Legislature(1997 - 1998)
04/28/1997 01:52 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SSHB 189 - RESTRICT TOBACCO SALES [Contains intermittent discussion of HB 79, SSHB 159 and the tobacco tax] Number 0144 CHAIRMAN GREEN announced the next item of business was Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." Number 0181 CASEY SULLIVAN, Legislative Administrative Assistant to Representative John Cowdery, presented the bill on behalf of the sponsor. He did not specify which version of the bill he was addressing. MR. SULLIVAN advised members that the legislation would accomplish three things: limit public access to tobacco products in retail premises; require employees to learn the relevant statute and sign an affidavit attesting to their understanding; and increase the penalties for selling tobacco to minors. MR. SULLIVAN discussed the three goals. He referred to page 2, line 7. He said first, the bill limits public access to tobacco products in retail premises so that only the sales clerk will have access to tobacco products prior to sale. This will ban self- service tobacco displays found today in many stores. Mr. Sullivan said that according to Americans for Nonsmokers' Rights, similar laws have been enacted already in 171 U.S. cities. MR. SULLIVAN said second, the bill requires employees to verify the age of people whom they believe to be less than 27 years old. Furthermore, retailers shall require their sales clerks to sign an affidavit stating that they understand that it is illegal to sell tobacco to those under the age of 19. He stated the belief that this will put more responsibility on retail employees. Number 0287 MR. SULLIVAN said third, there is a change in penalties. In current statute AS 11.76.100(2)(d), selling or giving tobacco to a minor is punishable by a fine of not less than $300. In this bill version, the fines are similar to those for contributing alcohol to a minor. A first violation is a class A misdemeanor, with a fine of not more than $5,000, as stated in AS 12.55.035(b)(3). If a second infraction occurs within five years, the person will be guilty of a class C felony, with a possible $50,000 fine under AS 12.55.035(b)(2). Mr. Sullivan said this will provide a financial incentive for the retail employers and employees to not sell tobacco to minors, as well as an incentive for law enforcement officials. Number 0362 REPRESENTATIVE ERIC CROFT asked whether the age had been changed back to 19. MR. SULLIVAN replied that the age limit had never changed in the sponsor substitute; it was still a minor under the age of 19. Number 0388 REPRESENTATIVE BUNDE asked whether someone selling tobacco must have a liquor license under this proposed legislation. MR. SULLIVAN replied, "That's a good question. It's not necessarily correct." He read from page 2, beginning at line 2 of CSSSHB 189(L&C), which states in part, "(g) A person may not sell cigarettes, cigars, tobacco, or a product containing tobacco unless (1) the person also holds a liquor license issued under AS 04.11.090, 04.11.110, or 04.11.150 and the sale occurs on the licensed premises, including sale by means of a vending machine under (b) of this section". MR. SULLIVAN noted that the proposed committee substitute that he had provided, version F, removed subsection (g)(1). He then stated that to sell tobacco, any retail shop must have a tobacco endorsement, to be purchased in addition to the business license. He believed the price of the endorsement would be $25. Number 0473 REPRESENTATIVE BUNDE stated his understanding that one would need a liquor license in addition to a tobacco endorsement. MR. SULLIVAN said that was incorrect. Number 0514 REPRESENTATIVE BUNDE noted that the penalty was being raised to a class C felony for a second offense, which he understood may involve jury trials and may have some impact on the court system. He asked whether there was a fiscal note from the court system. MR. SULLIVAN said no. Number 0551 CHAIRMAN GREEN asked, "So now, the fact that it is not required, we don't get into a restraint-of-trade problem, is that why it was removed?" MR. SULLIVAN said yes. Number 0568 REPRESENTATIVE NORMAN ROKEBERG stated his understanding that the basic intent is to have any retailer with a tobacco endorsement ensure that the merchandise is displayed in such a manner that it is not readily attainable or visible to people. He requested clarification. MR. SULLIVAN, noting that current self-service displays allow for shoplifting and easy access to tobacco products, said, "Our intent in this legislation is to remove self-service displays so that anyone who wishes to purchase any tobacco product will have to go through the clerk." Number 0701 REPRESENTATIVE CROFT asked which committee substitute they were using as a work draft. CHAIRMAN GREEN replied that they had not yet accepted one, although version B, CSSSHB 189(L&C), was before them. Number 0723 REPRESENTATIVE CROFT said to Mr. Sullivan, "The prior version, the Labor and Commerce version, did allow someone to sell if they had a liquor license, and that was enough. The new version wouldn't. Is that correct?" MR. SULLIVAN explained that the intent in the original version was to limit access to minors as much as possible, limiting it to places where minors cannot enter, such as establishments with liquor licenses. MR. SULLIVAN again read from page 2, beginning at line 2 of CSSSHB 189(L&C), subsection (g), noting that it related to Representative Bunde's question about liquor licenses. He said they had not felt it was a proper statement. Even though a person held a liquor license and the sale occurred on the licensed premises, that did not necessarily mean the person could sell tobacco because it did not state that the person had a tobacco endorsement. Therefore, they wanted to delete that. Number 0827 REPRESENTATIVE ROKEBERG made a motion to adopt as a work draft 0- LS0711\F, Ford, 4/21/97. There being no objection, version F was before the committee. Number 0856 REPRESENTATIVE ROKEBERG referred to Mr. Sullivan's memorandum attached to that work draft, which briefly discussed the differences between CSSSHB 189(L&C) (version B) and version F. He understood the memorandum to clarify that a liquor license holder merely has to purchase a tobacco sales endorsement; the language was being changed because it was redundant. The other section merely removes the effective date. Those are the only differences in the new version. MR. SULLIVAN affirmed that. CHAIRMAN GREEN requested clarification. Number 0903 REPRESENTATIVE ROKEBERG explained that the prior bill mentioned the liquor licensee. However, that is superfluous because this bill allows anyone who has a tobacco endorsement, as required under existing statute, to sell tobacco. It does not necessarily have anything to do with a liquor licensee, although such a licensee certainly would have the right to purchase a tobacco endorsement. CHAIRMAN GREEN asked whether that requirement was not in the bill that came before the House Labor and Commerce Standing Committee. Number 0951 REPRESENTATIVE ROKEBERG said no; it stipulated liquor licenses. He believed there was confusion because people had thought this bill restricted