Legislature(1997 - 1998)
04/08/1997 08:04 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 79 - MINOR IN POSSESSION OF TOBACCO The next order of business to come before the House State Affairs Standing Committee was HB 79, "An Act relating to the offense of possession of tobacco by a person under 19 years of age." CHAIR JAMES called on Representative Con Bunde, sponsor of HB 79, to present the bill. Number 1125 REPRESENTATIVE CON BUNDE, Alaska State Legislature, stated the goal of HB 79 was to strength existing access laws for the use and purchase of tobacco. REPRESENTATIVE BUNDE announced there was a committee substitute (0- LS0348/H, Chenoweth, 4/7/97) based on the last hearing of the bill and explained the sections. REPRESENTATIVE BUNDE explained Section 1 (A) changed the location of the vending machines to at least 10 feet away from any entrance to the premises that the public may use, or as far as possible for smaller stores. REPRESENTATIVE BUNDE explained Sec. 2 dealt with persons under 19 years of age and the use of false identification as a violation. REPRESENTATIVE BUNDE explained Sec. 3 added new language to exempt a person under the age of 19, to comply with the Synar Amendment, who made a controlled buy under the auspices of a police officer or law enforcement agency. REPRESENTATIVE BUNDE explained Sec. 4 defined proof of age, tobacco product, and vending machine. REPRESENTATIVE BUNDE explained Sec. 5 prevented anybody from preempting a local government's right to pass a local tobacco tax. REPRESENTATIVE BUNDE explained Sec. 6 caused the revocation of a license for people selling tobacco illegally. REPRESENTATIVE BUNDE explained Sec. 7 added new language that prevented a person from selling tobacco unless a business license endorsement was purchased. REPRESENTATIVE BUNDE explained Sec. 8 raised the fee for the business license endorsement from $25 to $100. REPRESENTATIVE BUNDE explained Sec. 9 added new language to change the time a business license could be suspended or revoked to 90 days for the first offense; to 180 days, if there was a previous conviction in the past 24 months; and to 1 year, if there were two or more convictions within the past 24 months. REPRESENTATIVE BUNDE explained Sec. 10 limited the business license endorsement suspension to the retail outlet where the violation occurred; not system wide. REPRESENTATIVE BUNDE explained Sec. 11 added new language that required tobacco products to be in a secure place that was accessible only by authorized employees. It also defined the term "defined place". REPRESENTATIVE BUNDE explained Sec. 12 added a new subsection that required retailers to notify all employees that state law prohibited the sell of tobacco. It also required carding all persons under the age of 27 to comply with federal law. REPRESENTATIVE BUNDE explained Sec. 13 provided for the disposal of money collected into the General Fund. REPRESENTATIVE BUNDE explained Sec. 14 allowed for the separate accounting of the money for a training program for the clerks. REPRESENTATIVE BUNDE explained Sec. 15 required that an accused minor be charged, prosecuted, and sentenced in the district court in the same manner as an adult while a parent, guardian, or custodian was present. Number 1420 PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde, explained Sec. 7 was tied to Sec. 12 (i). Section 12 (i) required all those that sold tobacco products to take a class every other year that provided information about the federal/state laws and regulations. The subsection also prevented the sell of single cigarettes unless they met all the federal labeling requirements and warnings. REPRESENTATIVE BUNDE stated this was a federal requirement. CHAIR JAMES replied she understood that. MS. SWENSON further explained Sec. 7 was also tied to Sec. 13 and 14. Section 13 provided that the money collected from the increased endorsement fees be deposited to the General Fund. Section 14 deposited the money into the General Fund and accounted for it separately so that the legislature could make appropriations for the training program. The funds were not dedicated, however. Number 1512 CHAIR JAMES stated the fiscal note did not show an impact. MS. SWENSON replied there was not a fiscal note for the new committee substitute yet. CHAIR JAMES stated a new fiscal note would be needed before the bill could be moved out of the committee. CHAIR JAMES referred the committee members to page 2, line 18, "(1) who is a prisoner at an adult correctional facility; or". The language was discussed at the last hearing but a conclusion had yet to be reached. Number 1568 REPRESENTATIVE VEZEY announced he had a lot of problems with Section 1. Section 1 (b) (2) said that employers could not put vending machines that sold tobacco products in a break room, or not to hire any person under 19 years of age. It left an employer no other option. Number 1614 REPRESENTATIVE BUNDE replied that was accurate, if a person under 19 years of age had access to a vending machine unsupervised. Number 1625 CHAIR JAMES wondered if the exemption could be taken out to remove that option; it was hard to define a break room. Number 1669 REPRESENTATIVE BUNDE replied the bill itself limited where a vending machine could be and that it had to be under supervision. Thus, by de facto, if it was in a locked break room, it would not meet the other requirements of the law. Number 1710 CHAIR JAMES agreed with Representative Vezey. The bill said a vending machine could not be in a break room. MS. SWENSON said the provision had to do with the new Food and