Legislature(2015 - 2016)
2016-04-17 Senate Journal
Full Journal pdf2016-04-17 Senate Journal Page 2639 HB 289 HOUSE BILL NO. 289 "An Act relating to the membership of the Board of Barbers and Hairdressers" which had been moved to the bottom of the calendar (page 2620), was before the Senate in second reading. 2016-04-17 Senate Journal Page 2640 Senator MacKinnon, Cochair, moved and asked unanimous consent for the adoption of the Finance Senate Committee Substitute offered on page 2591. Senator Gardner objected, then withdrew her objection. Senator Costello objected. The question being: "Shall the Finance Senate Committee Substitute be Adopted?" The roll was taken with the following result: HB 289 Second Reading Adopt Finance Senate Committee Substitute? YEAS: 18 NAYS: 2 EXCUSED: 0 ABSENT: 0 Yeas: Bishop, Coghill, Dunleavy, Egan, Ellis, Gardner, Giessel, Hoffman, Huggins, Kelly, MacKinnon, Meyer, Micciche, Olson, Stedman, Stevens, Stoltze, Wielechowski Nays: Costello, McGuire and so, SENATE CS FOR HOUSE BILL NO. 289(FIN) "An Act relating to the membership of the Board of Barbers and Hairdressers; and relating to the practice of optometry" was adopted. Senator Ellis offered Amendment No. 1 : Page 1, line 1: Delete "and" Page 1, line 2, following "optometry": Insert "; prohibiting smoking in certain places; relating to education on the smoking prohibition; and providing for an effective date" Page 1, following line 3: Insert a new bill section to read: "* Section 1. The uncodified law of the State of Alaska is amended by adding a new section to read: LEGISLATIVE INTENT. It is the intent of the legislature that nothing in this Act is intended to alter applicable law relating to liability of a manufacturer, dispenser, or other person for a cause of action that may arise from smoking tobacco, e-cigarettes, or other oral 2016-04-17 Senate Journal Page 2641 smoking devices in an enclosed area or to otherwise limit the state immunity from liability provided for in state law. In this section, "e- cigarette," "enclosed area," and "smoking" have the meanings given to those terms in AS 18.35.399." Page 1, line 4: Delete "Section 1" Insert "Sec. 2" Renumber the following bill sections accordingly. Page 3, following line 23: Insert new bill sections to read: "* Sec. 9. AS 18.35 is amended by adding new sections to read: Article 4. Prohibition of Smoking in Certain Places. Sec. 18.35.301. Prohibition of smoking. (a) Smoking is prohibited in an enclosed area in a public place, including an enclosed area (1) at an entertainment venue or a sports arena; (2) on a bus, in a taxicab, on a ferry, or in another vehicle used for public transportation; (3) at a public transit depot, bus shelter, airport terminal, or other public transportation facility; (4) at a retail store or shopping center; (5) at a place of government or public assembly located on property that is owned or operated by the state, a municipality, or a regional educational attendance area, or by an agent of the state, a municipality, or a regional educational attendance area. (b) Smoking is prohibited in an enclosed area (1) at an office building, office, hotel, motel, restaurant, bar, retail store, or common area in an apartment building or multiple-family dwelling; (2) in a place of employment; (3) in a building or residence that is used to provide paid child care, whether or not children are present in the building or residence; (4) at a health care facility; (5) in a vehicle that is a place of employment; (6) at a public or private educational facility; (7) in a building or residence that is the site of a business at which the care of adults is provided on a fee-for-service basis; 2016-04-17 Senate Journal Page 2642 (8) at a residence in a health care facility, hotel, or motel; (9) on a vessel operating as a shore-based fisheries business under AS 43.75. (c) Smoking is prohibited outdoors (1) at an area located at a public or private school or a state or municipal park that is designated as a place for children to play; (2) in a seating area for an outdoor arena, stadium, or amphitheater; (3) at a place of employment or health care facility that has declared the entire campus or outside grounds or property to be smoke-free; (4) within (A) 10 feet of an entrance to a bar or restaurant that serves alcoholic beverages; (B) 20 feet of an entrance, open window, or heating or ventilation system air intake vent at an enclosed area at a place where smoking is prohibited under this section; or (C) a reasonable distance of an entrance, open window, or heating or ventilation system air intake vent on a vessel covered by this section as determined by the vessel owner or operator in charge. (d) Notwithstanding (a) of this