the marketing of tobacco products to licensed premises. However, that was not the case. Nor did he believe that had ever been the sponsor's intention. CHAIRMAN GREEN stated his understanding that it had now been corrected and no longer was part of the issue. MR. SULLIVAN affirmed that, saying it was a technical difficulty. Number 1024 REPRESENTATIVE ETHAN BERKOWITZ said he didn't see fiscal notes from the Public Defender Agency, the Department of Law or the Department of Corrections. He asked whether those were in progress. Number 1049 REPRESENTATIVE JOHN COWDERY, prime sponsor, apologized for being late. He advised members that he had requested information on the possible costs but had only received one response, pertaining to the prosecution of minors. He emphasized that this has nothing to do with prosecuting minors or incurring related costs; laws exist for that. This bill addresses and restricts the sale. Information he has gathered indicates it would be effective once people understand the penalties involved in selling the product. Number 1132 REPRESENTATIVE BERKOWITZ stated concern about the exchange of a cigarette, which constitutes a giving of tobacco, being prosecutable first as a misdemeanor and then as a felony. He said regardless of age, that would seem to apply. REPRESENTATIVE COWDERY responded that the object of the bill is to restrict the sale to minors; they had put in stiff penalties for that. He did not know how one would address a situation such as cigarettes being passed around or how fine a line to draw. He pointed out that penalties for a minor were in a different statute. Number 1205 CHAIRMAN GREEN asked: If this were to occur between minors a second time, how would it be treated? MR. SULLIVAN responded that the existing statute, AS 11.76.100, relates to someone who is not a minor selling or giving tobacco to a minor. Therefore, it is someone over the age of 19 selling or giving it to someone under the age of 19. He emphasized that they are aiming at retail premises where these products are sold. MR. SULLIVAN, in response to an earlier question by Representative Berkowitz, reported that they had received zero fiscal notes from the Department of Public Safety; the Office of Public Advocacy; and the Division of Occupational Licensing, Department of Commerce and Economic Development. He said those were the only ones the committees had requested thus far. Number 1251 REPRESENTATIVE BUNDE advised members that in tobacco-related discussions in other committees, some parents had indicated they give their children cigarettes if they so choose. He noted that under this legislation, a parent would be subject to a misdemeanor, for the first cigarette, and then a felony. MR. SULLIVAN concurred. He stated, "In contributing to the delinquency of [a] minor, there are certain establishments for things that happen in the home, giving alcohol and the like." He said they had explored that option, but it would probably be covered for someone in the home, under the supervision of an adult. Number 1297 REPRESENTATIVE BRIAN PORTER also apologized for being late. He said he noticed in all versions of the bill, the phrase "person under the age of 19" had been substituted for the word "minor". Stating his belief that those have the same meaning, he asked the reason for the change. MR. SULLIVAN replied, "I think merely a stylistic change, there, by the drafter, by Ford. It was not something that we requested specifically." Number 1334 REPRESENTATIVE PORTER asked whether currently a seller of tobacco must have a license. MR. SULLIVAN affirmed that. It is a tobacco endorsement, with different types for different establishments. For example, there is a $25 license for a retailer such as a small market, whereas for a liquor establishment with a vending machine, there is a separate tobacco endorsement license. REPRESENTATIVE PORTER asked whether any provision jeopardized that endorsement or license if someone violated this by selling to minors. MR. SULLIVAN said under this legislation, no. However, there are stipulations already in place. He referred to AS 43.70.075(d), which states, "If a person who holds an endorsement ... or an agent or an employee of a person who holds an endorsement ... has been convicted of violating AS 11.76.100 ..., the department may suspend the endorsement for a period of not more than (1) 45 days; or (2) 90 days, if within the past 24 months the person has been previously convicted ...." Mr. Sullivan commented that there is a pretty large financial problem for people who do that. Number 1411 REPRESENTATIVE PORTER requested discussion of the reason for requiring identification from persons who appear to be age 27 or younger, when the applicable age is 18 or younger. REPRESENTATIVE COWDERY recounted a recent observation of a clerk refusing to sell cigarettes to a young woman who appeared to be at least 19 but under the age of 27. He suggested this law must exist already, at least in local ordinance. Number 1495 REPRESENTATIVE BUNDE said federal regulations now require people who appear to be younger than 27 to provide identification. Number 1524 LOIS IRWIN testified via teleconference from Homer. Because of teleconference problems, she had missed most of the conversation and said she would just listen. However, she stated her full support for tobacco bills, "all of them, in one form or another." Number 1550 DELISA CULPEPPER, Alaska Public Health Association (APHA), testified via teleconference from Anchorage, stating that the APHA supports most of the provisions in this bill. In particular, they support limiting self-service tobacco displays to places with liquor licenses or other places where minors don't have access. She said many local and federal surveys show that shoplifting is a major way of obtaining cigarettes. This would help reduce access. MS. CULPEPPER discussed new federal regulations through the Food and Drug Administration (FDA). She believes regulations relating to checking identification for persons appearing to be under the age of 27 were enacted in February. She had seen signs about that in Anchorage already, where she believes people are well-informed about it. She said other regulations may be coming up in August, relating to limiting access to vending machines, for example; she believes those are still in question. MS. CULPEPPER said there is an advantage to having state laws that parallel federal regulations, to help with local enforcement. Anything the bill could do to encourage enforcement, not just having a law, would be useful. In some places in Alaska, local law enforcement officials have refused to do required federal compliance checks to see what level of availability there is for tobacco products. Currently, this bill does not address that. The APHA would like to see enforcement incentives and tools built in. Number 1693 JUDITH BENDERSKY testified via teleconference from Anchorage, saying she basically concurred with Ms. Culpepper's testimony. In addition, she was concerned about the requirement that clerks sign a form, a fairly brief statement that they understand the laws. Her concern is that it does not address a "more-rounded-out education package" that