business or building;
25 (iii) the other business or building does not serve as a
26 residence, child care facility, facility providing care for adults on a fee-
27 for-service basis, school, or health care facility; and
28 (iv) smoking is limited to the use of an e-cigarette;
29 (2) is not
30 (A) a business that is licensed under AS 04.11 to serve
31 alcoholic beverages at an outdoor location;
01 (B) a business that is licensed under AS 05.15 to sell pull-tabs;
03 (C) a retail store that is within an indoor public place or
05 (e) Notwithstanding (a) and (b) of this section, smoking may be permitted in a
06 separate enclosed smoking area located in a terminal for international passengers who
07 are in transit in a state-owned and state-operated international airport and who are
08 restricted by federal law from leaving the airport, if the smoking area is vented directly
09 to an outdoor area that is not an area where smoking is prohibited under (c) of this
11 (f) Notwithstanding (b) of this section, unless the owner or operator prohibits
12 it, an individual may smoke
13 (1) in a vehicle that is a place of employment when the vehicle is used
14 exclusively by one person;
15 (2) on a vessel when the vessel is engaged in commercial fishing or
16 sport charter fishing.
17 (g) Notwithstanding (a) and (b) of this section, an individual may smoke at
18 (1) a private club if the private club
19 (A) has been in continuous operation at the same location since
20 January 1, 2017;
21 (B) is not licensed to serve alcoholic beverages; and
22 (C) is not a place of employment;
23 (2) an e-cigarette store if the e-cigarette store has been in continuous
24 operation at the same location since January 1, 2017.
25 (h) Nothing in this section prohibits an individual from smoking
26 (1) at a private residence, except a private residence described in (b) of
27 this section or while a health care provider is present;
28 (2) in a stand-alone shelter if the stand-alone shelter meets the
29 following requirements:
30 (A) food or drink may not be sold or served in the stand-alone
31 shelter; and
01 (B) the stand-alone shelter meets the minimum distance
02 requirements of (c) of this section; or
03 (3) in an establishment licensed under AS 17.38 that is freestanding if
04 the smoking is in accordance with regulations adopted by the Marijuana Control
05 Board created under AS 17.38.080.
06 (i) In this section,
07 (1) "freestanding" means a building that is not supported by another
08 structure and does not share ventilation or internal air space with an adjoining
09 structure and smoke from the building cannot travel into the adjoining structure;
10 (2) "health care provider" has the meaning given in AS 09.65.300;
11 (3) "private club" means an organization, legal entity, or informal
12 association of persons that
13 (A) is the owner, lessee, or occupant of a building or portion of
14 a building used exclusively for club purposes at all times;
15 (B) is operated solely for a recreational, fraternal, social,
16 patriotic, political, benevolent, or athletic purpose; and
17 (C) has been granted exemption from the payment of federal
18 income tax as a club under 26 U.S.C. 501;
19 (4) "retail tobacco" or e-cigarette store
20 (A) means a store
21 (i) that primarily sells cigarettes, e-cigarettes, cigars,
22 tobacco and products containing tobacco, and pipes and other smoking
23 or e-cigarette accessories;
24 (ii) in which the sale of other products is incidental; and
25 (iii) that derives at least 90 percent of its gross revenue
26 from the sale of cigarettes, e-cigarettes, cigars, tobacco and products
27 containing tobacco, and pipes and other smoking or e-cigarette
29 (B) does not include
30 (i) a tobacco or e-cigarette department or section of a
31 business that does not meet the criteria in (A) of this paragraph; or
01 (ii) a business that is also a restaurant or grocery store.
02 Sec. 18.35.306. Notice of prohibition. (a) A person who is in charge of a place
03 or vehicle where smoking is prohibited under AS 18.35.301 shall conspicuously
04 display in the place or vehicle a sign that
05 (1) reads "Smoking Prohibited by Law--Fine $50";
06 (2) includes the international symbol for no smoking; or
07 (3) includes the words "No Puffin" with a pictorial representation of a
08 puffin holding a burning cigarette enclosed in a red circle crossed with a red bar.
