Legislature(2017 - 2018)GRUENBERG 120
01/24/2018 01:00 PM JUDICIARY
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SB 63-REGULATION OF SMOKING 1:01:42 PM CHAIR CLAMAN announced that the first order of business would be CS FOR SENATE BILL NO. 63(FIN), "An Act prohibiting smoking in certain places; relating to education on the smoking prohibition; and providing for an effective date." [Before the committee was HCS CSSB 63(CRA).] 1:02:26 PM CHAIR CLAMAN, in response to a query from Representative Eastman, reminded the committee that public testimony on HCS CSSB 63(CRA) had been closed during the last scheduled hearing on 1/22/18. 1:02:54 PM SENATOR MICCICHE, Alaska State Legislature, as prime sponsor of SB 63, referred to information on veterans' clubs, which he had forwarded to the committee following the 1/22/18 hearing. He commented that many grew up during a time when there was secondhand smoking in the house or in a car with the windows closed. He quoted from a USA Today article, dated 3/9/14, which stated that during the Korean and Vietnam Wars, soldiers received cigarettes with their field rations, and that changed in 1986 when the Pentagon banned use of tobacco and increased the number of designated nonsmoking areas. Senator Micciche said "things have changed," and CSSB 63(FIN) "brings us into that modern age of protecting those that choose to not smoke and protecting their rights to breathe smoke-free air." He expressed appreciation for the efforts of the committee on the proposed legislation. 1:04:46 PM CHAIR CLAMAN said the committee would consider amendments, and he advised that Legislative Legal and Research Services would have permission to make any technical and conforming changes to any amendments adopted by the committee. He outlined a plan for the timing he would allow for addressing amendments. 1:05:25 PM REPRESENTATIVE KOPP moved to adopt Amendment 1, labeled 30- LS0024\T.4, Martin, 1/22/18, which read as follows: Page 4, lines 2 - 5: Delete all material and insert: "(e) 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-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." 1:05:28 PM REPRESENTATIVE FANSLER objected. 1:05:34 PM REPRESENTATIVE KOPP drew attention to language currently proposed under SB 63, on page 4, lines 2-4, which read: (e) Notwithstanding (a) and (b) of this section, an individual may smoke in a separate enclosed smoking area located in an 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. REPRESENTATIVE KOPP said he is not aware any state-owned or public airports that have separate enclosed smoking areas. He said [Amendment 1] would apply to the international airport system where passengers are restricted by federal law from leaving the airport when they arrive in the international terminal. Those international terminals are set up with smoking rooms that have ventilation to the outside of the terminal, which he said he thinks is appropriate for international travelers that do not have an option to leave the airport. He said, "I have not heard from any airport operator ... that they have ... an airport that they would like to build a smoking room. That would be contrary to this amendment. I mean, I'd certainly like to hear from them if they do. I'm unaware that there's a facility in this state that would ... take issue with this." He opined that the international airport system needs Amendment 1; it would apply to both the Anchorage and Fairbanks International Airports. He said he spoke to the bill sponsor, who supports Amendment 1. 1:07:40 PM REPRESENTATIVE LEDOUX asked whether federal law requires a designated smoking place for international passengers. 1:08:09 PM SENATOR MICCICHE answered there is not a requirement. He said he thinks Amendment 1 is "a fairness amendment" that would offer [a place to smoke for] someone who has been on a flight for many hours and cannot leave the airport. REPRESENTATIVE LEDOUX surmised there are probably Alaskans who work in international airports, and she asked, "Why wouldn't you be just as concerned with those residents who are working ... there than you would be about anybody else?" SENATOR MICCICHE indicated that there are places where smoking is allowed that are not places where employees have to be to serve customers. REPRESENTATIVE LEDOUX asked if the bill specifically states that employees cannot go out to the designated smoking areas. SENATOR MICCICHE responded that the bill states that those employees are not required to serve those smoking areas. 1:11:01 PM REPRESENTATIVE FANSLER offered his understanding that Amendment 1 would set a more rigid standard. 