would really educate them about tobacco and the laws. She said ultimately, if there is no enforcement of that by either the employer or law enforcement officials, it would waste everyone's time. Number 1753 BLAIR McCUNE, Deputy Director, Public Defender Agency, Department of Administration, testified via teleconference from Anchorage, specifying that he would address the penalty section, the only part that would affect his agency's case load or operations. MR. McCUNE reported that they had not yet put in a fiscal note. He had asked the Department of Law whether they had figures regarding the number of prosecutions they might expect; if his agency could obtain that information, they could prepare a fiscal note. However, if the Department of Law has no figures on anticipated prosecutions, the Public Defender Agency would likewise not anticipate defending such cases. Number 1787 MR. McCUNE noted that the penalties are fairly severe. He said he is a little unsure whether this is directed at people who sell tobacco in retail operations or people who might just be giving tobacco products to a minor. He believes as it is currently written, it would apply to somebody who exchanges or gives tobacco; that could be quite a few cases if the law is prosecuted. MR. McCUNE referred to an earlier analogy made to furnishing alcohol to a minor and said, "That statute, which is Alaska Statute 04.16.051, has exceptions for parents and guardians. And it's also been on the books since 1980, and I believe quite a bit before that. ... This type of law is well-known to the public. One of the problems we get is that ignorance of the law is no excuse. If you're going to make giving tobacco products to a minor, other than through a retail situation, this serious a crime, I think that you'd have to have some kind of notice to the public or else we'd get a lot of cases where people wouldn't know the conduct was illegal and yet be subject to a prosecution without a defense on that basis." Number 1870 CHAIRMAN GREEN said he imagined there would be some notification. He asked whether Mr. McCune believed the penalties may be too severe for the crime or that the courts may hold that they are too severe. MR. McCUNE said he believed that the penalty being too severe for the crime only comes into play when there is cruel and unusual punishment or violation of the due-process clause of the federal or state constitution. In his experience as a lawyer, it is fairly rare that the courts will try to second-guess the legislature and say that penalties are too severe for a crime. Although that might come up if the legislative history shows a lot of concern about this matter, Mr. McCune does not believe the courts will step in and use these constitutional provisions to strike it down. Number 1942 RUTH PARRIOTT, American Cancer Society, came forward to testify, stating that she is a tobacco policy specialist and "government relations person" for that organization. She reported that one- third of all cancers are caused by tobacco use and 90 percent of tobacco users begin as children. The American Cancer Society is particularly pleased to see the clear self-service ban outlined in the bill. She said that has proven to be effective in certain cities and that stores which do not allow self-service are far less likely to sell to minors. MS. PARRIOTT said along with "carding" people who appear to be under age 27, these are provisions covered by the FDA rule mentioned earlier. She explained, "That was a federal rule that's being put into effect this year. The carding went into effect in February. The self-service ban will go into effect in August. That was just upheld by a judge in North Carolina last week; you may have heard that. And, may I say, if a judge in North Carolina upheld those rules, we're pretty safe, all the way to the supreme court. So, I believe ... those will stand across the country. And the American Cancer Society does recommend that states take similar action to remain in parallel with the federal statute. So, I'm pleased to see all that." MS. PARRIOTT cautioned about the need to keep working on these issues in terms of enforcement. She stated, "There's been concerns all across the state that the laws that have been on the books for years have not been consistently enforced. And without some sort of mechanism that encourages local law enforcement and provides the resources to local enforcement, I'm not sure if we're going to see a change in that. And that would be our major concern, and we would encourage the legislature to keep working on that issue." Number 2038 CHAIRMAN GREEN asked what Ms. Parriott's understanding was of the penalty for violating the federal carding law. MS. PARRIOTT replied, "I believe it can go up to $500." Number 2047 REPRESENTATIVE BUNDE commented that a federal requirement that prohibits self-service will go into effect shortly. He suggested this bill would simply parallel what the federal regulations are about to achieve. MS. PARRIOTT responded, "I believe the way this new version F is written may actually go a bit beyond the federal rule, in that the federal rule, I believe, will allow self-service in places where people under the age of 21 are not allowed. Certain bars and clubs, is the way the federal rule is written, and Representative Cowdery's F version doesn't deal with that special exception ...." Number 2085 ROSANNE TURNER, Member, Advisory Board on Alcoholism and Drug Abuse, came forward to testify, saying this is a highly important issue. In the last few years, she has devoted her career to working with children and families. She said this looks at the needs of children and she would address it from that point of view. MS. TURNER advised members that she works for the Head Start program. Staff had informed her recently that a six-year-old was suspended from school because of smoking; however, the retailer was not punished. Ms. Turner travels to bush communities regularly and sees smokeless tobacco accessed by numerous children. She stated, "I know that we've seen and are working on a proposal for smoke cessation for children starting at three and up. I think that's a criminal act, that we have to begin starting cessation for children at that age. I think there are children who are role-modeling for children. And children who are chewing smokeless tobacco are chewing it just like they would chewing gum, which is a behavior pattern that they start building as babies." MS. TURNER said that "if we can prevent this from happening before that child reaches 19 years old, the likelihood that they will continue to use any toxic tobacco, the likelihood [is] as an adult it will not affect them. I think those are the kinds of real figures that we need to look at, the health and safety of our children." MS. TURNER thanked legislators for bringing forward not only SSHB 189 but also HB 79 and SSHB 159, saying they truly speak about the children and what the Alaska community needs to do. Number 2243 REPRESENTATIVE BUNDE asked, if these enforcement bills passed, whether Ms. Turner believed that would be enough to prevent young people from beginning to smoke. MS. TURNER replied that she believed it should be