Legislature(2015 - 2016)CAPITOL 106
03/31/2016 03:00 PM House HEALTH & SOCIAL SERVICES
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s) | |
| HB200 | |
| HB328 | |
| Confirmation Hearing(s) | |
| HB328 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 200 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 328 | TELECONFERENCED | |
HB 328-REGULATION OF SMOKING
3:29:14 PM
CHAIR SEATON announced that the next order of business would be
HOUSE BILL NO. 328, "An Act prohibiting smoking in certain
places; relating to education on the smoking prohibition; and
providing for an effective date."
[Before the committee was proposed committee substitute (CS) for
HB 328, Version 29-LS1502\W, Martin, 3/18/16, adopted as a work
draft on 3/24/16.]
3:30:14 PM
The committee took an at-ease from 3:30 p.m. to 3:36 p.m.
3:36:10 PM
REPRESENTATIVE WOOL [moved to adopt] Amendment 1, labeled 29-
LS1502\W.9, Mischel/Martin, 3/30/16, which read:
Page 4, line 9:
Delete "or"
Page 4, line 16, following "section":
Insert "; or
(3) in an establishment licensed under AS
17.38 that is a freestanding building not attached to
another business or to a residence"
REPRESENTATIVE VAZQUEZ objected.
3:36:59 PM
REPRESENTATIVE WOOL explained that as there are other exemptions
for different establishments, proposed Amendment 1 would allow
any exemptions that AS 17.38 allowed in the event it allowed any
sort of consumption on any premises as, he noted, the Marijuana
Control Board has said it would in certain circumstances. This
would allow those [establishments] to operate without the
smoking ban superseding that.
REPRESENTATIVE TARR asked whether Legislative Legal and Research
Services could clarify any ambiguity for the definition of
freestanding building.
3:37:47 PM
HILARY MARTIN, Attorney, Legislative Legal and Research
Services, Legislative Affairs Agency, explained that a
freestanding building could be defined through regulation,
because the proposed bill itself did not define freestanding
building, or it could be interpreted as the common meaning of
the word.
CHAIR SEATON questioned whether buildings abutting each other,
but with separate structural walls, are considered freestanding.
MS. MARTIN responded yes, if it's not attached to another
building even though the walls are next to each other, and
assuming they are not structurally dependent on each other.
CHAIR SEATON offered his understanding that, as long as the
walls are not dependent on each other for structural unity and
there are no common passages between, the buildings would be
considered freestanding.
MS. MARTIN concurred.
REPRESENTATIVE FOSTER asked whether many of the buildings in
downtown Juneau, connected but not requiring the adjacent
building for structural support, would be considered
freestanding.
MS. MARTIN responded yes, if they are separate buildings and not
attached, even though next to each other.
REPRESENTATIVE TARR asked whether any business in a strip mall
meets that requirement.
MS. MARTIN opined that strip mall locales are not individually
freestanding, as they are part of one building with many
businesses and outside entrances.
REPRESENTATIVE TARR asked about a strip mall in which the units
are individually owned, similar to a condominium.
MS. MARTIN offered her belief that ownership would not enter
into this definition.
CHAIR SEATON suggested that the building unit would be a
freestanding building, although the individual businesses within
it would not be considered freestanding.
REPRESENTATIVE WOOL suggested that "not attached" is the
definitive point.
CHAIR SEATON asked whether a definition for a freestanding
building could be written to include the points discussed
regarding structural independence with a lack of common
entrances or internal connections to abutting buildings.
MS. MARTIN replied yes, and said that lacking a definition, the
determination for regulation and enforcement would defer to the
department.
REPRESENTATIVE WOOL, directing attention to proposed Amendment
1, suggested that only "freestanding" should be used, and "not
attached" should be deleted, as that could be in conflict. He
stated that he would like a legal definition.
3:46:45 PM
REPRESENTATIVE WOOL [moved to adopt] Conceptual Amendment 1 to
Amendment 1, on line 7, to delete "not attached to another
business or to a residence." There being no objection,
Conceptual Amendment 1 to Amendment 1 was adopted.
3:48:50 PM
The committee took a brief at-ease.
3:50:28 PM
REPRESENTATIVE VAZQUEZ removed her objection. There being no
further objection, Amendment 1, as amended, was adopted.
3:51:33 PM
REPRESENTATIVE TALERICO moved to adopt Amendment 2, labeled 29-
LS1502\W.3, Martin, 3/28/16, which read:
Page 2, line 20:
Delete "primarily"
CHAIR SEATON objected for discussion.