section, unless the owner or operator prohibits it, smoking is allowed at a retail tobacco or e- cigarette store. (e) Notwithstanding (a) and (i)(1)(D) of this section, unless a municipality or the owner or operator prohibits it, smoking of e- cigarettes is allowed in a retail tobacco or e-cigarette store that is located in a building that is attached to another business or residence if the retail store (1) does not sell cigarettes, cigars, tobacco, products containing tobacco, and pipes and tobacco smoking accessories; (2) provides proof sufficient to the department that the retail store was in business at that location on or before June 1, 2016; and (3) has not changed ownership or location since June 1, 2016. (f) Notwithstanding (a) and (b) of this section, smoking may be permitted in a separate enclosed smoking area located in a terminal for international passengers who are in transit in a state- 2016-04-17 Senate Journal Page 2643 owned and state-operated international airport and who are restricted by federal law from leaving the airport, if the smoking area is vented directly to an outdoor area that is not an area where smoking is prohibited under (c) of this section. (g) Notwithstanding (b) of this section, unless the owner or operator prohibits it, smoking is allowed (1) in a vehicle that is a place of employment when the vehicle is used exclusively by one person; (2) on a vessel when the vessel is engaged in commercial fishing or sport charter fishing or is otherwise used as a place of employment. (h) Nothing in this section prohibits smoking (1) at a private residence, except a private residence described in (b) of this section; (2) in a stand-alone shelter if the stand-alone shelter meets the following requirements: (A) food or drink may not be sold in the stand-alone shelter; (B) at least 50 percent of one side of the shelter is completely open to the outside; and (C) the stand-alone shelter meets the minimum distance requirements of (c) of this section; or (3) in an establishment licensed under AS 17.38 that is a freestanding building. (i) In this section, "retail tobacco or e-cigarette store" (1) means a retail store (A) that sells primarily cigarettes, e-cigarettes, cigars, tobacco and products containing tobacco, and pipes and other smoking or e-cigarette accessories; (B) in which the sale of other products is incidental; (C) that derives at least 90 percent of its gross revenue from the sale of cigarettes, e-cigarettes, cigars, tobacco and products containing tobacco, and pipes and other smoking or e-cigarette accessories; and (D) that is a freestanding building not attached to another business or to a residence; (2) does not include (A) a tobacco or e-cigarette department or section of a business that does not meet the criteria in (1) of this subsection; 2016-04-17 Senate Journal Page 2644 (B) a business that is also a restaurant or grocery store; (C) a business that is licensed under AS 04.11 to serve alcoholic beverages at an outdoor location; (D) a business that is licensed under AS 05.15 to sell pull-tabs; (E) a business that is licensed under AS 43.70.075 to sell tobacco but that does not meet the requirements of this subsection; or (F) a retail store that is within an indoor public place or workplace. Sec. 18.35.306. Notice of prohibition. (a) A person who is in charge of a place or vehicle where smoking is prohibited under AS 18.35.301 shall conspicuously display in the place or vehicle a sign that (1) reads "Smoking Prohibited by Law--Fine $50"; (2) includes the international symbol for no smoking; or (3) includes the words "No Puffin" with a pictorial representation of a Horned Puffin or Tufted Puffin holding a burning cigarette enclosed in a red circle crossed with a red bar. (b) A person in charge of a building at which smoking is prohibited within a specific distance from the entrance of the building under AS 18.35.301(c)(4) shall conspicuously display a sign that reads "Smoking within (number of feet) Feet of Entrance Prohibited by Law--Fine $50" visible from the outside of each entrance to the building. (c) The department shall furnish signs required under this section to a person who requests them with the intention of displaying them. Sec. 18.35.311. Duty of employers and building managers. (a)An employer may not permit an employee, customer, or other person to smoke inside an enclosed area at a place of employment. (b) The owner, operator, manager, or other person who manages a building or other place where smoking is prohibited under AS 18.35.301 may not provide ashtrays or other smoking accessories for use in that building or place. Sec. 18.35.316. Powers and duties of the commissioner. (a) The commissioner (1) shall administer