09 (b) A person in charge of a building at which smoking is prohibited within a
10 specific distance from the entrance of the building under AS 18.35.301(c)(4) shall
11 conspicuously display a sign that reads "Smoking within (number of feet) Feet of
12 Entrance Prohibited by Law--Fine $50" visible from the outside of each entrance to
13 the building.
14 (c) The department shall furnish signs required under this section to a person
15 who requests them with the intention of displaying them.
16 Sec. 18.35.311. Duty of employers and building managers. (a) An employer
17 may not permit an employee, customer, or other person to smoke inside an enclosed
18 area at a place of employment.
19 (b) The owner, operator, manager, or other person who manages a building or
20 other place where smoking is prohibited under AS 18.35.301 may not provide ashtrays
21 or other smoking accessories for use in that building or place.
22 (c) An employer may not require an employee, customer, or other person to
23 enter a stand-alone shelter as defined in AS 18.35.301(h) for a purpose other than
25 Sec. 18.35.316. Powers and duties of the commissioner. (a) The
27 (1) shall administer and enforce the requirements of AS 18.35.301 -
29 (2) may adopt regulations under AS 44.62 (Administrative Procedure
30 Act) necessary to carry out the duties under this section.
31 (b) In addition to other powers granted the commissioner under AS 18.35.301
01 - 18.35.399, the commissioner may delegate to another agency the authority to
02 implement and enforce one or more provisions of AS 18.35.301 - 18.35.399.
03 Sec. 18.35.321. Public education. (a) The commissioner shall ensure that
04 employers, property owners, property operators, and other members of the public are
05 provided ongoing access to
06 (1) a program of education regarding the requirements in AS 18.35.301
07 - 18.35.399;
08 (2) an electronically published printable brochure that summarizes the
09 requirements in AS 18.35.301 - 18.35.399.
10 (b) The program of education under (a) of this section may be provided in
11 combination with the comprehensive smoking education, tobacco use prevention, and
12 tobacco control program established in AS 44.29.020(a)(14).
13 Sec. 18.35.326. Nonretaliation. (a) An employer may not discharge or in any
14 other manner retaliate against an employee because the employee cooperates with or
15 initiates enforcement of a requirement in AS 18.35.301 - 18.35.399.
16 (b) The owner or operator of a vehicle or other place that is subject to a
17 requirement in AS 18.35.301 - 18.35.399 may not retaliate against a customer or other
18 member of the public for cooperating with or initiating enforcement of a requirement
19 in AS 18.35.301 - 18.35.399.
20 Sec. 18.35.331. Conflicts with local requirements. Nothing in AS 18.35.301
21 - 18.35.399 prohibits a municipality from adopting an ordinance imposing additional
22 (1) limitations on smoking;
23 (2) duties on employers, owners, operators, and other persons who are
24 subject to the requirements of AS 18.35.306 or 18.35.311 related to smoking; or
25 (3) limitations on smoking in an outdoor area at a municipal park
26 designated as a children's playground.
27 * Sec. 3. AS 18.35.340(a) is amended to read:
28 (a) The commissioner shall develop and maintain a procedure for processing
29 reports of violations of AS 18.35.301, 18.35.306, 18.35.311, and 18.35.326
30 [AS 18.35.300, 18.35.305, AND 18.35.330].
31 * Sec. 4. AS 18.35.340(b) is amended to read:
01 (b) If, after investigating a report made under this section, the commissioner
02 determines that a violation has occurred, (1) the commissioner may file a civil
03 complaint in the district court to enforce the provisions of AS 18.35.301 - 18.35.399
04 [AS 18.35.300 - 18.35.365]; or (2) an employee of the department designated by the
05 commissioner to enforce the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 -
06 18.35.365] may issue a citation under AS 18.35.341(b). If an employee of the
07 department issues a citation, the violation shall be processed and disposed of under
08 AS 18.35.341.
09 * Sec. 5. AS 18.35.340(c) is amended to read:
10 (c) A person who violates AS 18.35.301 [AS 18.35.300 OR 18.35.305] and
11 against whom the commissioner has filed a civil complaint under this section is
12 punishable by a civil fine of [NOT LESS THAN $10 NOR MORE THAN] $50. A
13 person who violates AS 18.35.306 or 18.35.311 [AS 18.35.330] and against whom the
14 commissioner has filed a civil complaint under this section is punishable by a civil
15 fine of not less than $50 [$20] nor more than $300. Each day a violation of
16 AS 18.35.306 or 18.35.311 [AS 18.35.330] continues after a civil complaint for the
17 violation has been filed and served on the defendant constitutes a separate violation.