REPRESENTATIVE TALERICO explained that Amendment 2 removes the
ambiguity of the word "primarily" and requires a definite
designation for places where children play.
3:52:28 PM
CHAIR SEATON removed his objection.
3:52:42 PM
REPRESENTATIVE VAZQUEZ objected for discussion and asked about
state or municipal parks, which are often used by many age
groups, including children, but are not solely designated for
use by children.
REPRESENTATIVE TALERICO explained that the proposed amendment
generically covers "the overall designation of potentially a
large area." Amendment 2 provides for a separate, designated
area of play specifically for children, and not just a wide open
space. He opined that state parks are not wholly designated as
play grounds, although there are some areas designated as such.
3:54:19 PM
CHAIR SEATON suggested a friendly amendment, page 2, line 20,
after "park" insert "or portion thereof". He said that this
eliminates the need to designate the entirety of a park, and
allows for a children's playground area in a large park to be
exempted.
REPRESENTATIVE TALERICO accepted the friendly amendment.
3:55:29 PM
The committee took a brief at-ease.
3:56:34 PM
CHAIR SEATON pointed out that the preceding language, "at an
area located at those parks" provides a designated area for a
portion of the park to be included. He withdrew the friendly
amendment.
REPRESENTATIVE VAZQUEZ maintained her objection stating that
there are few places solely designated for children to play and
that she did not "see this as a realistic scenario in everyday
life." She declared that the whole provision is unsettling to
her as it's difficult to define the addressed areas and
difficult to interpret.
3:59:07 PM
JOSHUA BANKS, Staff, Representative Dave Talerico, Alaska State
Legislature, shared that an area located at a public or private
school, state or municipal park would not be all inclusive, but
would require that an area be designated as a place for children
to play.
REPRESENTATIVE VAZQUEZ stated her belief that use of the words
"play area" or "playground" is more specific, as opposed to "an
area located".
REPRESENTATIVE WOOL asked whether a ball field would be included
because it's an area used by both adults and children.
REPRESENTATIVE TALERICO stated his understanding that a sports
field is not a place to smoke and suggested that any area
designated for children should be non-smoking.
CHAIR SEATON said that a Little League field would be
specifically designated for children.
REPRESENTATIVE TARR pondered the affects this legislation might
have on large tracts of multi-use land, including Kincaid Park
or Russian Jack Park, and suggested that clarity needs to be
provided in a definition to avoid inadvertent miss-use.
REPRESENTATIVE WOOL pointed to complexes comprised of softball
fields used by adults and children.
REPRESENTATIVE TARR suggested that having this discussion on the
record would allow the department to more clearly define the
legal smoking areas and avoid any confusion.
4:05:39 PM
CHUCK KOPP, Staff, Senator Peter Micciche, Alaska State
Legislature, shared that the same question was raised in the
Senate, and pointed out that discretion is built into the bill
because it requires a "Notice of Designation" as a children's
play area. If it is not noticed, then smoking is not
prohibited. He said this language aligns with what is contained
in the Anchorage Municipal smoking ordinance in that it requires
designation as a non-smoking area.
REPRESENTATIVE VAZQUEZ suggested the addition of "clearly
posted" preceding "designated".
MR. KOPP explained that if a place is designated, then it must
be posted. He reminded the committee that smoking is allowed
outdoors unless the area is otherwise posted.
REPRESENTATIVE VAZQUEZ asked for a definition of "designated".
MR. KOPP replied that it is specially set apart for a purpose.
CHAIR SEATON directed attention to Version W, page 4, line 17,
and asked whether the definition contained there is adequate.
REPRESENTATIVE VAZQUEZ maintained her question and pointed to
page 4, line 17, opining that the language simply sets forth the
type of signs where smoking is prohibited. She directed
attention to page 2, which includes language stating an "area
that's designated as a place for children to play" and no
directive regarding signs to prohibit smoking.
MR. KOPP directed attention to page 4, line 17, and read: "a
person who is in charge of a place... " He pointed out that the
person in charge is required to conspicuously display a sign
that reads [Smoking Prohibited by Law]. He said that a locale
specifically prohibited and designated for children to play must
be noticed by the person in charge.
REPRESENTATIVE TARR ascertained that the maximum fine for non-
compliance would be $50.
4:10:37 PM
REPRESENTATIVE VAZQUEZ maintained her objection, opining that
the language is confusing. She stated that an area designated
for children to play does not automatically equal a prohibition
of smoking. She asked what is meant by the language, "area
located at a public or private school or state or municipal... "
and pointed out that this could include a multi-use park/area.