and enforce the requirements of AS 18.35.301 - 18.35.399; 2016-04-17 Senate Journal Page 2645 (2) may adopt regulations under AS 44.62 (Administrative Procedure Act) necessary to carry out the duties under this section. (b) In addition to other powers granted the commissioner under AS 18.35.301 - 18.35.399, the commissioner may delegate to another agency the authority to implement and enforce one or more provisions of AS 18.35.301 - 18.35.399. Sec. 18.35.321. Public education. (a) The commissioner shall ensure that employers, property owners, property operators, and other members of the public are provided ongoing access to (1) a program of education regarding the requirements in AS 18.35.301 - 18.35.399; (2) an electronically published printable brochure that summarizes the requirements in AS 18.35.301 - 18.35.399. (b) The commissioner shall consult with the Department of Health and Social Services (1) to achieve compliance by employers, property owners, property operators, and other members of the public with the requirements of AS 18.35.301 - 18.35.399; (2) to provide the program of education as required under (a) of this section; the program of education may be provided in combination with the comprehensive smoking education, tobacco use prevention, and tobacco control program established in AS 44.29.020(a)(14). Sec. 18.35.326. Nonretaliation. (a) An employer may not discharge or in any other manner retaliate against an employee because the employee cooperates with or initiates enforcement of a requirement in AS 18.35.301 - 18.35.399. (b) The owner or operator of a vehicle or other place that is subject to a requirement in AS 18.35.301 - 18.35.399 may not retaliate against a customer or other member of the public for cooperating with or initiating enforcement of a requirement in AS 18.35.301 - 18.35.399. Sec. 18.35.331. Conflicts with local requirements. Nothing in AS 18.35.301 - 18.35.399 prohibits a municipality from adopting an ordinance imposing (1) additional limitations on smoking; or (2) additional duties on employers, owners, operators, and other persons who are subject to the requirements of AS 18.35.306 or 18.35.311 related to smoking. 2016-04-17 Senate Journal Page 2646 * Sec. 10. AS 18.35.340(a) is amended to read: (a) The commissioner shall develop and maintain a procedure for processing reports of violations of AS 18.35.301, 18.35.306, 18.35.311, and 18.35.326 [AS 18.35.300, 18.35.305, AND 18.35.330]. * Sec. 11. AS 18.35.340(b) is amended to read: (b) If, after investigating a report made under this section, the commissioner determines that a violation has occurred, (1) the commissioner may file a civil complaint in the district court to enforce the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 - 18.35.365]; or (2) an employee of the department designated by the commissioner to enforce the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 - 18.35.365] may issue a citation under AS 18.35.341(b). If an employee of the department issues a citation, the violation shall be processed and disposed of under AS 18.35.341. * Sec. 12. AS 18.35.340(c) is amended to read: (c) A person who violates AS 18.35.301, 18.35.311, or 18.35.326 [AS 18.35.300 OR 18.35.305] and against whom the commissioner has filed a civil complaint under this section is punishable by a civil fine of [NOT LESS THAN $10 NOR MORE THAN] $50. A person who violates AS 18.35.306 [AS 18.35.330] and against whom the commissioner has filed a civil complaint under this section is punishable by a civil fine of not less than $50 [$20] nor more than $300. Each day a violation of AS 18.35.306 [AS 18.35.330] continues after a civil complaint for the violation has been filed and served on the defendant constitutes a separate violation. * Sec. 13. AS 18.35.341(a) is amended to read: (a) A peace officer may issue a citation for a violation of AS 18.35.301, 18.35.311, or 18.35.326 [AS 18.35.300 OR 18.35.305] committed in the officer's presence or for a violation of AS 18.35.306 [AS 18.35.330]. The provisions of AS 12.25.175 - 12.25.230 apply to the issuance of a citation under this subsection. * Sec. 14. AS 18.35.341(b) is amended to read: (b) An employee of the department designated by the commissioner to enforce the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 - 18.35.365] may issue a citation for a violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, OR 18.35.330] regardless of whether 2016-04-17 Senate Journal Page 2647 the violation was committed in the employee's presence. A citation issued under this subsection shall be in the same form and shall be processed in the same manner as a citation issued by a peace officer under (a) of this section. An employee of the