18 A person who violates AS 18.35.326 and against whom the commissioner has filed
19 a civil complaint under this section is punishable by a civil fine of not more than
21 * Sec. 6. AS 18.35.341(a) is amended to read:
22 (a) A peace officer may issue a citation for a violation of AS 18.35.301,
23 18.35.311, or 18.35.326 [AS 18.35.300 OR 18.35.305] committed in the officer's
24 presence or for a violation of AS 18.35.306 [AS 18.35.330]. The provisions of
25 AS 12.25.175 - 12.25.230 apply to the issuance of a citation under this subsection.
26 * Sec. 7. AS 18.35.341(b) is amended to read:
27 (b) An employee of the department designated by the commissioner to enforce
28 the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 - 18.35.365] may issue a
29 citation for a violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326
30 [AS 18.35.300, 18.35.305, OR 18.35.330] regardless of whether the violation was
31 committed in the employee's presence. A citation issued under this subsection shall be
01 in the same form and shall be processed in the same manner as a citation issued by a
02 peace officer under (a) of this section. An employee of the department may not arrest
03 a person for a violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326
04 [AS 18.35.300, 18.35.305, OR 18.35.330].
05 * Sec. 8. AS 18.35.341(c) is amended to read:
06 (c) A person who violates AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326
07 [AS 18.35.300, 18.35.305, OR 18.35.330] is guilty of a violation as defined in
08 AS 11.81.900(b) and upon conviction is punishable by a fine of [NOT LESS THAN
09 $10 NOR MORE THAN] $50 for a violation of AS 18.35.301, [AS 18.35.300 OR
10 18.35.305 AND] by a fine of not less than $50 [$20] nor more than $300 for a
11 violation of AS 18.35.306 or 18.35.311, and by a fine of not more than $500 for a
12 violation of AS 18.35.326 [AS 18.35.330]. Each day a violation of AS 18.35.306 and
13 18.35.311 [AS 18.35.330] continues after a citation for the violation has been issued
14 constitutes a separate violation.
15 * Sec. 9. AS 18.35.341(d) is amended to read:
16 (d) The supreme court shall establish a schedule of bail amounts for violations
17 of AS 18.35.301, 18.35.306, 18.35.311, and 18.35.326 [AS 18.35.300, 18.35.305,
18 AND 18.35.330], but in no event may the bail amount exceed the maximum fine that
19 may be imposed for the violation under (c) of this section. The bail amount for a
20 violation must appear on the citation.
21 * Sec. 10. AS 18.35.342 is amended to read:
22 Sec. 18.35.342. Multiple fines prohibited. A person may not be fined more
23 than once for each violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326
24 [AS 18.35.300, 18.35.305, OR 18.35.330].
25 * Sec. 11. AS 18.35.343 is amended to read:
26 Sec. 18.35.343. Injunctions. The commissioner or any affected party may
27 institute an action in the superior court to enjoin repeated violations of AS 18.35.301,
28 18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, or 18.35.330].
29 * Sec. 12. AS 18.35.350 is amended to read:
30 Sec. 18.35.350. Enforcement authority. The commissioner or the
31 commissioner's designee is responsible for enforcing the provisions of AS 18.35.301 -
01 18.35.399 [AS 18.35.300 - 18.35.365]. This section does not limit the authority of
02 peace officers.
03 * Sec. 13. AS 18.35 is amended by adding new sections to read:
04 Sec. 18.35.357. Municipal regulation. A municipality may, by ordinance
05 ratified by voters in a regular municipal election, exempt the municipality from the
06 provisions of AS 18.35.301 - 18.35.350. Unless the municipality has adopted an
07 ordinance banning smoking in certain public places, if a municipality exempts itself
08 from the provisions of AS 18.35.301 - 18.35.350, former AS 18.35.300 - 18.35.365
09 apply in the municipality as those statutes provided on September 30, 2018.