4:11:27 PM
A roll call vote was taken. Representatives Wool, Tarr, Foster,
Vazquez, Talerico, and Seaton voted in favor of Amendment 2.
Therefore, Amendment 2 was adopted by a vote of 6-0.
REPRESENTATIVE VAZQUEZ advised that she was not objecting to the
proposed amendment, she was objecting to the vagueness on page
2, lines 19-20. She opined that it would be a great exercise in
interpretation.
4:12:24 PM
REPRESENTATIVE TALERICO moved to adopt Amendment 3, labeled 29-
LS1502\W.4, Martin, 3/28/16, which read:
Page 2, line 16:
Delete "marine"
Page 2, line 31:
Delete "marine"
Page 4, line 5:
Delete "marine"
CHAIR SEATON objected for discussion.
MR. BANKS explained that proposed Amendment 3 deletes the word
"marine" in three areas of the bill, and pointed out that this
relates to the prohibition of smoking on certain vessels, the
distance a person must be away from the vessel in order to
smoke, and speaks to the allowance of smoking on certain
vessels. He turned to a previous meeting wherein comments and
concerns were voiced pointing out that the term marine vessels
excludes fresh water vessels, and he offered that by removing
the specific terminology, all vessels on all waters will be
included.
CHAIR SEATON removed his objection. There being no further
objection, Amendment 3 was adopted.
4:14:24 PM
REPRESENTATIVE TALERICO moved to adopt Amendment 4, labeled 29-
LS1502\W.5, Martin, 3/28/16, which read:
Page 8, lines 26 - 29:
Delete all material and insert:
(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, 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;"
CHAIR SEATON objected for discussion.
MR. BANKS explained that proposed Amendment 4 would change the
definition for an e-cigarette, as defined in Version W, to
address the concern that vaping products do not always look like
a cigarette, cigar, or pipe, and he offered descriptions for
various vaping products. The proposed amendment would ensure
that all vaping products, no matter the profile, would be
included.
4:16:01 PM
REPRESENTATIVE TALERICO moved to adopt Conceptual Amendment 1 to
Amendment 4, which on line 5, following "product" add "of any
size or shape". There being no objection, Conceptual Amendment
1 to Amendment 4 was adopted.
REPRESENTATIVE TALERICO moved to adopt Conceptual Amendment 2 to
Amendment 4, which, on line 7, following "descriptor;" add "e-
cigarette does not include drugs, devices, or combination
products authorized for sale by the U.S. Food and Drug
Administration (USFDA) as those terms are defined in the Federal
Food, Drug, and Cosmetic Act, unless the use of those products
simulates smoking or exposes others to vapor or aerosol;".
CHAIR SEATON objected for discussion.
REPRESENTATIVE TARR asked about the products offered for sale by
the USFDA, and the intent of Conceptual Amendment 2.
4:18:13 PM
MR. BANKS responded that concern was expressed that the proposed
Amendment 4 could be interpreted to include inhalers, which is
not the intent. He suggested that adding a second clarifying
sentence [to Conceptual Amendment 2] would ensure that products
like inhalers would not inadvertently be included.
REPRESENTATIVE TARR questioned whether smoking cessation
products are issued by prescription, and she further questioned
whether nicotine patches, or other similar products, are
considered smoking.
MR. BANKS opined that patches do have nicotine in them, and it
would not simulate smoking and it would not expose non-users to
vapor or aerosol. He added that he does not believe it would be
included in this.
REPRESENTATIVE WOOL reflected on the definition in the original
bill, which discusses exhaling and the effects of second hand
breathing; noting that the proposed amendment does not address
any "simulated burning." He mused that this amendment pertains
to inhalation, which differs from conventional smoking, and
represents a different public safety risk.
CHAIR SEATON opined that vaping is generally regarded as
inhalation and the definition of an e-cigarette is the mechanism
for initiating the vaping process.
4:22:26 PM
CHAIR SEATON removed his objection to Conceptual Amendment 2 to
Amendment 4. There being no further objection, Conceptual
Amendment 2 to Amendment 4 was adopted.
CHAIR SEATON removed his objection to Amendment 4. There being
no further objection, Amendment 4, as amended, was adopted.
HB 328-REGULATION OF SMOKING
4:38:23 PM
CHAIR SEATON announced, as its final order of business, that the
committee would return to HOUSE BILL NO. 328, "An Act
prohibiting smoking in certain places; relating to education on
the smoking prohibition; and providing for an effective date."
[Before the committee was proposed committee substitute (CS) for
HB 328, Version 29-LS1502\W, Martin, 3/18/16, adopted as a
working document on 3/24/16.]
