txt

HB 174: "An Act raising the minimum age to purchase, sell, exchange, or possess a product containing nicotine or an electronic smoking product; and providing for an effective date."

00                             HOUSE BILL NO. 174                                                                          
01 "An Act raising the minimum age to purchase, sell, exchange, or possess a product                                       
02 containing nicotine or an electronic smoking product; and providing for an effective                                    
03 date."                                                                                                                  
04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
05    * Section 1. AS 11.76.100(a) is amended to read:                                                                   
06            (a)  A person commits the offense of selling or giving tobacco to a person                               
07       under 21 years of age [MINOR] if the person                                                                   
08                 (1)  negligently sells a cigarette, a cigar, tobacco, or a product                                      
09       containing tobacco to a person under 21 [19] years of age;                                                    
10                 (2)  is 21 [19] years of age or older and negligently exchanges or gives                            
11       a cigarette, a cigar, tobacco, or a product containing tobacco to a person under 21 [19]                      
12       years of age;                                                                                                     
13                 (3)  maintains a vending machine that dispenses cigarettes, cigars,                                     
14       tobacco, or products containing tobacco; or                                                                       
01                 (4)  holds a business license endorsement under AS 43.70.075 and                                        
02       allows a person under 21 [19] years of age to sell a cigarette, a cigar, tobacco, or a                        
03       product containing tobacco.                                                                                       
04    * Sec. 2. AS 11.76.100(b) is amended to read:                                                                      
05            (b)  Notwithstanding the provisions of (a) of this section, a person who                                     
06       maintains a vending machine is not in violation of (a)(3) of this section if the vending                          
07       machine is located                                                                                                
08                 (1)  on premises licensed as a beverage dispensary under AS 04.11.090,                                  
09       licensed as a club under AS 04.11.110, or licensed as a package store under                                       
10       AS 04.11.150; and                                                                                                 
11                      (A)  as far as practicable from the primary entrance; and                                          
12 (B)  in a place that is directly and continually supervised by a                                                        
13 person employed on the licensed premises during the hours the vending                                                   
14            machine is accessible to the public; or                                                                      
15 (2)  in an employee break room or other controlled area of a private                                                    
16 work place that is not generally considered a public place and the room or area                                         
17 contains a posted warning sign at least 11 inches by 14 inches indicating that                                          
18 possession of tobacco by a person under 21 [19] years of age is prohibited under                                    
19       AS 11.76.105.                                                                                                     
20    * Sec. 3. AS 11.76.100(e) is amended to read:                                                                      
21 (e)  The provisions of (a) of this section do not apply to a person who sells or                                        
22 gives tobacco to a person under 21 years of age [MINOR,] if the person under 21                                 
23       years of age [MINOR] is a prisoner at an adult correctional facility.                                         
24    * Sec. 4. AS 11.76.100 is amended by adding a new subsection to read:                                              
25 (g)  The provisions of (a) of this section do not apply to a person who sells or                                        
26 gives tobacco to a person under 21 years of age if the person receiving or possessing                                   
27 the tobacco is 18 years of age or older and an active member of the armed forces of                                     
28 the United States who possesses a valid active duty military or armed forces                                            
29 identification card issued by the United States Department of Defense or the United                                     
30       States Department of Homeland Security.                                                                           
31    * Sec. 5. AS 11.76.105 is amended to read:                                                                         
01 Sec. 11.76.105. Possession of tobacco, electronic smoking products, or                                                
02 products containing nicotine by a person under 21 years of age [MINOR]. (a) A                                       
03 person under 21 [19] years of age may not knowingly possess a cigarette, a cigar,                                   
04 tobacco, a product containing tobacco, an electronic smoking product, or a product                                      
05 containing nicotine in this state. This subsection does not apply to a person who is a                                  
06 prisoner at an adult correctional facility or a person who is 18 years of age or older                              
07 and an active member of the armed forces of the United States who possesses a                                       
08 valid active duty military or armed forces identification card issued by the United                                 
09 States Department of Defense or the United States Department of Homeland                                            
10       Security.                                                                                                     
11 (b)  In a prosecution under (a) of this section for possession of an electronic                                         
12 smoking product or a product containing nicotine, it is an affirmative defense that the                                 
13 electronic smoking product or product containing nicotine possessed by the person                                       
14 under 21 [19] years of age was intended or expected to be consumed without being                                    
15       combusted, and the electronic smoking product or product containing nicotine                                      
16 (1)  has been approved by the United States Food and Drug                                                               
17 Administration for sale as a tobacco use cessation or harm reduction product or for                                     
18       other medical purposes;                                                                                           
19                 (2)  was being marketed and sold for the approved purposes; and                                         
20                 (3)  was                                                                                                
21                      (A)  prescribed by a health care professional;                                                     
22                      (B)  given to the person by the person's parent or guardian;                                       
23 (C)  provided by a state-approved tobacco cessation program                                                             
24            administered by the Department of Health and Social Services; or                                             
25 (D)  provided by a pharmacist to a person 18 years of age or                                                            
26            older without a prescription.                                                                                
27 (c)  Possession of tobacco, an electronic smoking product, or a product                                                 
28       containing nicotine by a person under 21 years of age [MINOR] is a violation.                                 