approached from that angle. However, some current statutes are not being enforced. Number 2280 CHAIRMAN GREEN asked whether Ms. Turner believed this would provide a deterrent to either adults buying tobacco products for children or to family members giving them to children. MS. TURNER stated her belief in the need to give strong messages to people and in the importance of role-modeling. Number 2325 REPRESENTATIVE BERKOWITZ asked whether Ms. Turner believed that also putting a tobacco tax in place would enhance enforcement. MS. TURNER referred to HB 79 and said she really likes that it addresses local control. She stated that tax on tobacco is also a deterrent. "Yes is the answer," she concluded. Number 2361 LOREN JONES, Director, Division of Alcoholism and Drug Abuse, Department of Health and Social Services, advised members that particular provisions of the bill appeal to the division in the sense that it raises the penalty against the vendor. He believes enforcement is an appropriate part of the process to limit access and use by youth. However, without the increased tax (proposed in other legislation), the increased penalties in these bills will not have the effect desired by the sponsor or the division. MR. JONES expressed concern that there does not appear to be a credible look at how this would be enforced. Local law enforcement has many higher priorities. Mr. Jones said he could understand some of the concern about whether the Department of Law or the Public Defender Agency had a fiscal note, because in Alaska, they can find no record of a conviction for selling. Mr. Jones specified, "To our knowledge, no vendor has ever been convicted of selling tobacco to a person under the age of 19." Number 2421 MR. JONES referred to an earlier question by Representative Porter and said it is true that there is a penalty against the license endorsement. However, in order for that to be enforced, there must be a conviction under the criminal statute, and it is a cumbersome process. Those like himself who have worked for alcohol-related and other criminal deterrents understand that in order for a deterrent to be effective, there must be a perception that the person who perpetrates the crime will be caught and that the penalty will be swift and severe enough. But there is no such public perception today. TAPE 97-68, SIDE B Number 0006 MR. JONES emphasized that passing a law that increases penalties certainly has its place. However, without credible enforcement activity, the division believes that the benefits from that change will not occur. Number 0020 CHAIRMAN GREEN asked whether Mr. Jones agreed with Ms. Turner that the tobacco tax would complement this as a deterrent. MR. JONES stated, "I believe that the tax will have the most benefit." Number 0035 REPRESENTATIVE JEANNETTE JAMES asked how these violations would be brought to the proper authority's attention. For example, under this language, would a person file a complaint in order to bring the issue before the courts? Or would a police officer or other authorized person have to catch a violator in the act? She suggested vending machine violations may be easier to observe than sales to persons under the age of 19. MR. JONES replied, "The easiest way is if a police officer observed the sale. That way, the officer could give the citation or make the arrest. Absent that, not being an attorney, I believe that if a complaint were made, say, by the parent of a child that such-and- such a store -- given the penalties, I'm not exactly sure of the process. If they thought it was a felony, I believe that that has to go before a grand jury if it's not observed by a police officer." MR. JONES continued, "One of the concerns that we have had in this whole process is that sales is a difficult thing to observe. Police officers can be near a school. Police officers can see a youth walking down the street. A police officer can stop a youth for some other potential violation and see that they have tobacco. And that's easily done. For a police officer to observe a sale in a grocery store, observe a sale in a gas station, is a much more difficult process and requires some effort on their part. And that effort, in most communities, has not been forthcoming." He suggested the Department of Law may have a better answer. Number 0140 ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, came forward to testify, saying she had intended to discuss only the penalty phase but would answer other questions if she could. MS. CARPENETI explained that currently, furnishing tobacco to a minor is a violation under AS 11.76.100. The culpable mental state is negligence, which is unusual for a Title 11 provision. "And it's there now because right now it's a violation, and you don't need to have a culpable mental state for a violation," she explained. "But if you raise the penalty to an A misdemeanor or a ... C felony, you'll need to change the culpable mental state in order to prosecute it, or ... you'll find that you'll have due process and constitutional problems with the substantive provision." CHAIRMAN GREEN asked: "We cannot go to that high a penalty without making it a tort of intent, or a violation?" MS. CARPENETI replied, "Well, it doesn't necessarily have to be intent, but for most crimes, recklessness is the common culpable mental state, is the lowest. You can also go to knowing or intentional. ... But mere negligence will not do it. There are some provisions in our criminal code that provide a culpable mental state of criminal negligence; there are very few in the criminal code." Number 0195 REPRESENTATIVE BUNDE discussed an incident involving a constituent whose son had purchased tobacco at a quick-stop grocery store. The mother was upset and telephoned the police twice. However, the police said they had not witnessed it and could do nothing about it. The woman then offered to have another son make a purchase there and videotape it for evidence, but the police responded that if she did that, her son would be charged with possession and she would be charged with contributing to delinquency. She had asked, then, why the police didn't do a sting operation employing young people to make controlled buys. However, in this case, the Anchorage police believed that state law did not allow that. REPRESENTATIVE BUNDE asked: Would this bill allow compliance checks? MS. CARPENETI replied that she did not believe SSHB 189, in its current form, would allow children to participate with the police in a sting operation. "Specifically, other bills that are before you do that," she added. Number 0249 REPRESENTATIVE BUNDE noted that testimony indicated there had been no enforcement. He asked, with this increased state of culpability, whether it would be more difficult to enforce this law than existing law. MS. CARPENETI replied that the higher the culpable mental state that the state is required to establish, the more difficult it is to establish its case in chief. Negligence is the easiest culpable mental state for the state to prove. Number 0278 REPRESENTATIVE BUNDE commented, "Obviously, you can't get below zero in enforcement anyway." He asked what the fiscal impact of this bill would be on the Criminal