1:12:00 PM REPRESENTATIVE KOPP confirmed the proposed amendment would create a more stringent requirement. He said it goes back to a previous version of the proposed legislation that was requested by the director of the international airport system. He reiterated that he is not aware of anyone from a municipal or state airport asking for a smoke room; however, there are two international airports that are set up with "directly ventilated rooms for international travelers." 1:12:47 PM REPRESENTATIVE LEDOUX asked for clarification whether HCS CSSB 63(STA), without amendment, has "an airport exception." SENATOR MICCICHE explained that a legislative staff member had suggested the bill include all airports, but feedback from the Department of Transportation & Public Facilities (DOT&PF) and municipalities showed that those airports in the state that are not international airports do not want to build ventilated smoke rooms, because there already are places at those airports for patrons to go outside to smoke. He added, "And the one case that you can't go outside is the one case where we've made an exception, and that is the international airport in Anchorage." 1:14:07 PM CHAIR CLAMAN surmised Amendment 1 would require a municipal airport, such as the one in Bethel, Alaska, to get permission from the legislature to build a smoke room; currently municipal airports show no interest in building smoke rooms at their airport facilities. He offered his understanding that Representative Kopp was nodding in agreement. 1:15:04 PM REPRESENTATIVE KOPP said a consistent theme of the bill is to have safe public work spaces [by requiring smokers to] smoke outdoors. He said [Amendment 1] "just continues with that theme." 1:15:30 PM CHAIR CLAMAN asked if the objection was maintained. REPRESENTATIVE FANSLER answered no. CHAIR CLAMAN announced there being no further objection, Amendment 1 was adopted. 1:15:42 PM REPRESENTATIVE KOPP moved to adopt Amendment 2, labeled 30- LS0024\T.5, Martin, 1/22/18, which read as follows: Page 3, lines 20 - 21: Delete all material and insert: "(ii) is separated from the other business or building in a manner that does not allow e- cigarette vapor or aerosol to travel into the other business or building;" REPRESENTATIVE FANSLER objected. 1:15:53 PM REPRESENTATIVE KOPP directed attention to language on page 3, lines 20-21, which read: (ii) has a ventilation system vented to an area where smoking is not prohibited: REPRESENTATIVE KOPP said installing ventilation systems can be expensive. The proposed amendment recognizes that there are well-established businesses that have good relationships with their neighbors. It would replace the ventilation system language with "is separated from the other business or building in a manner that does not allow e-cigarette vapor or aerosol to travel into the other business or building". He said this is consistent with a "complaint-driven" theme. He added, "If people are fine with you there, this doesn't say that you would have to completely redo your ventilation system; it just says that ... you're not allowing the vapor or aerosol to travel into the other business or building, but without putting ... the positive requirement of also doing the ventilation system." REPRESENTATIVE KOPP pointed to language on page 2, lines 23-25, which states that an individual would not be prohibited from smoking in "a private residence that is in a building where another residence provides paid child care or care for adults". He said he thinks [Amendment 2] would make the proposed bill "internally consistent" while giving e-cig stores more liberty in how they are allowed to establish their businesses. 1:18:09 PM CHAIR CLAMAN asked if the objection was maintained. REPRESENTATIVE FANSLER answered no. 1:18:12 PM CHAIR CLAMAN asked if there was further objection to the motion to adopt Amendment 2. There being none, it was so ordered. 1:18:36 PM REPRESENTATIVE LEDOUX requested the committee hear from a representative from the Department of Health and Social Services regarding the department's fiscal note [included in the committee packet]. She directed attention to the second line of the second paragraph of the fiscal analysis, which read as follows: Ideally, the Division of Behavioral Health would consider this as a form of "passive enforcement" which could be performed in addition to the other duties assigned to the Tobacco Investigators. REPRESENTATIVE LEDOUX opined the statement is not one that "bodes really well for a fiscal note." She asked if the fiscal note was based on "hopes and dreams" or, as she said she would expect, "cold, hard reality." 