10 Sec. 18.35.359. Local option election by an established village. (a) If a
11 majority of the voters voting on the question vote to approve the option, AS 18.35.301
12 - 18.35.350 do not apply within the boundaries of the established village and former
13 AS 18.35.300 - 18.35.365 apply in the village as those statutes provided on
14 September 30, 2018.
15 (b) A ballot question to adopt a local option under this section must at least
16 contain language substantially similar to the following: "Shall (name of village) adopt
17 a local option not to comply with AS 18.35.301 - 18.35.350, relating to smoking in
18 certain public places? (yes or no)."
19 (c) If a majority of the voters voting on the question vote to remove the option,
20 an established village shall remove a local option previously adopted under (a) of this
21 section. The option is repealed effective the first day of the month following
22 certification of the results of the election.
23 (d) A ballot question to remove a local option under (c) of this section must at
24 least contain language substantially similar to the following: "Shall (name of village)
25 remove the local option currently in effect, that permits smoking in certain public
26 places, so that there is no longer any local option in effect? (yes or no)."
27 (e) An election to adopt a local option under (a) of this section or remove a
28 local option under (c) of this section shall be conducted as required in this section.
29 (f) Upon receiving a petition of 35 percent or more of the registered voters
30 residing within an established village, the lieutenant governor shall place on a separate
31 ballot at a special election the local option or removal of local option that constitutes
01 the subject of the petition. The lieutenant governor shall conduct the election under
02 AS 15.
03 (g) An election under (f) of this section to remove a local option may not be
04 conducted during the first 24 months after the local option was adopted or more than
05 once in a 36-month period.
06 (h) After a petition has been certified as sufficient to meet the requirements of
07 (f) of this section, another petition may not be filed or certified until after the question
08 presented in the first petition has been voted on.
09 (i) Except as provided under (j) and (k) of this section, for purposes of this
10 section, the perimeter of an established village is a circle around the established
11 village that includes an area within a five-mile radius of the post office of the
12 established village. If the established village does not have a post office, the perimeter
13 of an established village is a circle around the established village that includes an area
14 within a five-mile radius of another site selected by the local governing body or by the
15 department if the established village does not have a local governing body.
16 (j) If the perimeter of an established village determined under (i) of this
17 section includes an area that is within the perimeter of another established village, and
18 the other established village has not adopted a local option under (a) of this section,
19 the local option does not apply in the overlapping area.
20 (k) If the department determines that the perimeter of an established village
21 determined under (i) of this section does not accurately reflect the perimeter of the
22 established village, the department may establish the perimeter of the established
23 village and the overlapping areas described under (j) of this section for purposes of
24 applying a local option selected under this section.
25 (l) If a majority of the voters vote to adopt a local option under (a) of this
26 section or remove a local option under (c) of this section, the lieutenant governor shall
27 notify the department of the results of the election immediately after the results are
28 certified. The department shall immediately notify the Department of Law and the