4:38:31 PM
CHAIR SEATON moved to adopt Amendment 5, labeled 29-LS1502\W.6,
Martin, 3/29/16, which read:
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 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 10, line 5:
Delete "sec. 1"
Insert "sec. 2"
Page 10, line 6:
Delete "secs. 2 - 4"
Insert "secs. 3 - 5"
Delete "secs. 5 - 8"
Insert "secs. 6 - 9"
Page 10, line 7:
Delete "sec. 9"
Insert "sec. 10"
Delete "sec. 10"
Insert "sec. 11"
Page 10, line 8:
Delete "sec. 11"
Insert "sec. 12"
Delete "sec. 12"
Insert "sec. 13"
Page 10, line 10:
Delete "secs. 1 - 12"
Insert "secs. 2 - 13"
Page 10, line 15:
Delete "sec. 1"
Insert "sec. 2"
Page 10, line 16:
Delete "secs. 2 - 4"
Insert "secs. 3 - 5"
Delete "secs. 5 - 8"
Insert "secs. 6 - 9"
Page 10, line 17:
Delete "sec. 9"
Insert "sec. 10"
Page 10, lines 17 - 18:
Delete "sec. 10"
Insert "sec. 11"
Page 10, line 18:
Delete "sec. 11"
Insert "sec. 12"
Page 10, line 19:
Delete "sec. 12"
Insert "sec. 13"
Page 10, line 21:
Delete "Section 15"
Insert "Section 16"
Page 10, line 22:
Delete "sec. 16"
Insert "sec. 17"
REPRESENTATIVE TALERICO objected for discussion.
4:38:42 PM
CHAIR SEATON explained that this intent language is to ensure
that nothing in the act allows smoking in certain indoor or
other specific locations, and it offers no immunity from
liability to a manufacturer, dispenser, or other person, from
any cause of action related to smoking or e-cigarettes or other
oral smoking devices, and their use in an enclosed area.
4:39:46 PM
REPRESENTATIVE TALERICO removed his objection. There being no
further objection, Amendment 5 was adopted.
4:40:42 PM
The committee took a brief at-ease.
4:41:07 PM
REPRESENTATIVE TARR moved to adopt Amendment 6, labeled 29-
LS1502\W.8, Martin, 3/30/16, which read:
Page 3, line 14, following "residence":
Insert ", or if the store is not in a
freestanding building, the store has a ventilation
system that is separate from other businesses or
residences in or attached to the same building"
CHAIR SEATON objected for discussion.
REPRESENTATIVE TARR expressed concern for the impact of these
provisions on existing businesses. She offered an example of
buffer zones around schools that restrict sales of alcohol,
although any existing businesses would have been grandfathered
in. She noted that most vaping shops currently allow smoking or
testing of the product, and many are located in strip malls.
These businesses may find it difficult to remain open, she
cautioned, and said it is hard to understand the scope of these
provisions; hence, the proposed amendment is an attempt to
strike a middle ground. She reported having made inquiries to
businesses who expressed a myriad of concerns for the impacts of
vapors and odors. She stated her belief that the existing
businesses would be subject to the new provisions, and would not
be grandfathered in under this bill. Empty store fronts
represent an open invitation for negative activities including
vandalism and loitering. In her district, she said, active
businesses often maintain security cameras, which cut down on
vandalism and public nuisance individuals. It remains unclear
whether the proposed amendment will strike the right balance,
she opined, and questioned if it could be in conflict with a
previous amendment. There is also a lack of clarity for a
business operating as both a retail outlet and a lounge for
product consumption, and whether that business would have the
ability to prove that it was effectively closed down because the
law was changed so significantly that it became impossible to
keep its doors open. She acknowledged that her district hosts a
high number of strip malls.
4:46:13 PM
MS. MARTIN said the proposed bill would impact any locale where
smoking is currently permitted which is not a freestanding
building. While the proposed bill does not literally shut a
business down, the questions posed are complicated and require
further research.
REPRESENTATIVE FOSTER offered his understanding that malls
usually install heating, ventilation and air conditioning (HVAC)
systems which are not adequate, thus, the proposed amendment
requires a clear definition.
CHAIR SEATON directed attention to the committee packet and the
images showing the interiors of several vape shops. He
questioned whether any ventilation system would have a positive
effect on the conditions depicted. He said the proposed
amendment references both traditional cigarettes, as well as
vaping, and any common entrance with other businesses would be
problematic. He noted that there is enough information on
second hand smoke to identify this as a problem.