1:21:00 PM The committee took an at-ease from 1:21 p.m. to 1:23 p.m. to address a technical problem. 1:23:02 PM JOE DARNELL, Investigator IV, Tobacco Youth Education & Enforcement Program, Division of Behavioral Health (DBH), Department of Health and Social Services (DHSS), explained that the DBH is using a passive enforcement matrix that it adopted from the Municipality of Anchorage, which has had the ordinance in place since 2007. He said the division does not see [the fiscal note] as "we're hoping." He relayed that in the last 10 years the Municipality of Anchorage has written two citations relating to its smoke-free ordinance and has had only 200 complaints. He said the division considers that the fiscal note will be zero, in terms of enforcement. 1:24:20 PM REPRESENTATIVE LEDOUX drew attention to language in the third paragraph of the fiscal note analysis, which read: If the intent is that the type of sign provided is an electronic downloadable copy of a sample sign, the cost would be minimal regardless of the number of signs requested. However, if the intent is for more durable manufactured or printed signage, then additional resources would be needed. REPRESENTATIVE LEDOUX asked, "Intent is created by the legislature, is it not?" MR. DARNELL answered that's correct. REPRESENTATIVE LEDOUX asked, "So, what does the bill require?" MR. DARNELL answered that the bill requires that signage needs to be posted. REPRESENTATIVE LEDOUX asked about signage that is posted outdoors. MR. DARNELL noted that [signage] falls under the [Division] of Public Health. Notwithstanding that, he offered his understanding that there is a zero fiscal note for the state because Americans for Nonsmokers' Rights (ANR) will be donating the money to purchase those signs. REPRESENTATIVE LEDOUX questioned whether ANR would be donating those signs for eternity. 1:26:05 PM CHELEY GRIGSBY, Health Program Manager III, Tobacco Prevention and Control Program, Division of Public Health, Department of Health and Social Services (DHSS), responded that there is a sponsor to purchase the signs initially. REPRESENTATIVE LEDOUX questioned how the state could come up with a zero fiscal note based on a verbal promise from someone to give a donation. She said, "I guess I kind of find this as ... maybe a way to avoid giving a bill a fiscal note." 1:27:34 PM MS. GRIGSBY said there is no contract in place; currently there is a sponsor who would donate the signs. In response to a follow-up question, she said the program currently has signs [that could be used] by someone who wants to replace signs in the future. She added that there would be no plan to replace the signs every year. 1:28:21 PM REPRESENTATIVE EASTMAN noted that the zero fiscal note goes to 2024, and he surmised that signs would have to be replaced before that time. He asked how much the donor has allocated for the signs and how close that matches the department's estimation of the cost of signage. He said signage will be needed anywhere smoking is prohibited, and that includes on a marine vessel. He stated, "I'm quite certain the printing of a piece of paper is not going to last very long on the outside of a boat." MS. GRIGSBY said she would have to investigate further in order to offer a response. She then deferred to Senator Micciche. SENATOR MICCICHE relayed that the funding would cover a one-time replacement. He explained that the money is solely for DOT&PF signage; additional signs required under CSSB 63(FIN) would be covered by a grant. He said the few [signs] that would have to be replaced would be covered "the way they're covered today and the way they've always been covered since there's been a signage requirement, and that is through the tobacco cessation program." He reiterated his points in response to a follow-up question. He added that there would be no additional burden [caused by] the proposed legislation. REPRESENTATIVE EASTMAN asked, "If there's more signs, isn't that going to be more cost?" SENATOR MICCICHE answered, "I imagine I could calculate an incremental difference in how that [cost would] be covered, and I would imagine that that increase probably exists." 1:32:09 PM CHAIR CLAMAN offered an example wherein the grant pays for 100 signs to be replaced, and if a sign or two needs replacing every few years, "they'll replace it"; however, there are "a bunch of other signs" that get replaced by DOT&PF as part of its regular program. 