Division. MS. CARPENETI responded that it was difficult to put a price on this particular bill because they had no history upon which to base it. Noting that Mr. Jones had said there had been no convictions, Ms. Carpeneti advised members, "I don't know that there have been any prosecutions for the offense. So, there hasn't been much enforcement to tie a fiscal price to." Number 0299 CHAIRMAN GREEN said there had been discussion that perhaps this would incur a fiscal note through the prosecution aspect, whereas other comments had indicated that because the penalty is so stiff, people would be highly reticent to violate it and, thus, there would be no large increase in the court load. He asked whether Ms. Carpeneti had a feel for that, one way or the other. MS. CARPENETI stated, "Well, I would hope that vendors would take it seriously at a higher level of offense and be more careful not to violate the law. But that's the best I can do." Number 0342 JOAN HAMILTON testified via teleconference from Bethel, specifying that she was speaking as a parent. She pointed out that in SSHB 159, HB 79 and SSHB 189, there is a discrepancy regarding age. She referred to HB 79 and SSHB 189 and stated that one bill says, "under the age of 19," and the other says, "19 and over." On the other hand, SSHB 159 says, "under 21." She suggested these should be corrected to make the three more compatible. MS. HAMILTON said she has an 18-year-old son who started smoking cigarettes the previous year. He had told her that people his age buy cigarettes from the Snack Shack (ph), ordering items to go and then ordering cigarettes. "And Snack Shack would deliver the cigarettes," Ms. Hamilton said. "I spoke to the Snack Shack themselves; they denied it. And then I went to the Korean community and they said they would talk about it. And ... I went to them at least three times, trying to get them to talk to this gentleman, because when I tried to talk to him, he didn't speak English." MS. HAMILTON continued, "So, my son offered to tell the police where he got the cigarettes and how they bought them. They came to the house. My son was cited for possessing cigarettes. And the Snack Shack never got visited by the police, that I know of, because I've checked up on it. And what Mr. Jones said, it's true. I don't think they go after the vendors." MS. HAMILTON concluded, "We, as parents, are trying to teach good habits in our teenagers. But when we report something to the police, we don't really need to have our children get hauled off to court for possession of cigarettes. And I think, as a parent, the more taxes you put on tobacco products, the better." Ms. Hamilton urged prosecution of the vendors. Number 0509 CHAIRMAN GREEN announced that public testimony was closed. Number 0515 REPRESENTATIVE PORTER made a motion to amend the bill by adding a new section that would change AS 11.76.100(a)(1) by deleting the word "negligently" and inserting the word "recklessly". He noted that committee packets contained that statute. The new section would include all of that wording but change "negligently" to "recklessly", so as to meet the standard necessary for a criminal misdemeanor and felony. CHAIRMAN GREEN asked whether there were comments or questions. He called a brief at-ease at 2:54 p.m. and called the meeting back to order at 2:55 p.m. Number 0574 REPRESENTATIVE PORTER stated, "I guess for clarification, if this bill left in place a violation of some nature, in this section, I would want to leave `negligently' for that purpose and put `recklessly' for the criminal offenses. But it's my understanding, unless I'm mistaken, that the bill eliminates the violations and establishes a first-offense class A misdemeanor and a second- offense class C felony. So, to the extent that that is true, I think `recklessly' would be the standard for both of those -- should be the standard." Number 0601 REPRESENTATIVE BUNDE suggested that because there were three bills scheduled regarding tobacco, they might hear all three before making changes. CHAIRMAN GREEN said that was a good suggestion. However, an amendment had been proposed. Number 0625 REPRESENTATIVE PORTER stated that to make this bill internally consistent, regardless of what they ultimately decided to do with it, he believed the amendment was appropriate. CHAIRMAN GREEN asked whether there was an objection to the amendment. REPRESENTATIVE BERKOWITZ objected. CHAIRMAN GREEN requested a roll call vote. Voting for the amendment were Representatives Porter, James and Green. Voting against it were Representatives Bunde, Croft and Berkowitz. Representative Rokeberg was absent. Therefore, the amendment failed, 3 to 3. CHAIRMAN GREEN asked whether Representative Bunde's earlier suggestion was a recommendation. REPRESENTATIVE BUNDE said yes. CHAIRMAN GREEN asked whether there was any objection to setting the bill aside until after all three tobacco-related bills were heard. There being none, SSHB 189 was temporarily tabled. HB 79 - MINOR IN POSSESSION OF TOBACCO [Contains intermittent discussion of SSHB 189, SSHB 159 and tobacco tax; HB 79, SSHB 189 and SSHB 159 assigned to subcommittee following testimony] Number 0756 CHAIRMAN GREEN announced the committee would next hear House Bill No. 79, "An Act relating to the offense of possession of tobacco by a person under 19 years of age." Number 0768 REPRESENTATIVE BUNDE, prime sponsor, explained that this bill had gone through the House the previous year but "got slowed down on the other end." He read from portions of the sponsor statement for CSHB 79(STA), with additional comments: "House Bill 79 adds stronger requirements, restrictions and prohibitions on the sale of cigarettes and tobacco products to minors. This proposed legislation does some of the same things as the other two bills, but I'll try to highlight the differences. "This restricts the placement of vending machines and requires stricter supervision of vending machines. It prohibits the sale of cigarettes in packs of fewer than 20. And, Mr. Chairman, it came as a surprise to me that there are actually places where they sell single cigarettes. And that apparently is a place where young people, price-sensitive that they are, do buy cigarettes. "It requires all cigarettes and tobacco products to be placed in areas accessible only to employees, as [SSHB] 189 does, and meets compliance with federal law. It requires employers to get training before they are allowed to sell tobacco or to renew their tobacco endorsement on business licenses. Retailers must pay the cost of their training and that of their employees. "It enables the state to be in compliance with the federal Synar amendment, which basically allows compliance checks or sting operations for the sale of tobacco to minors. ... It raises the cost of a license endorsement to sell tobacco and requires that each store selling tobacco ... purchase an endorsement. "It imposes a $300 fine on minors convicted of possession of tobacco. It adds an anti-preemption provision to prevent tobacco companies from preempting local governments' authority to tax tobacco products or extend programs to limit youth access to tobacco. It raises penalties for retailers convicted of