department may not arrest a person for a violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, OR 18.35.330]. * Sec. 15. AS 18.35.341(c) is amended to read: (c) A person who violates AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, OR 18.35.330] is guilty of a violation as defined in AS 11.81.900(b) and upon conviction is punishable by a fine of [NOT LESS THAN $10 NOR MORE THAN] $50 for a violation of AS 18.35.301, 18.35.311, or 18.35.326 [AS 18.35.300 OR 18.35.305] and by a fine of not less than $50 [$20] nor more than $300 for a violation of AS 18.35.306 [AS 18.35.330]. Each day a violation of AS 18.35.306 [AS 18.35.330] continues after a citation for the violation has been issued constitutes a separate violation. * Sec. 16. AS 18.35.341(d) is amended to read: (d) The supreme court shall establish a schedule of bail amounts for violations of AS 18.35.301, 18.35.306, 18.35.311, and 18.35.326 [AS 18.35.300, 18.35.305, AND 18.35.330], but in no event may the bail amount exceed the maximum fine that may be imposed for the violation under (c) of this section. The bail amount for a violation must appear on the citation. * Sec. 17. AS 18.35.342 is amended to read: Sec. 18.35.342. Multiple fines prohibited. A person may not be fined more than once for each violation of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, OR 18.35.330]. * Sec. 18. AS 18.35.343 is amended to read: Sec. 18.35.343. Injunctions. The commissioner or any affected party may institute an action in the superior court to enjoin repeated violations of AS 18.35.301, 18.35.306, 18.35.311, or 18.35.326 [AS 18.35.300, 18.35.305, or 18.35.330]. * Sec. 19. AS 18.35.350 is amended to read: Sec. 18.35.350. Enforcement authority. The commissioner or the commissioner's designee is responsible for enforcing the provisions of AS 18.35.301 - 18.35.399 [AS 18.35.300 - 2016-04-17 Senate Journal Page 2648 18.35.365]. This section does not limit the authority of peace officers. * Sec. 20. AS 18.35 is amended by adding a new section to read: Sec. 18.35.399. Definitions. In AS 18.35.301 - 18.35.399, (1) "business" means a for-profit or nonprofit sole proprietorship, partnership, joint venture, corporation, professional corporation, private club, retail seller of goods or services, or other business entity; (2) "commissioner" means the commissioner of environmental conservation or the commissioner's designee; (3) "department" means the Department of Environmental Conservation; (4) "e-cigarette" means any product containing or delivering nicotine or any other substance intended for human consumption that can be used by a person through inhalation of vapor or aerosol from the product, of any size or shape, whether the product is manufactured, distributed, marketed, or sold as an e- cigarette, e-cigar, e-pipe, e-hookah, vape pen, or any other product name or descriptor; "e-cigarette" does not include drugs, devices, or combination products authorized for sale by the United States Food and Drug Administration as those terms are defined in 21 U.S.C. 301 - 392 (Food, Drug, and Cosmetic Act), unless the use of those products simulate smoking or expose others to vapor or aerosol; (5) "employee" means a person who is employed by a business for compensation or works for a business as a volunteer without compensation; (6) "employer" means the state, a municipality, a regional educational attendance area, and a person or a business with one or more employees; (7) "enclosed area" means space between a floor and a ceiling that is bounded on two or more sides by a combination of walls, doorways, windows, or other physical barriers that may be open, partially open, closed, retractable, temporary, or permanent; (8) "health care facility" means an office or institution providing care or treatment for physical, mental, emotional, or other medical, dental, physiological, or psychological diseases or conditions; private, municipal, or state hospital; independent diagnostic testing facility; primary care outpatient facility; skilled nursing facility; kidney disease treatment center, including 2016-04-17 Senate Journal Page 2649 freestanding hemodialysis units; intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or Alaska Veterans' Home administered by the Department of Health and Social Services under AS 47.55; long-term care facility; psychiatric hospital; residential psychiatric treatment center, as defined in AS 18.07.111 or AS 47.32.900, and other facilities, places of employment, or offices operated for use by doctors, nurses, surgeons, chiropractors, physical therapists, physicians, psychiatrists, or dentists or other professional health care providers to provide health care; (9) "place of employment" means work