1:33:08 PM REPRESENTATIVE LEDOUX questioned how there could be a zero fiscal note when there will be an incremental cost. SENATOR MICCICHE suggested people can view things in a variety of ways or look at the facts, and the fact in this instance is that there is a tobacco cessation program originally funded by a settlement with tobacco companies that is trying to help Alaskans not use tobacco. He said, "They have a portion of their funding that would help replace signs at no additional cost to the state. That's the fact. That's the reason there's not a Department of Health and Social Services fiscal note for the replacement of signs; that's the reason there's not a Department of Transportation [& Public Facilities] fiscal note for the replacement of signs. I cannot think of any other way to answer that." REPRESENTATIVE LEDOUX maintained that money currently used for one thing then used for something else is still a cost. 1:35:14 PM REPRESENTATIVE KOPP imparted that the Tobacco Cessation Fund is always used for the same thing - not for different things. He said he spoke to the commissioner of DOT&PF and found that because the signs for which the department actually needs to do a hard fabrication are being paid for upfront by the Tobacco Cessation Fund, and because most of the signs can be put into "all-weather devices," the cost of minimal. He said metal signs last for decades. The cost of replacing a sign now and then is "so incremental" that there is no sign replacement fund that requires the dedication of a set amount. REPRESENTATIVE KOPP noted that it is common for municipalities to partner with industry on many types of projects to cover what a government entity would otherwise be doing, and he said those kinds of programs tend to last longer than when they are driven solely by the government. REPRESENTATIVE LEDOUX said she agreed with the comment but wondered why there would not be a fiscal note to reflect, for example, that private industry will bear the cost. She explained that the problem is the total lack of a fiscal note. 1:37:33 PM REPRESENTATIVE LEDOUX returned to the aforementioned fiscal note analysis, to a sentence in the third paragraph, which read as follows [original punctuation provided]: Current grantees and contractors will refocus their efforts to the implementation related to this statewide smoking prohibition, possibly at the expense of current educational efforts. REPRESENTATIVE LEDOUX asked what educational efforts may be affected. She further inquired whether someone from the department could state for the record that the department would not be coming back to the legislature [asking for more money] next year because there is not enough money for the educational efforts. MS. GRIGSBY responded that the Tobacco Prevention and Control Program currently has a network of community grantees that provide education statewide; therefore, "we wouldn't need any additional resources for that." 1:39:01 PM REPRESENTATIVE LEDOUX asked, "Then why does the fiscal note say that the implementation may come, possibly, at the expense of current educational efforts?" MS. GRIGSBY answered, "We're already doing the education, so there would be no need to do additional or take from ... those resources; they would continue doing what they are doing." REPRESENTATIVE LEDOUX asked for the reason behind the sentence she had just quoted in the fiscal analysis. MS. GRIGSBY stated, "So, they would be refocusing their message, when they're doing education, to address the passing of this smoke-free workplace bill." CHAIR CLAMAN proffered that in other words Ms. Grigsby was saying that "they're going to be focusing on this message instead of the message they're currently focusing on." MS. GRIGSBY answered that is correct. 1:40:34 PM REPRESENTATIVE LEDOUX said she is still waiting for someone to tell her no one would "come back with a supplemental" to pay for "the message that's now being redirected." CHAIR CLAMAN remarked that it does not appear anyone is prepared to answer that question. 1:40:54 PM REPRESENTATIVE REINBOLD proffered that DHSS has a $3.2 billion budget and a $92 million supplemental [budget]; therefore, she said she does not think this issue is even on the department's radar, because the amount is too miniscule. She relayed that she used to place signs along trails and bear corridors, and DOT&PF would give her their old signs. She indicated that dealing with signage is already part of the infrastructure. She added that perhaps the effects of the signage will be a decrease in smoking, which, in turn, will result in a huge cost-savings to the state. 