selling the product to minors. I'd point out that this aligns with both sides of the equation. "It prohibits the sale of tobacco in any form unless they're carded for the `under 27.' It requires money collected from license endorsement fees to be placed in a general fund. The legislature may, then, appropriate for grants to support enforcement programs to decrease youths' access to tobacco. It creates the crime relating to the use of false identification for the purpose of purchasing tobacco. "[HB] 79 makes retailers accountable for sales of tobacco to minors. However, obviously, the effect of this legislation, or any enforcement legislation, will be minimal without the cooperation of parents who enable illegal behavior and without the cooperation of enforcement officials, which has certainly been discussed before." Number 0921 REPRESENTATIVE CROFT requested an explanation of the vending machine provision, suggesting it is not an outright ban but a restriction on where a vending machine can be placed. REPRESENTATIVE BUNDE replied, "It is. And for the exact location, it has to be more than 10 feet from the door and where they can be supervised by people working in the store, ... as long as it's physically possible. That exception was for the small rural outlets where there may not be 10 feet from front to back." Number 0960 PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde, explained that a vending machine must be placed at least 10 feet away from an entrance or an exit to a premises that the public may use. She stated, "We didn't do a specific rural exception. When we first started the bill, it was 25 feet from an entrance and an exit, and that was thought to be too harsh because a lot of buildings in Alaska are too small. So, we lowered it to 10 feet. And it has to be placed in direct and continuous vision of an adult, somebody to supervise it." Number 0989 REPRESENTATIVE PORTER commented that currently, the law prohibits vending machines except at a place that sells liquor or on private property. MS. SWENSON concurred. Number 1003 REPRESENTATIVE JAMES asked whether this removed from the existing statute the ability to have vending machines in break rooms. MS. SWENSON explained that originally, they had placed a restriction on the age of those who could be in a break room when a vending machine was present. There was no longer that restriction. The vending machine may be in the break room, but it has to be supervised. Number 1051 DELISA CULPEPPER, Alaska Public Health Association (APHA), testified again via teleconference from Anchorage. She said several parts of this bill relate to public health, including the prohibition of sale of loose cigarettes. She noted that there are places in Alaska, including Anchorage, where that is already prohibited. She believes having a state law will help for enforcement purposes. She said it is a lucrative practice, often done in order to sell to minors because of the price. MS. CULPEPPER stated support for the anti-preemption language; she believes a local area should have the right to enact its own tax on tobacco. The APHA is also pleased with provisions relating to the FDA "under 27" requirements, as well as the establishment of training standards for licensees and education of the merchants on an ongoing basis, because there is a lot of turnover and the employees need to be aware of the law. MS. CULPEPPER concluded by encouraging a close look at this bill for enforcement tools and keeping some of the good provisions, which she believes are very strong. Number 1134 JUDITH BENDERSKY testified again via teleconference from Anchorage, noting the complexity of the issue. A public health educator, she has traveled throughout Alaska, including to many rural areas. Ms. Bendersky said as a teenager, she had started smoking one or two cigarettes at a time. She stated, "If you go to just about any village store and ask for a `loosie,' meaning a loose cigarette, you may not see it from ... the customers' side of the cash register, but there's usually a Styrofoam cup with the contents of a cigarette package which has been opened. And you can usually buy a `loosie' for 10 or 15 cents. And so, I very strongly support the prohibition." MS. BENDERSKY asked whether there was any prohibition of distributing small amounts of chewing tobacco, which she described as "a real scourge in rural Alaska." MS. BENDERSKY concluded by saying there are strong points in this bill. For example, she believes it is a good idea to have merchants "count the costs, so to speak, of being licensed every two years and having some merchant education in the form of training standards." She stated that education is an "important piece of this tobacco puzzle," as important as pricing. She recommended somehow merging the high points of the three bills (HB 79, SSHB 189 and SSHB 159). Number 1244 REPRESENTATIVE BUNDE responded that this was the first he had heard of loose chewing tobacco being distributed and it boggles the mind. This bill does not address that. He said further research could be done if it seemed to be a significant concern. LOIS IRWIN testified again via teleconference from Homer, saying she supported what the previous speakers had said; those were some of the major areas she would endorse, such as stopping the sale of "loosies" and generally having better control. When asked, she said she was talking about all three bills. CHAIRMAN GREEN asked whether Ms. Irwin had any testimony on HB 79. MS. IRWIN stated, "It's a good bill and I could certainly support it." Number 1359 ANNETTE MARLEY, Youth Project Coordinator, Trampling Tobacco, Alaska Native Health Board, testified via teleconference from Anchorage, specifying that she coordinates the "tobacco prevention projects review" for the board. She thanked Representative Bunde for being so responsive to public concern and opinion about tobacco issues in Alaska, as reflected in this bill and HB 1, relating to the tobacco tax increase. MS. MARLEY said in her work at the board, she was involved with numerous studies and reports prepared by researchers and expert panels on how to best reduce the rates of nicotine addiction among youth. Her comments would reflect what she had learned from all these sources, as well as from her own experience in Alaska. Number 1404 MS. MARLEY said the most noteworthy provision of HB 79 allows youth to participate with enforcement officials to carry out compliance checks and sting operations to crack down on merchants who sell tobacco to minors. She believes it is definitely a step in the right direction but should go further, requiring compliance checks and ensuring funds for enforcement. Ms. Marley said studies show that without vigorous and ongoing enforcement of youth access laws, many stores will continue to sell to minors; the youths will learn which stores those are. As currently drafted, HB 79 will not fix that problem. MS. MARLEY said other provisions, which further restrict vending machine locations, ban self-service displays of tobacco products and prohibit sales of loose cigarettes, are "worthwhile steps to change." However, the FDA regulations scheduled to take effect in late August will do the same