29 Department of Public Safety of the results of the election.
30 * Sec. 14. AS 18.35 is amended by adding a new section to read:
31 Sec. 18.35.399. Definitions. In AS 18.35.301 - 18.35.399,
01 (1) "business" means a for-profit or nonprofit sole proprietorship,
02 partnership, joint venture, corporation, professional corporation, private club, retail
03 seller of goods or services, or other business entity;
04 (2) "commissioner" means the commissioner of health and social
05 services or the commissioner's designee;
06 (3) "department" means the Department of Health and Social Services;
07 (4) "e-cigarette" means any product containing or delivering nicotine
08 or any other substance intended for human consumption that can be used by a person
09 through inhalation of vapor or aerosol from the product, of any size or shape, whether
10 the product is manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-
11 pipe, e-hookah, vape pen, or any other product name or descriptor; "e-cigarette" does
12 not include drugs, devices, or combination products authorized for sale by the United
13 States Food and Drug Administration as those terms are defined in 21 U.S.C. 301 -
14 392 (Food, Drug, and Cosmetic Act), unless the use of those products simulate
15 smoking or expose others to vapor or aerosol;
16 (5) "employee" means a person who is employed by a business for
17 compensation or works for a business as a volunteer without compensation;
18 (6) "employer" means the state, a municipality, a regional educational
19 attendance area, and a person or a business with one or more employees;
20 (7) "enclosed area" means space between a floor and a ceiling that is
21 bounded on two or more sides by a combination of walls, doorways, windows, or
22 other physical barriers that may be open, partially open, closed, retractable, temporary,
23 or permanent;
24 (8) "established village" means an area that does not contain any part
25 of an incorporated city or another established village, that is an unincorporated
26 community in the unorganized borough, and that has 25 or more permanent residents;
27 (9) "health care facility" means an office or institution providing care
28 or treatment for physical, mental, emotional, or other medical, dental, physiological, or
29 psychological diseases or conditions; private, municipal, or state hospital; independent
30 diagnostic testing facility; primary care outpatient facility; skilled nursing facility;
31 kidney disease treatment center, including freestanding hemodialysis units;
01 intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or
02 Alaska Veterans' Home administered by the department under AS 47.55; long-term
03 care facility; psychiatric hospital; residential psychiatric treatment center, as defined in
04 AS 18.07.111 or AS 47.32.900, and other facilities, places of employment, or offices
05 operated for use by doctors, nurses, surgeons, chiropractors, physical therapists,
06 physicians, psychiatrists, or dentists or other professional health care providers to
07 provide health care;
08 (10) "place of employment" means work areas, private offices, hotel
09 and motel rooms, employee lounges, restrooms, conference rooms, classrooms,
10 cafeterias, hallways, vehicles, and other employee work areas that are under the
11 control of an employer;
12 (11) "public place" includes
13 (A) an area to which the public is invited or into which the
14 public is admitted;
15 (B) a place where services, goods, or facilities are offered to
16 the public;
17 (12) "smoking" means using an e-cigarette or other oral smoking
18 device or inhaling, exhaling, burning, or carrying a lighted or heated cigar, cigarette,
19 pipe, or tobacco or plant product intended for inhalation.
20 * Sec. 15. AS 18.35.300, 18.35.305, 18.35.310, 18.35.320, 18.35.330, 18.35.355, and
21 18.35.365 are repealed.
22 * Sec. 16. The uncodified law of the State of Alaska is amended by adding a new section to
24 APPLICABILITY. AS 18.35.301, 18.35.306, 18.35.311, 18.35.316, 18.35.321,
25 18.35.326, and 18.35.331, added by sec. 2 of this Act, AS 18.35.340(a) - (c), as amended by
26 secs. 3 - 5 of this Act, AS 18.35.341(a) - (d), as amended by secs. 6 - 9 of this Act,
27 AS 18.35.342, as amended by sec. 10 of this Act, AS 18.35.343, as amended by sec. 11 of this
28 Act, AS 18.35.350, as amended by sec. 12 of this Act, and AS 18.35.399, added by sec. 14 of
29 this Act, apply to violations or failures to comply that occur on or after the effective date of
30 secs. 2 - 12 and 14 of this Act.
31 * Sec. 17. The uncodified law of the State of Alaska is amended by adding a new section to
02 TRANSITION: REGULATIONS. The Department of Health and Social Services may
03 adopt regulations necessary to implement AS 18.35.301, 18.35.306, 18.35.311, 18.35.316,
04 18.35.321, 18.35.326, and 18.35.331, added by sec. 2 of this Act, AS 18.35.340(a) - (c), as
05 amended by secs. 3 - 5 of this Act, AS 18.35.341(a) - (d), as amended by secs. 6 - 9 of this
06 Act, AS 18.35.342, as amended by sec. 10 of this Act, AS 18.35.343, as amended by sec. 11
07 of this Act, AS 18.35.350, as amended by sec. 12 of this Act, AS 18.35.357 and 18.35.359,
08 added by sec. 13 of this Act, and AS 18.35.399, added by sec. 14 of this Act. The regulations
09 take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date
10 of the section being implemented.
11 * Sec. 18. Section 17 of this Act takes effect immediately under AS 01.10.070(c).
12 * Sec. 19. Except as provided in sec. 18 of this Act, this Act takes effect October 1, 2018.