29    * Sec. 6. AS 11.76.106(b) is amended to read:                                                                      
30            (b)  Subsection (a) does not apply if the sale                                                               
31 (1)  is by vending machine as provided under AS 11.76.100(b) or                                                         
01       11.76.109(f);                                                                                                     
02                 (2)  is a wholesale transaction, the person is licensed as a manufacturer                               
03       or distributor under AS 43.50.010, and the sale occurs on premises where no retail                                
04       transactions occur;                                                                                               
05                 (3)  is by a retailer who sells primarily cigarettes, cigars, tobacco,                                  
06       products containing tobacco, electronic smoking products, or products containing                                  
07       nicotine and who restricts access to the premises to only those individuals who are                               
08                      (A)  21 [19] years of age or older; or                                                         
09                      (B)  18 years of age or older and active members of the                                        
10 armed forces of the United States who possess a valid active duty military                                          
11 or armed forces identification card issued by the United States                                                     
12 Department of Defense or the United States Department of Homeland                                                   
13            Security; or                                                                                             
14                 (4)  is of electronic smoking products over the Internet to a person                                    
15                      (A)  21 [19] years of age or older; or                                                     
16 (B)  18 years of age or older and an active member of the                                                           
17 armed forces of the United States who possesses a valid armed forces                                                
18 identification card issued by the United States Department of Defense or                                            
19            an Alaska National Guard identification card.                                                            
20    * Sec. 7. AS 11.76.109(a) is amended to read:                                                                      
21 (a)  A person commits the offense of selling or giving an electronic smoking                                            
22 product or a product containing nicotine to a person under 21 years of age [MINOR]                                  
23       if the person                                                                                                     
24 (1)  negligently sells an electronic smoking product or a product                                                       
25       containing nicotine to a person under 21 [19] years of age;                                                   
26 (2)  is 21 [19] years of age or older and negligently exchanges or gives                                            
27 an electronic smoking product or a product containing nicotine to a person under 21                                 
28       [19] years of age;                                                                                                
29 (3)  maintains a vending machine that dispenses electronic smoking                                                      
30       products or products containing nicotine; or                                                                      
31 (4)  holds a business license endorsement under AS 43.70.075 and                                                        
01       allows a person under 21 [19] years of age to sell an electronic smoking product or a                         
02       product containing nicotine.                                                                                      
03    * Sec. 8. AS 11.76.109(b) is amended to read:                                                                      
04 (b)  The provisions of (a) of this section do not apply to the sale, exchange, or                                       
05 gift to a person under 21 [19] years of age of an electronic smoking product or a                                   
06 product containing nicotine that is intended or expected to be consumed without being                                   
07       combusted if the electronic smoking product or product containing nicotine                                        
08                 (1)  has been approved by the United States Food and Drug                                               
09       Administration for sale as a tobacco use cessation or harm reduction product or for                               
10       other medical purposes;                                                                                           
11                 (2)  is being marketed and sold solely for the approved purposes; and                                   
12                 (3)  is                                                                                                 
13                      (A)  prescribed by a health care professional;                                                     
14                      (B)  given to a person by the person's parent or legal guardian;                                   
15 (C)  provided by a state-approved tobacco cessation program                                                             
16            administered by the Department of Health and Social Services; or                                             
17 (D)  provided by a pharmacist to a person 18 years of age or                                                            
18            older without a prescription.                                                                                