things, and she believes these provisions in HB 79 will be redundant. Nonetheless, she said the bill is not a bad idea and provides back-up for the FDA regulations. Number 1562 MS. MARLEY stated that the most important part of the bill with which she disagrees is the penalty for youths convicted of possession of tobacco. Studies indicate this is not an effective way to reduce tobacco use by youth. MS. MARLEY quoted from the Institute of Medicine's committee on preventing nicotine addiction in children and youth, saying, "The committee believes that penalizing minors is an unwise and ineffective strategy. Criminal sanctions or delinquency adjudications are grossly disproportionate to the seriousness of the offense and would not be sought by prosecutors or imposed by judges. Even if the offense was punishable with a civil fine, like a traffic ticket, the penalty would rarely be enforced. Indeed, Alaska's existing youth possession law is rarely enforced. Calling for tougher penalties is not likely to change that." The report continued. Ms. Marley pointed out that the tobacco industry has no problem with laws that punish kids. MS. MARLEY concluded by saying there are many good things about this bill that deserve serious consideration. Their one significant concern is that it could be viewed by some legislators as an alternative to the tobacco tax increase. She said it has been proven that the tobacco tax works to prevent nicotine addiction. Number 1604 BRIANA WILLIAMS testified via teleconference from Anchorage. An eleventh-grader at Dimond High School, she has participated in a program that teaches grade school children about the dangers of tobacco and the ways in which tobacco companies target youth. They had studied how to discourage youths from using tobacco and how to make access to cigarettes and "chew" more difficult for them. MS. WILLIAMS believes one effective aspect of the bill would be keeping all cigarettes and chewing tobacco behind the counter where only the clerks would have access, thereby eliminating shoplifting and requiring more "guts" for underage persons to specifically ask for cigarettes. However, she was unsure whether increasing the fines for either youths or those selling tobacco products would be effective. Right now, the laws are not being enforced. Until there is some way of enforcing such laws, she does not see how increasing the penalties will have any effect, as kids and adults ignore laws when they know they will never get caught. MS. WILLIAMS said her group had carefully studied the tobacco tax increase. They had concluded that to reduce smoking by teenagers, it was most important to increase the tobacco tax. Number 1699 JAY HERMANSON, American Lung Association of Alaska, testified via teleconference from Anchorage. He said HB 79 looks comprehensively at the problems, an approach his association appreciates. He noted that HB 79 brings Alaska into alignment with some of the FDA regulations designed to reduce easy access to tobacco by children, such as the elimination of so-called "loosies," which are single cigarettes, and "kiddie packs," which are packages of less than 20 cigarettes. His association strongly supports these measures. MR. HERMANSON said HB 79 takes a step in the right direction in Section 3, which specifically allows minors to work with police officers in conducting compliance checks on tobacco retailers. However, there is still a lack of dedicated law enforcement resources and a standardized program of compliance checks to effectively enforce the tobacco sales law. Without such encouragement from policy-makers, he is concerned that the stricter penalties for violators will never be implemented. Number 1811 REPRESENTATIVE BUNDE pointed out that HB 79 has a positive fiscal note. It will generate income that will be used for educational purposes and compliance. He noted that the clerks will have to take various classes to ensure that they understand the law and how to comply with it. "So, I think in viewing enforcement from that angle, this bill does provide some money," he added. Number 1843 MS. SWENSON advised members that this also allows excess funds to be set aside and appropriated by the legislature for enforcement, should the legislature wish to do so, and it encourages that. The positive fiscal note is for 181.2 thousand dollars. Number 1878 RUTH PARRIOTT, American Cancer Society, again came forward to testify, saying that sampling of "spit tobacco," a common practice across the country at sporting events, will be covered by the FDA regulations going into effect in August. Usually such samples are given away for free, because the tobacco is too hard to split up in a store and sell for 25 cents. MS. PARRIOTT said that once again, the American Cancer Society would support the prohibition on "loosies" and "kiddie packs," as well as elimination of self-service displays and the requirement for identification if the purchaser looks younger than 27. "All those things would bring us into compliance with FDA," she added. MS. PARRIOTT pointed out that in the vending machine restrictions, the FDA goes further, not allowing them in private work places. She said it may be necessary, as of August of this year, "to come into compliance, in terms of the state of Alaska." Number 1955 MS. PARRIOTT suggested that instead of the wording, "may be appropriated to municipal law enforcement" for license fees, that there should be a direct turnaround to municipal law enforcement. CHAIRMAN GREEN replied that although it was a great idea, unfortunately, they could not do that. MS. PARRIOTT responded that "may be" with a strong recommendation would be good. Although studies show that youth access to tobacco really is limited when local law enforcement gets involved, that enforcement doesn't occur without money. Number 1993 REPRESENTATIVE JAMES said this allows localities to impose a tax. She asked whether that would be of any benefit. MS. PARRIOTT said that would increase the price of tobacco and encourage enforcement at the local level, which would be a win/win situation, assuming it would not eliminate the movement towards a state tax. Number 2051 LOREN JONES, Director, Division of Alcoholism and Drug Abuse, Department of Health and Social Services, again came forward, stating that he did not want to repeat his testimony and therefore would say "ditto" to much of his testimony on SSHB 189. MR. JONES encouraged the committee to look closely at the three bills (HB 79, SSHB 189 and SSHB 159), stating that the issue is important and complex. There are different ways to deter use and to ensure enforcement; these bills take different tactics to somewhat get to the same place. MR. JONES stated, "Representative Porter's amendment on one section, in another bill, that whole section's repealed and reenacted. Both bills set aside revenues for enforcement, but the revenue sources are different places. Neither bill directly says to an agency, `You will use this money,' or, `You will be the ones that will try to do the enforcement,' or, `You are the ones that will take this money and put together a program.' I think that the committee should look closely at who they might think is the appropriate