1:42:10 PM REPRESENTATIVE EASTMAN indicated that DOT&PF has been candid in regard to signs being a potential distraction and being expensive to replace, and he said he would like to know if DOT&PF would be "involved in this process" and what that involvement might be. CHAIR CLAMAN noted there was no one present from DOT&PF to answer that question. 1:44:46 PM REPRESENTATIVE EASTMAN indicated he had learned during another committee's bill hearing process that money designated to the [smoking cessation] effort could not be cut, because it is important to get smoking cessation materials to the public. He expressed concern as to where the money will come from in the future. He added, "I also wanted to ask if the department has considered that given that their intention with this program is to reduce smoking, ... that reduction in smoking is also going to reduce the amount of funds available for each of these efforts, education-wise and signage-wise and so-forth, and has that been factored into ... this zero fiscal note?" MR. GRIGSBY answered that the grant-related message is directed to statewide smoke-free law rather than community-level efforts, and the signs would be absorbed by already existing funds. She said the department is prepared to adjust the program should funds be reduced in the future. In response to a follow-up question, she said there are no plans to ask the legislature for additional funds to replace the signs. 1:46:58 PM REPRESENTATIVE LEDOUX asked about enforcement, for example, if a complaint is filed. 1:47:58 PM MR. DARNELL answered that for rural Alaska, following a complaint the state would send a letter to the violator; if another complaint was submitted, a letter with stronger wording would be sent; after a third or fourth complaint, a trooper or Village Public Safety Officer (VPSO) would check the situation out as part of normal duties. In response to a follow-up question, he said he could not answer whether a village could go a year without someone stopping by to check on a situation, but he does know that troopers do their best in protecting citizens and the VPSO programs. REPRESENTATIVE LEDOUX observed that no one is able to specify how much this will cost, and she stated that it is almost impossible to have regulation or law that costs nothing. She suggested it would be more appropriate to have an indeterminate fiscal note. 1:51:16 PM REPRESENTATIVE LEDOUX moved that the House Judiciary Standing Committee add an indeterminate fiscal note. REPRESENTATIVE FANSLER objected. 1:51:28 PM REPRESENTATIVE REINBOLD reiterated that the result of reducing smoking could be that the state saves money; therefore, she said she does not think it is fair for the legislature to tell the department to create an indeterminate fiscal note when there could be a credit. 1:52:01 PM REPRESENTATIVE LEDOUX responded that the reason for an indeterminate fiscal note is when there is an uncertainty as to [the fiscal outcome of legislation]. REPRESENTATIVE EASTMAN offered his understanding that "the department is all but saying that it really should be an indeterminant fiscal note," and he indicated he thinks the committee would err in not requesting one. 1:52:54 PM The committee took an at-ease from 1:52 p.m. to 1:53 p.m. 1:53:32 PM CHAIR CLAMAN said there is a motion before the committee to request an indeterminant fiscal note. REPRESENTATIVE FANSLER maintained his objection to the motion. 1:54:13 PM REPRESENTATIVE LEDOUX restated her concern about the uncertainty of the cost that could be incurred under CSSB 63(FIN). She said there has been pressure to push the proposed legislation through, and it is easier to do that with a zero fiscal note. She said she has never seen a fiscal note that "talks about ideals and intent." 1:55:32 PM REPRESENTATIVE FANSLER said that while he sees Representative LeDoux's point, he thinks the House Judiciary Standing Committee should put its faith in the departments and leave the questioning of fiscal notes to the House Finance Committee. He concluded that he does not see anything that would preclude him from trusting in the vetting done by the departments that resulted in the fiscal notes before the committee. 1:56:35 PM REPRESENTATIVE EASTMAN said it is the job of the legislature, as a separate branch of government, to question what the other branch of government puts forward. 1:57:39 PM REPRESENTATIVE KOPP said he thinks the answer was clearly stated that [since] the Municipality of Anchorage "rolled out this legislation in 2004," covering half the population of Alaska, there have been three violations, which he said does not impose an administrative burden. 