HCS CSSB 63(RLS) am H: "An Act prohibiting smoking in certain places; relating to education on the smoking prohibition; relating to municipal regulation of smoking in certain places; relating to established villages and local option elections to allow smoking in public places; and providing for an effective date."
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 18 dwelling; 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 22 facility; 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; 02 or 03 (C) a retail store that is within an indoor public place or 04 workplace. 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 10 section. 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 28 accessories; 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 24 smoking. 25 Sec. 18.35.316. Powers and duties of the commissioner. (a) The 26 commissioner 27 (1) shall administer and enforce the requirements of AS 18.35.301 - 28 18.35.399; 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 20 $500. 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 23 read: 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
01 read: 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.