Drug Administration's (FDA) regulations. Number 1735 REPRESENTATIVE VEZEY further said he understood the intent of Sec. 3, but believed it was very unnecessary. The police currently conducted their own sting operations without a statute that authorized them to possess drugs, for example. He always believed it was an affirmative defense for breaking the law. He also knew that the police departments had limited resources and they probably used that as an excuse not to enforce the tobacco law. He could appreciate that given the rate of violent crimes. He did not really object to the provision; it was just a response to a very poor excuse. Number 1802 CHAIR JAMES wondered if minors even needed to be used given the new law of carding everybody under 27 years of age. Number 1837 REPRESENTATIVE BUNDE replied there were two different types of violations - carding and purchasing. Therefore, somebody under 19 years of age would be needed for the purchase violation. Number 1855 REPRESENTATIVE BERKOWITZ stated not everybody was carded. That was the problem. In addition, in response to Representative Vezey, the provision did cut the affirmative defense of entrapment. Number 1877 REPRESENTATIVE VEZEY stated he was concerned about the defense aspect of an affirmative defense position. "Somebody would claim a defense that the police did not have the authority to do this because we didn't give it to them in statute. I think we're maybe narrowing their authority." REPRESENTATIVE BERKOWITZ replied affirmative defense was defined in statute under Title 11. REPRESENTATIVE VEZEY asked why was the provision needed then? REPRESENTATIVE BERKOWITZ replied this was not an affirmative defense, but a response to a vendor claiming entrapment. Number 1959 REPRESENTATIVE IVAN asked Representative Bunde if the licensing was part of federal law or state law? REPRESENTATIVE BUNDE replied it was an endorsement to a business license for the state. Number 2085 REPRESENTATIVE IVAN asked about the Department of Commerce and Economic Development's (DCED) training program. MS. SWENSON replied the intent was to have a course that would go over the federal and state laws, as well as, the applicable regulations. It would be a condition of renewing an endorsement every other year. The retailers would pay for the class themselves, and part of the money would be allocated from the raise in the endorsement fee from $25 to $100. REPRESENTATIVE IVAN wondered if all small retailers would have to go through the class. MS. SWENSON replied, "Yes." Everybody that sold tobacco products would have to go through the class to be brought up to speed on the new regulations at least every other year. Number 2107 CHAIR JAMES wondered if this could be done without going to Juneau, Anchorage or Fairbanks, for example. MS. SWENSON replied it would depend on how the department set the class up. Number 2132 REPRESENTATIVE ELTON asked the following: What was a retailer? The owner? The manager? Would the clerks have to take the class? Number 2152 MS. SWENSON replied the owner: the person responsible for running or maintaining the establishment. Number 2166 REPRESENTATIVE ELTON said this could create a problem because the owners of 7-Eleven, for example, were different than the managers, yet the managers would be responsible. He suggested a definition of retailer was needed. MS. SWENSON replied, "Okay." REPRESENTATIVE BUNDE stated the intent was the local manager of the retail outlet; not the Chief Executive Officer of 7-Eleven, for example. CHAIR JAMES agreed that it needed to be defined. Number 2223 REPRESENTATIVE IVAN stated he was concerned about the small retailers throughout the state and how they would get together with the DCED for the class. It would be cost prohibitive to fly from Akiak to wherever the DCED folks would be, for example. Number 2269 REPRESENTATIVE BUNDE said he could not imagine that this type of schooling would require somebody to fly from Akiak to Anchorage, for example. It would probably only require correspondence. Number 2292 CHAIR JAMES replied education was necessary. It was not as simple as signing a waiver that indicated a person had read the information. Number 2372 LOREN JONES, Director, Division of Alcoholism and Drug Abuse, Department of Health and Social Services, was the next person to testify in Juneau. The department supported the previous committee substitute and he did not see a lot in the current committee substitute that would change its position. MR. JONES stated the department was pleased to see the change to age 27 to comply with the proposed FDA regulations. TAPE 97-38, SIDE A Number 0001 MR. JONES further stated the limit in Sec. 3 (b) of "not less than $300" was of concern to the department. Other bills were setting a limit of "up to $250" to avoid potential jury trials. He suggested putting a period at the end of the word "violation" on page 2, line 28 and deleting the remaining language. The normal punishment for a violation was a penalty of up to $250 anyway. There had been discussions with the Department of Law regarding this issue. Number 0104 CHAIR JAMES replied the provision in Sec. 3 (b) was different. The provision established a floor as opposed to a ceiling for the fine. Number 0126 MR. JONES responded the department did not have a problem with establishing a floor. The courts had ruled that if there was a floor of $300 there had to be a jury trial. CHAIR JAMES said she understood. She was wondering about moving the floor down. MR. JONES replied the department would not have a problem with moving the floor below $300. Number 0167 REPRESENTATIVE BERKOWITZ explained the courts tended to set a bail schedule for the various violations. The courts adopted a set amount so that there would be uniformity in the court system. CHAIR JAMES stated if the bill set a fee at $250 that was the amount the courts would adopt. REPRESENTATIVE BERKOWITZ replied, "That's true." Number 0219 MR. JONES explained that Ms. Swenson just talked to the Department of Law yesterday and it was okay with the amount of $300. The language needed to be cleaned up so that the fine was $300 and not less than, however. MR. JONES further explained that the department liked the new Sec. 7 prohibiting the sale of single cigarettes. It was in line with the new FDA regulations. Number 0281 REPRESENTATIVE ELTON said Sec. 7 (3) did not outlaw the sale of single cigarettes. It only said one could not sell single cigarettes unless the container from which they came from displayed a warning. CHAIR JAMES replied Representative Elton misread the provision. A person could not open a box and sell single cigarettes from the box. REPRESENTATIVE ELTON replied, "Thanks." He had misread it. Number 0344 REPRESENTATIVE BERKOWITZ wondered about the provision of the stamp discussed earlier in the House State Affairs Standing Committee. CHAIR JAMES replied that was a problem for the state surrounding the tobacco tax. We were not talking about taxes. We were talking about a warning. Number 0383 REPRESENTATIVE BERKOWITZ said he was wondering if there would be any disturbance to the stamp. Number 0410 REPRESENTATIVE DYSON asked Chair James if the committee was going to vote on the bill today? CHAIR JAMES replied she would like to move it out today, but we would probably run out of time. REPRESENTATIVE DYSON asked to be excused from the meeting. He had something important to do before 10:00 a.m. CHAIR JAMES replied he might want to ask his minority friends to see if they could fill his spot as a vote to move the bill before he left. REPRESENTATIVE ELTON said he would be here until 10:00 a.m. REPRESENTATIVE BERKOWITZ said he would be happy to fill Mr. Dyson's slot. Number 0469 MR. JONES further said on page 5, lines 1-8, the department questioned the wording in (C) of "two or more times" and in (2) of "three or more times". Was "two or more times" needed in (C) if it was going to be permanently revoked in (2)? he asked. MR. JONES further stated that in Title 4 there were requirements for servers, bartenders and waitresses who served alcohol. He suggested looking there for language surrounding the training course required in the bill from the Department of Commerce and Economic Development. Number 0614 REPRESENTATIVE IVAN stated he was still concerned about the training. Number 0628 CATHERINE REARDON, Director, Division of Occupational Licensing, Department of Commerce and Economic Development, was the next person to testify in Juneau. The division administered the business license program for the state. A business license was needed to conduct business in the state and every two years a $25 fee was paid for a special tobacco endorsement. The provisions concerning education were new in version "H" so she had yet to familiarized herself with the changes and had not given much thought to how the department would conduct the training courses and/or the cost associated with it. MS. REARDON further stated the division supported the efforts and intent of the bill to strengthen enforcement of the tobacco laws. Thus, she did not want to stand in the way of any effort. Enforcement had been the biggest issue between the departments. In version "H" it appeared that the Division of Occupational Licensing was the department that would receive the complaints, investigate them, and deal with the Department of Law for prosecution. That was an activity that the division did not engage in at all right now. It did not have enforcement staff for the business license program. It was a tax collection system, and no one had been convicted of practicing without a business license up to this time. Therefore, enforcement was something that the division would have to gear towards. She would like to have some conversations with the Department of Health and Social Services and the alcohol board to see who could most effectively do it for the cheapest. It was important that the state enforce this. MS. REARDON further stated that the business license and tobacco endorsement had been a revenue generating system rather than a regulatory system. It was very easy to get multiple business licenses and tobacco endorsements. Therefore, she would like to address the issue of a business, with a revoked tobacco endorsement, getting a new license, with a new name, the next day, for example. CHAIR JAMES said it appeared that whoever got the endorsement could control the enforcement. She assumed that would be the Department of Public Safety. It could, however, be the Department of Health and Social Services. It needed to be identified. Whoever it was should also authorize the endorsement. CHAIR JAMES announced the bill would not be moved out of the committee today. It needed to be improved before going to the House Judiciary Standing Committee. CHAIR JAMES suggested a diagram was needed to see how the bill would work. Number 1070 REPRESENTATIVE ELTON stated a new fiscal note would probably be needed as well because there would be a cost associated with enforcement and control. CHAIR JAMES replied a positive fiscal note would be needed because the state would be taking in more fees.
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