19    * Sec. 9. AS 11.76.109(d) is amended to read:                                                                      
20 (d)  Notwithstanding (a)(3) of this section, a person who maintains a vending                                           
21       machine is not in violation of (a)(3) of this section if the vending machine is located                           
22 (1)  on premises licensed as a beverage dispensary under AS 04.11.090,                                                  
23 licensed as a club under AS 04.11.110, or licensed as a package store under                                             
24       AS 04.11.150, and is located                                                                                      
25                      (A)  as far as practicable from the primary entrance; and                                          
26 (B)  in a place that is directly and continually supervised by a                                                        
27 person employed on the licensed premises during the hours the vending                                                   
28            machine is accessible to the public; or                                                                      
29 (2)  in an employee break room or other controlled area of a private                                                    
30 work place that is not generally considered a public place and the room or area                                         
31 contains a posted warning sign at least 11 inches by 8.5 inches indicating that                                         
01       possession of electronic smoking products or products containing nicotine by a person                             
02       under 21 [19] years of age without a prescription is prohibited under AS 11.76.109.                           
03    * Sec. 10. AS 11.76.109(g) is amended to read:                                                                     
04            (g)  Selling or giving an electronic smoking product or a product containing                                 
05       nicotine to a person under 21 years of age [MINOR] is a violation and, upon                                   
06       conviction, is punishable by a fine of not less than $300.                                                        
07    * Sec. 11. AS 11.76.109 is amended by adding a new subsection to read:                                             
08            (h)  The provisions of (a) of this section do not apply to a person who sells or                             
09       gives an electronic smoking product or a product containing nicotine to a person under                            
10 21 years of age if the person receiving the electronic smoking product or product                                       
11 containing nicotine is 18 years of age or older and an active member of the armed                                       
12 forces of the United States who possesses a valid active duty military or armed forces                                  
13 identification card issued by the United States Department of Defense or the United                                     
14       States Department of Homeland Security.                                                                           
15    * Sec. 12. AS 43.50.105(b) is amended to read:                                                                     
16 (b)  A person who is licensed under this chapter may not ship or cause to be                                            
17       shipped cigarettes to a person in this state unless the person receiving the cigarettes                           
18                 (1)  is licensed under this chapter;                                                                    
19                 (2)  holds a business license endorsement under AS 43.70.075;                                           
20 (3)  is an operator of a customs bonded warehouse under 19 U.S.C.                                                       
21       1311 or 19 U.S.C. 1555;                                                                                           
22 (4)  is an instrumentality of the federal government or an Indian tribal                                                
23 organization authorized by law to possess cigarettes not taxed under this chapter; [OR]                                 
24 (5)  is an individual 21 [19] years of age or older receiving the                                                   
25 cigarettes for personal consumption and the tax imposed on the cigarettes under this                                    
26       chapter has been paid; or                                                                                     
27 (6)  is an individual who is 18 years of age or older and an active                                                 
28 member of the armed forces of the United States who possesses a valid active                                        
29 duty military or armed forces identification card issued by the United States                                       
30       Department of Defense or the United States Department of Homeland Security.                                   
31    * Sec. 13. AS 43.70.075(f) is amended to read:                                                                     
01 (f)  A person who holds a license endorsement issued under this section shall                                           
02 post on the licensed premises a warning sign as described in this subsection. A                                         
03 warning sign required by this subsection must be at least 8.5 inches by 11 inches and                                   
04 must read: "The sale of electronic smoking products or products containing nicotine                                     
05 without a prescription or tobacco products to persons under age 21 [19] is illegal." A                              
06 person holding an endorsement issued under this section shall display the warning sign                                  
07 in a manner conspicuous to a person purchasing or consuming tobacco products,                                           
08 electronic smoking products, or products containing nicotine on the licensed premises.                                  