1:58:17 PM REPRESENTATIVE KREISS-TOMKINS stated opposition to the motion, although he said he is sympathetic to notion that "fiscal notes can be massaged one direction or the other to ... arrest or accelerate passage of certain pieces of legislation." He said he thinks there are reasonable arguments that the committee should not be "meddling with this fiscal note," and he said he would like to keep the executive branch "honest and on its toes going forward." 1:59:17 PM REPRESENTATIVE LEDOUX countered that she thinks it is the job of the legislature to question fiscal notes. She said the committee does not know whether the proposed legislation will cost the state money or save the state money, and she reiterated that is the reason for requesting an indeterminate fiscal note. She opined that it is offensive that there is not an indeterminate fiscal note in this case that is so clearly indeterminate. 2:00:16 PM A roll call vote was taken. Representatives LeDoux and Eastman voted in favor of attaching an indeterminate fiscal note to HCS CSSB 63(CRA), [as amended]. Representatives Kreiss-Tomkins, Fansler, Reinbold, Kopp, and Claman voted against it. Therefore, the motion failed by a vote of 2-5. 2:01:13 PM REPRESENTATIVE EASTMAN said he has learned that all is not well when the truth is not black and white and cannot stand on its own. He said HCS CSSB 63(CRA), [as amended], includes good intentions, which he supports, but it is also, in part, less than candid. He said not only is the fiscal note process being massaged, but "volunteer" is being used to mean "employee" and "employer" is being used to mean someone who accepts a volunteer's help. He gave an example of an elderly person who has a business, smokes, has no employees, but has a relative come help him lift boxes every so often. Representative Eastman said HCS CSSB 63(CRA), [as amended], maintains that that relative helping out the elderly business owner is an employee; therefore, signs must be put up and the elderly gentleman must not smoke in his establishment "even though he's at no risk of doing anything harmful to anyone other than himself through his choice of smoking." He said if the legislature cannot account for such a scenario, then it has not done its due diligence and is putting forward good intentions rather than good legislation. 2:04:30 PM REPRESENTATIVE REINBOLD said her take on the proposed legislation is that it has to do with secondhand smoke, which means that somebody else is present when a person is smoking. She said HCS CSSB 63(CRA), [as amended], does not infringe upon a person's right to smoke; it simply outlines where it is okay to smoke. She said it would apply to places of employment, not to people's homes. She said many people have had to deal with secondhand smoke. She said she would support moving HCS CSSB 63(CRA), [as amended], out of committee. 2:05:25 PM REPRESENTATIVE KOPP concurred with Representative Reinbold. He said it amazes him how seriously deaths by alcohol and plane crashes are viewed when so many more people die from tobacco use. He said he thinks HCS CSSB 63(CRA) [as amended] has "a light footprint considering the enormous public health and Medicaid cost that we pay." Smoke inhalation is one of the number one drivers of Medicaid costs. He said there are many examples where regulations have been put in place to protect the public, including the seat belt requirement and driving under the influence (DUI) fines. He reiterated that he thinks HCS CSSB 63(CRA), [as amended], does not go too far. 2:06:48 PM REPRESENTATIVE LEDOUX opined that to pretend that a bill can be enforced and mean anything without any costs is to live in make- believe land. 2:07:19 PM REPRESENTATIVE FANSLER stated support of HCS CSSB 63(CRA) [as amended] as a good and important step toward ensuring public health, and he said he hopes an effect will be to drive down healthcare costs to the state. 2:08:34 PM REPRESENTATIVE FANSLER moved to report HCS CSSB 63(CRA), as amended, out of committee with individual recommendations and the accompanying fiscal notes. REPRESENTATIVE EASTMAN objected. 2:08:55 PM A roll call vote was taken. Representatives Kopp, Kreiss- Tomkins, Fansler, Reinbold, and Claman voted in favor of reporting HCS CSSB 63(CRA), as amended, out of committee with individual recommendations and the accompanying fiscal notes. Representatives LeDoux and Eastman voted against it. Therefore, HCS CSSB 63(JUD) was reported out of the House Judiciary Standing Committee by a vote of 5-2.