REPRESENTATIVE TALERICO expressed appreciation for the level of
concern for the business community. The bill is an attempt to
protect people in the work environment from second hand smoke.
It is questionable whether a ventilation system, recycling
inside air, could successfully protect occupants in a shared
building, he opined, and stated opposition for the proposed
amendment.
REPRESENTATIVE WOOL questioned the location and accuracy of the
images, as they appear to depict a "horrible second hand smoke
environment."
REPRESENTATIVE FOSTER offered that discussion on this point
could be continued in the next committee of referral, House
Judiciary Standing Committee, which may produce a more
supportable version of the bill.
CHAIR SEATON suggested that the House Judiciary Standing
Committee could best address the "grandfathering" issue.
4:53:25 PM
CHAIR SEATON maintained his objection.
4:53:33 PM
REPRESENTATIVE TARR agreed that the proposed amendment is beyond
the purview of the committee as it's not specific to the health
aspect. She expressed her concern with smoking in general and
its relationship to health, and said that this issue is worth
considering in order to avoid any unintended consequences and
legal challenges. She reiterated the relevance for these issues
in her district because of the prevalence of strip malls, and
their locations, and reminded the committee that it is better to
have an on-going business than a vacant store front. She
acknowledged that these issues could be addressed in the House
Judiciary Standing Committee.
4:55:00 PM
REPRESENTATIVE TARR withdrew proposed Amendment 6.
4:55:36 PM
REPRESENTATIVE WOOL directed attention to page 2, line 27, of
Version W, to ask about the required [smoking prohibition] 20
feet from a business entrance or 10 feet from the entrance to a
bar or restaurant. He offered an example of the difficulty to
find a smoking area when there is only a 20 foot distance
between doors, and asked if this could prohibit smoking anywhere
on a given length of sidewalk, possibly forcing a person to
smoke in the roadway.
MR. KOPP responded that the proposed bill fully aligns with the
Anchorage Smoke-Free ordinance. He acknowledged that the point
raised by Representative Wool is a judgement call that could
necessitate a walk to the other side of the street. The point
is to take it outside, he said, and suggested that there is
judgement in any enforcement action; this is a complaint driven
enforcement system with no active patrol; people smoking outside
are trying to comply.
CHAIR SEATON expressed interest in having the House Judiciary
Standing Committee also review this issue, pointing out that the
20 foot requirement includes maintaining a distance from any
window, heating, or air ventilation intake.
MR. KOPP explained that the distance notification is not
required if the property has otherwise been declared and posted
by the owner to be a smoke free campus. He acknowledged that
the required distance in front of a bar is only 10 feet, whereas
other work places are to adhere to the more significant 20 foot
allowance.
5:00:09 PM
REPRESENTATIVE VAZQUEZ asked if there is any scientific evidence
regarding the ill effects of e-cigarettes.
MR. KOPP directed attention to the committee packet, and the
document from the Alaska Division of Epidemiology, under the
Department of Health and Social Services, reporting on the harms
of e-cigarette use in Alaska; particularly the impact on youth.
The findings indicate a resurgence in nicotine addiction due to
the corresponding popular surge for the use of e-cigarettes,
which he characterized as a delivery device for smoking
anything. The numerous report attachments review the effects of
e-cigarettes, although the FDA has yet to issue a final
regulation. The previous decline in nicotine use by the young
populace, has been reversed by an explosive rise, which is
directly acquainted to e-cigarette advertising and use, he
finished. He clarified that the increased usage is for nicotine
as it is delivered via an e-cigarette device.
5:02:36 PM
REPRESENTATIVE TALERICO moved to report CSHB 328, Version 29-
LS1502\W, Martin, 3/18/16, as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
5:03:03 PM
REPRESENTATIVE VAZQUEZ objected and said that, as initially
proposed, the bill was supportable. However, on closer
scrutiny, and in its current version, it represents over reach,
she opined. She said that, although she has no problem with
prohibiting smoking in enclosed places, such as hospitals and
schools, she does object to prohibiting smoking in outdoor areas
and said that the 20 foot prohibition seems "to be a bit much."
Neither is there enough scientific evidence to include a ban on
e-cigarettes at this time, she finished.
5:04:48 PM
A roll call vote was taken. Representatives Talerico, Wool,
Tarr, Foster, and Seaton voted in favor of reporting CSHB 328,
Version 29-LS1502\W, Martin, 3/18/16, as amended, out of
committee. Representatives Vazquez voted against it.
Therefore, CSHB 328(HSS) was reported out of the House Health
and Social Services Standing Committee by a vote of 5-1.