Legislature(1997 - 1998)
01/28/1998 09:00 AM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 189 - RESTRICT TOBACCO SALES REPRESENTATIVE COWDERY, sponsor of HB 189, deferred to Marco Pignalberi to explain the changes made in the proposed committee substitute. MARCO PIGNALBERI, staff to Representative Cowdery, noted the draft committee substitute is SCS CSSSHB 189(HES), version 0-LS0711\L. SENATOR WARD moved to adopt that version as the working document of the committee. There being no objection, the motion carried. MR. PIGNALBERI, explained the committee substitute contains five key changes recommended by the committee and the attorney general's office. Those changes are as follows. 1. The culpability standard was changed back from "knowingly" to "negligently" throughout the bill; 2. On page 2, lines 12-13, new language was added requiring a sign to be posted in employee break rooms and applies to businesses that have cigarette vending machines in employee break rooms and employ minors; 3. On page 2, lines 29-31, new language was added to clarify that wholesale businesses that also sell retail must adhere to the self service prohibition for retail sales; 4. On page 3, lines 1 and 2, language has been added that applies to shops that sell only tobacco products. Those shops do not allow entry to individuals under the age of 19 so there is no reason to prohibit self-service tobacco displays in those locations. TAPE 98-5, SIDE B 5. Section 6 ties the penalty provision to the occupational licensing statute. It was not clear to the Attorney General's Office that the penalty could be invoked against people who had licenses under that statute. SENATOR LEMAN noted one other significant change: Section 3 (page 2) changes the class B misdemeanor penalty to a violation. MR. PIGNALBERI affirmed that was correct. He also noted that the provision that mandated that maximum effect be given to both HB 159 and HB 189 if enacted was deleted because the vending machine statutes were included in HB 189. Number 570 SENATOR LEMAN advised that current law, and HB 189, state that the violation shall be punishable by a fine of not less than $300. He asked what the maximum amount of the fine for a violation is. MR. PIGNALBERI said a previous speaker testified that the fine could be as high as $1,000, but he suggested asking a representative from the Attorney General's Office. SENATOR LEMAN thought the $300 fine was adequate to change behavior, especially if judgment is swift and sure. SENATOR GREEN asked Mr. Pignalberi to review the difference between the "knowing" and "negligent" standard. MR. PIGNALBERI explained the culpability standard for "negligently" applies to a violation and is a lower standard. If the penalty or fine is increased, the law requires the standard of culpability to be increased, placing a more difficult burden on the State to prove. Law enforcement officials requested the lower penalty because it requires a lower burden of proof and is easier to achieve in the course of a prosecution. ANNE MARIE HOLEN, representing the Sealaska Native Health Board and Citizens to Protect Kids from Tobacco, thanked the committee for considering suggestions made at the last meeting and asked the following questions of the Department of Law. CHAIRMAN WILKEN announced Anne Carpeneti of the Department of Law had joined members at the table. MS. HOLEN asked how this legislation will be enforced in the real world and how police will determine if a vendor is violating the provision that all sales must be clerk-assisted. She questioned whether a police officer can simply look in a store and cite a merchant if the officer sees self-service tobacco displays, or whether the officer would have to witness a purchase attempt. MS. CARPENETI replied she would prefer to have Department of Public Safety personnel answer that but it is her understanding that the purpose of the bill is to avoid having to have sting operations to enforce the tobacco statutes. That is why it requires controlled sales behind the counter. She thought the section that does that could be drafted a little more clearly. Number 525 MS. HOLEN asked how it will be determined that a retailer who sells only tobacco products should be exempted, and whether that retailer could be cited if a teenager entered the store even though a sign is posted requiring those who enter to be 19. MS. CARPENETI said it has been suggested that Section 4(b) be redrafted to clarify that the exception applies only to retailers who sell mainly tobacco products and not the 7-11 stores that sell cigarettes. She thought Ms. Holen's concerns could be addressed in that subsection if it is redrafted. MS. CARPENETI thanked the Chairman for including the Department of Law's suggested amendments in the committee substitute. The department also believes Section 2 (AS 11.76) should be rewritten in terms of positives rather than negatives, for purposes of clarification, and that a penalty provision be added. She added if the provision that applies to retailers who sell only tobacco products is not restricted to those retailers only, it could create a loophole that could be applied to all retailers. Number 496 REPRESENTATIVE COWDERY agreed with the changes suggested by Ms. Carpeneti. CHAIRMAN WILKEN announced the bill will be redrafted and rescheduled next week. MARK HICKEY, representing the Coalition of Citizens to Protect Kids from Tobacco, agreed with the previous speaker's comments. He expressed concern that subsection(b) on page 3, lines 1 and 2, might negatively affect enforcement actions as drafted. He suggested adding a lead in phrase that says, "In the case of a retailer that principally sells only tobacco products,...." SENATOR LEMAN thought the word "only" could be eliminated because some tobacco shops do sell a few other products. REPRESENTATIVE COWDERY stated he will present a revised committee substitute to the committee next week. There being no further business to come before the committee, CHAIRMAN WILKEN adjourned the meeting at 10:02 a.m.
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