agency to do that." MR. JONES continued, "To have a credible enforcement effort, you need to have some person or agency that's in charge. And I would just encourage you to consider the testimony given today, and to consider these three bills, and to look at those conflicting and try to come out with ... the best we can, if it's your desire to do so." Number 2193 CATHERINE REARDON, Director, Division of Occupational Licensing, Department of Commerce and Economic Development (DCED), explained that her division issues the business licenses to which tobacco endorsements are attached for tobacco sales, mentioned during testimony on SSHB 189. She pointed out that the division's fiscal note showed increased revenue from raising the fee from $25 to $100 for tobacco endorsements. MS. REARDON explained that there would be a much larger revenue increase than under SSHB 159 because each retail establishment is required to have a separate endorsement under HB 79. Currently, a person obtains one business license for all of his or her establishments in the state. For example, all 7-Elevens in Alaska would have one business license and one tobacco endorsement. Under HB 79, each one would require a separate tobacco endorsement and a fee of $100. Therefore, more revenue would come in. "That's why, of all the bills, this is the only one that generates revenue for use in enforcement," Ms. Reardon added. Number 2280 MS. REARDON read from page 9, beginning at line 8 of CSHB 79(STA), subsection (b). She noted that "money collected by the department" refers to the DCED. She said she understood that the intention is to make grants to local law enforcement, for example, depending on what the legislature did. MS. REARDON said the fiscal note is not a large amount of money, around $100,000. Referring to earlier testimony, she said it doesn't matter what the punishment is if no one is ever convicted, which has been the situation thus far. MS. REARDON noted that under current law, if a person is convicted, the DCED is supposed to take away that person's tobacco endorsement for a set amount of time. She stated, "We have never taken away the tobacco endorsement because no one has ever been convicted. ... And unless there's some enforcement money, I don't think anyone's going to be convicted." MS. REARDON pointed out that if there were convictions and she started taking away tobacco endorsements, there is currently no enforcement staff within her division to do that, because to date, the purpose of the tobacco endorsement has been revenue-raising, just bringing in money for the general fund. MS. REARDON explained, "We have never gone out and charged anyone with a misdemeanor for selling tobacco without an endorsement or, for that matter, for operating a business without a business license, because all we do is we write to someone and say, `Give us $50 for the business license or give us $25 for the tobacco endorsement; you're breaking the law.' And when that's all that's at stake, generally they pony up. And is it worth it, if they don't, to go to court for twenty-five dollars' gain to the state?" TAPE 97-69, SIDE A Number 0006 [begins mid-speech] MS. REARDON said, "... and they aren't represented here at the table. If somehow money can get to them, I think that's where you might see some reduction in ... youth access to tobacco." MS. REARDON stated, "Under this bill, the Division of Occupational Licensing is also responsible for conducting the courses for tobacco endorsees in how to legally sell tobacco. The intention that the fiscal note is based on is that we would do this through a correspondence system, much like qualifying to be a notary public. We send you the booklet explaining the laws; you fill out the test in the back and mail it in." MS. REARDON explained that they would not conduct workshops all over the state because of the cost. However, she believes there will be a positive effect from people having to take time to read the booklet and answer questions regarding the law about selling tobacco. The business license holder would complete the test. For a department store chain, for example, the owners would be expected to do it. MS. REARDON expressed appreciation for the willingness of Representative Bunde and his staff to work with the division to adjust the bill so that it would work as efficiently as possible for them. Number 0132 MS. REARDON said one last strength of this bill is that it eliminates the necessity for a second hearing if a person is convicted of selling tobacco to a minor. Once the DCED learns of such a conviction, they must automatically suspend that person's tobacco endorsement, without a second due-process hearing. She explained, "That is why you don't see the same costs for hearings that you see in House Bill 159. And also, I think it will be a more certain and rapid reaction, which I think will be pleasing to everyone." MS. REARDON concluded, "From the parts that affect the division, it's the strongest of the three bills." Number 0221 REPRESENTATIVE PORTER stated his understanding that there would be a "correspondence course" mailed to the business itself, which would be responsible for applying it to their individual employees and somehow verifying that to the division annually, for example. MS. REARDON replied, "My understanding is that only the business license holder has to complete the course. They'd then be responsible, of course, for making sure that their employees don't break the law." REPRESENTATIVE PORTER read from page 8 of CSHB 79(STA), beginning at line 26, and said he did not know whether specific wording indicated that a person selling tobacco products must take this course. Number 0303 MS. CARPENETI responded that she thought that was what was intended, by speaking with Ms. Reardon, although perhaps it did not express it. MS. REARDON said she had discussed it with Ms. Swenson; they had felt confident that the definition of "persons engaged in the sale of products containing tobacco" just referred to the business. Number 0406 MS. CARPENETI pointed out that "person" is defined, at least in this bill for purposes of AS 11.76, on page 4. She said it is given the meaning in Title 11. Number 0418 MS. REARDON referred to page 8, line 7, and responded that AS 43.70, under which this falls, refers to a person engaged in the retail business of selling a tobacco product. She stated, "That's that same person we were talking about. So, we thought that since that meant the endorsee, every time it said `a person engaged,' it was meaning that same person." She suggested if the bills were to be held, perhaps they could get a better answer. Number 0457 MS. SWENSON explained that the intention is that the retailer, the owner of the shop itself, must take the course and be responsible to get the information to all the other people. Number 0520 CHAIRMAN GREEN asked whether there were other comments or questions about HB 79. CHAIRMAN GREEN assigned HB 79, SSHB 189 and SSHB 159 to a subcommittee consisting of Representatives James, Bunde and Berkowitz, to be chaired by Representative James. He asked that they look at how the bills do or do not work together.
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