09 The department shall make available the warning signs required under this section to a                                  
10 person who holds an endorsement issued under this section or a person who requests                                      
11       the sign with the intention of displaying it.                                                                     
12    * Sec. 14. AS 43.70.075(m) is amended to read:                                                                     
13 (m)  The department may initiate suspension of a business license endorsement                                           
14 or the right to obtain a business license endorsement under this section by sending the                                 
15 person subject to the suspension a notice by certified mail, return receipt requested, or                               
16 by delivering the notice to the person. The notice must contain information that                                        
17 informs the person of the grounds for suspension, the length of any suspension sought,                                  
18 and the person's right to administrative review. A suspension begins 30 days after                                      
19 receipt of notice described in this subsection unless the person delivers a timely                                      
20 written request for a hearing to the department in the manner provided by regulations                                   
21 of the department. If a hearing is requested under this subsection, an administrative                                   
22 law judge of the office of administrative hearings (AS 44.64.010) shall determine the                                   
23 issues by using the preponderance of the evidence test and shall, to the extent they do                                 
24 not conflict with regulations adopted under AS 44.64.060, conduct the hearing in the                                    
25 manner provided by regulations of the department. A hearing under this subsection is                                    
26       limited to the following questions:                                                                               
27 (1)  was the person holding the business license endorsement, or an                                                     
28 agent or employee of the person while acting within the scope of the agency or                                          
29 employment of the person, convicted by plea or judicial finding of violating                                            
30       AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109;                                                                 
31 (2)  if the department does not allege a conviction of AS 11.76.100,                                                    
01 11.76.106, 11.76.107, or 11.76.109, did the person, or an agent or employee of the                                      
02 person while acting within the scope of the agency or employment of the person,                                         
03       violate a provision of (a) or (g) of this section;                                                                
04 (3)  within the 24 months before the date of the department's notice                                                    
05 under this subsection, was the person, or an agent or employee of the person while                                      
06 acting within the scope of the agency or employment of the person, convicted of                                         
07 violating AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 or adjudicated for                                           
08       violating a provision of (a) or (g) of this section;                                                              
09 (4)  did the person holding the business license endorsement establish                                                  
10 that the person holding the business license endorsement had adopted and enforced an                                    
11 education, a compliance, and a disciplinary program for agents and employees of the                                     
12       person as provided in (t) of this section;                                                                        
13 (5)  did the person holding the business license endorsement overcome                                                   
14       the rebuttable presumption established in (w) of this section;                                                    
15 (6)  within five years before the date of the violation that is the subject                                             
16 of the hearing, did the department establish that the person holding the business                                       
17       license endorsement                                                                                               
18                      (A)  previously violated (a) or (g) of this section;                                               
19 (B)  previously violated AS 11.76.100, 11.76.106, 11.76.107, or                                                         
20 11.76.109 at a location or outlet in a location for which the person holds a                                            
21 business license endorsement, or had an agent or employee previously violate                                            
22 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; this subparagraph does not                                            
23 apply to a prior conviction that served to enhance a suspension period under                                            
24            (d)(2) - (4) of this section; or                                                                             
25 (C)  engaged at a location owned by the person in other conduct                                                         
26 that was or is likely to result in the sale of tobacco, electronic smoking                                              
27 products, or products containing nicotine to a person under 21 [19] years of                                        
28            age in violation of AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109.                                        
29    * Sec. 15. AS 43.70.075(t) is amended to read:                                                                     
30 (t)  Based on evidence provided at the hearing under (m)(4) - (6) of this                                               
31 section, the department may reduce the license suspension period under (d) of this                                      
01       section if the person holding the business license endorsement establishes that, before                           
02       the date of the violation, the person had                                                                         
03 (1)  adopted and enforced a written policy against selling cigarettes,                                                  
04 cigars, tobacco, products containing tobacco, electronic smoking products, or products                                  
05 containing nicotine to a person under 21 [19] years of age in violation of                                          
06       AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109;                                                                 
07                 (2)  informed the person's agents and employees of the applicable laws                                  