areas, private offices, hotel and motel rooms, employee lounges, restrooms, conference rooms, classrooms, cafeterias, hallways, vehicles, and other employee work areas that are under the control of an employer; (10) "public place" includes (A) an area to which the public is invited or into which the public is admitted; (B) a place where services, goods, or facilities are offered to the public; (11) "smoking" means using an e-cigarette or other oral smoking device or inhaling, exhaling, burning, or carrying a lighted or heated cigar, cigarette, pipe, or tobacco or plant product intended for inhalation. * Sec. 21. AS 18.35.300, 18.35.305, 18.35.310, 18.35.320, 18.35.330, 18.35.355, and 18.35.365 are repealed. * Sec. 22. AS 18.35.301(e) is repealed June 2, 2019. * Sec. 23. The uncodified law of the State of Alaska is amended by adding a new section to read: APPLICABILITY. AS 18.35.301, 18.35.306, 18.35.311, 18.35.316, 18.35.321, 18.35.326, and 18.35.331, added by sec. 9 of this Act, AS 18.35.340(a) - (c), as amended by secs. 10 - 12 of this Act, AS 18.35.341(a) - (d), as amended by secs. 13 - 16 of this Act, AS 18.35.342, as amended by sec. 17 of this Act, AS 18.35.343, as amended by sec. 18 of this Act, AS 18.35.350, as amended by sec. 19 of this Act, and AS 18.35.399, added by sec. 20 of this Act, apply to violations or failures to comply that occur on or after the effective date of secs. 9 - 20 of this Act." Renumber the following bill sections accordingly. 2016-04-17 Senate Journal Page 2650 Page 3, line 27: Delete "sec. 1" Insert "sec. 2" Page 3, line 28: Delete "sec. 1" Insert "sec. 2" Page 3, lines 29 - 30: Delete "sec. 1" Insert "sec. 2" Page 3, line 30: Delete "sec. 1" Insert "sec. 2" Page 3, line 31: Delete "sec. 1" Insert "sec. 2" Page 4, line 3: Delete "sec. 1" in both places Insert "sec. 2" in both places Page 4, following line 4: Insert new bill sections to read: "* Sec. 25. The uncodified law of the State of Alaska is amended by adding a new section to read: TRANSITION; REGULATIONS. The Department of Environmental Conservation may adopt regulations necessary to implement AS 18.35.301, 18.35.306, 18.35.311, 18.35.316, 18.35.321, 18.35.326, and 18.35.331, added by sec. 9 of this Act, AS 18.35.340(a) - (c), as amended by secs. 10 - 12 of this Act, AS 18.35.341(a) - (d), as amended by secs. 13 - 16 of this Act, AS 18.35.342, as amended by sec. 17 of this Act, AS 18.35.343, as amended by sec. 18 of this Act, AS 18.35.350, as amended by sec. 19 of this Act, and AS 18.35.399, added by sec. 20 of this Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not before the effective date of the section being implemented. 2016-04-17 Senate Journal Page 2651 * Sec. 26. Section 25 of this Act takes effect immediately under AS 01.10.070(c). * Sec. 27. Sections 1 and 9 - 23 of this Act take effect October 1, 2016." Senator Ellis moved for the adoption of Amendment No. 1. Objections were heard. The question being: "Shall Amendment No. 1 be adopted?" The roll was taken with the following result: SCS HB 289(FIN) Second Reading Amendment No. 1? YEAS: 14 NAYS: 6 EXCUSED: 0 ABSENT: 0 Yeas: Bishop, Costello, Egan, Ellis, Gardner, Giessel, Hoffman, MacKinnon, McGuire, Meyer, Micciche, Olson, Stevens, Wielechowski Nays: Coghill, Dunleavy, Huggins, Kelly, Stedman, Stoltze and so, Amendment No. 1 was adopted. Senator Coghill moved and asked unanimous consent that the bill be considered engrossed, advanced to third reading and placed on final passage. Without objection, it was so ordered. SENATE CS FOR HOUSE BILL NO. 289(FIN) am S was read the third time. The question being: "Shall SENATE CS FOR HOUSE BILL NO. 289(FIN) am S "An Act relating to the membership of the Board of Barbers and Hairdressers; relating to the practice of optometry; prohibiting smoking in certain places; relating to education on the smoking prohibition; and providing for an effective date" pass the Senate?" The roll was taken with the following result: SCS HB 289(FIN) am S Third Reading - Final Passage Effective Dates 2016-04-17 Senate Journal Page 2652 YEAS: 15 NAYS: 5 EXCUSED: 0 ABSENT: 0 Yeas: Bishop, Costello, Egan, Ellis, Gardner, Giessel, Hoffman, MacKinnon, McGuire, Meyer, Micciche, Olson, Stedman, Stevens, Wielechowski Nays: Coghill, Dunleavy, Huggins, Kelly, Stoltze and so, SENATE CS FOR HOUSE BILL NO. 289(FIN) am S passed the Senate. Senator Coghill moved and asked unanimous consent that the vote on the passage of the bill be considered the vote on the effective date clauses. Without objection, it was so ordered. In accordance with Uniform Rules 43, engrossment was waived on SENATE CS FOR HOUSE BILL NO. 289(FIN) am S and the bill was returned to the House for consideration with a certified amendment.