08       and their requirements and conducted training on complying with the laws and                                      
09       requirements;                                                                                                     
10 (3)  required each agent and employee of the person to sign a form                                                      
11 stating that the agent and employee has been informed of and understands the written                                    
12       policy and the requirements of AS 11.76.100, 11.76.106, 11.76.107, and 11.76.109;                                 
13 (4)  determined that the agents and employees of the person had                                                         
14 sufficient experience and ability to comply with the written policy and requirements of                                 
15       AS 11.76.100, 11.76.106, 11.76.107, and 11.76.109;                                                                
16 (5)  required the agents and employees of the person to verify the age                                                  
17 of purchasers of cigarettes, cigars, tobacco, other products containing tobacco,                                        
18 electronic smoking products, or products containing nicotine by means of a valid                                        
19       government issued photographic identification;                                                                    
20 (6)  established and enforced disciplinary sanctions for noncompliance                                                  
21 with the written policy or the requirements of AS 11.76.100, 11.76.106, 11.76.107,                                      
22       and 11.76.109; and                                                                                                
23 (7)  monitored the compliance of the agents and employees of the                                                        
24 person with the written policy and the requirements of AS 11.76.100, 11.76.106,                                         
25       11.76.107, and 11.76.109.                                                                                         
26    * Sec. 16. AS 43.70.075(w) is amended to read:                                                                     
27 (w)  For purposes of (m)(5) of this section, a conviction for a violation of                                            
28 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 by the agent or employee of the                                        
29 person who holds the business license endorsement is rebuttably presumed to                                             
30 constitute proof of the fact that the agent or employee negligently sold a cigarette, a                                 
31 cigar, or tobacco, a product containing tobacco, an electronic smoking product, or a                                    
01 product containing nicotine to a person under 21 [19] years of age. The person who                                  
02 holds the business license endorsement may overcome the presumption by                                                  
03 establishing by clear and convincing evidence that the agent or employee did not                                        
04 negligently sell a cigarette, a cigar, or tobacco, a product containing tobacco, an                                     
05 electronic smoking product, or a product containing nicotine to a person under 21 [19]                              
06 years of age in violation of AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 as                                        
07 alleged in the citation issued to the agent or employee. The presentation of evidence                                   
08 authorized by this subsection does not constitute a collateral attack on the conviction                                 
09       described in this subsection.                                                                                     
10    * Sec. 17. AS 47.12.030(b) is amended to read:                                                                     
11 (b)  When a minor is accused of violating a statute specified in this subsection,                                       
12 other than a statute the violation of which is a felony, this chapter and the Alaska                                    
13 Delinquency Rules do not apply and the minor accused of the offense shall be                                            
14 charged, prosecuted, and sentenced in the district court in the same manner as an                                       
15 adult; if a minor is charged, prosecuted, and sentenced for an offense under this                                       
16 subsection, the minor's parent, guardian, or legal custodian shall be present at all                                    
17 proceedings; the provisions of this subsection apply when a minor is accused of                                         
18       violating                                                                                                         
19 (1)  a traffic statute or regulation, or a traffic ordinance or regulation of                                           
20       a municipality;                                                                                                   
21 (2)  AS 11.76.105, relating to the possession of tobacco by a person                                                    
22       under 21 [19] years of age;                                                                                   
23                 (3)  a fish and game statute or regulation under AS 16;                                                 
24 (4)  a parks and recreational facilities statute or regulation under                                                    
25       AS 41.21;                                                                                                         
26                 (5)  [REPEALED]                                                                                         
27 (6)  a municipal curfew ordinance, whether adopted under                                                                
28 AS 29.35.085 or otherwise, unless the municipality provides for enforcement of its                                      
29 ordinance under AS 29.25.070(b) by the municipality; in place of any fine imposed for                                   
30 the violation of a municipal curfew ordinance, the court shall allow a defendant the                                    
31 option of performing community work; the value of the community work, which may                                         
01 not be lower than the amount of the fine, shall be determined under AS 12.55.055(c);                                    
02 in this paragraph, "community work" includes the work described in AS 12.55.055(b)                                      
03 or work that, on the recommendation of the municipal or borough assembly, city                                          
04 council, or traditional village council of the defendant's place of residence, would                                    
05       benefit persons within the municipality or village who are elderly or disabled.                                   
06    * Sec. 18. This Act takes effect January 1, 2020.