Legislature(1997 - 1998)

04/28/1997 01:52 PM House JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                HOUSE JUDICIARY STANDING COMMITTEE                             
                          April 28, 1997                                       
                             1:52 p.m.                                         
                                                                               
                                                                               
 MEMBERS PRESENT                                                               
                                                                               
 Representative Joe Green, Chairman                                            
 Representative Con Bunde, Vice Chairman                                       
 Representative Brian Porter                                                   
 Representative Norman Rokeberg                                                
 Representative Jeannette James                                                
 Representative Eric Croft                                                     
 Representative Ethan Berkowitz                                                
                                                                               
 MEMBERS ABSENT                                                                
                                                                               
 All members present                                                           
                                                                               
 COMMITTEE CALENDAR                                                            
                                                                               
 HOUSE JOINT RESOLUTION NO. 25                                                 
 Proposing amendments to the Constitution of the State of Alaska to            
 guarantee the permanent fund dividend, to provide for                         
 inflation-proofing, and to require a vote of the people before                
 spending undistributed income from the earnings reserve of the                
 permanent fund; and relating to the permanent fund.                           
                                                                               
      - TABLED                                                                 
                                                                               
 SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 189                                     
 "An Act relating to sale of tobacco and tobacco products; and                 
 providing for an effective date."                                             
                                                                               
      - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE                               
                                                                               
 HOUSE BILL NO. 79                                                             
 "An Act relating to the offense of possession of tobacco by a                 
 person under 19 years of age."                                                
                                                                               
      - HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE                               
                                                                               
 * HOUSE BILL NO. 232                                                          
 "An Act establishing the independent division of administrative               
 hearings in the Department of Administration in order to provide a            
 source of independent administrative hearing officers to preside in           
 contested cases; relating to administrative hearing officers;                 
 relating to contested case proceedings; and providing for an                  
 effective date."                                                              
                                                                               
      - HEARD AND HELD                                                         
                                                                               
 CONFIRMATION HEARING ON GOVERNOR'S APPOINTMENT TO:                            
 Violent Crimes Compensation Board                                             
                                                                               
        Leslie B. Wheeler                                                      
                                                                               
      - CONFIRMATION ADVANCED                                                  
                                                                               
 SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 159                                     
 "An Act relating to sale, gift, exchange, possession, and purchase            
 of tobacco and tobacco products; and providing for an effective               
 date."                                                                        
                                                                               
      - SCHEDULED BUT NOT HEARD; ASSIGNED TO SUBCOMMITTEE                      
                                                                               
 (* First public hearing)                                                      
                                                                               
 PREVIOUS ACTION                                                               
                                                                               
 BILL:  HJR 25                                                                 
 SHORT TITLE: CONST. AM: PERM. FUND INCOME & DIVIDEND                          
 SPONSOR(S): REPRESENTATIVE(S) AUSTERMAN                                       
                                                                               
 JRN-DATE      JRN-PG                 ACTION                                   
 02/26/97       483    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 02/26/97       483    (H)   STATE AFFAIRS, JUDICIARY, FINANCE                 
 03/11/97              (H)   STA AT 8:00 AM CAPITOL 102                        
 03/11/97              (H)   MINUTE(STA)                                       
 03/13/97              (H)   STA AT 8:00 AM CAPITOL 102                        
 03/13/97              (H)   MINUTE(STA)                                       
 03/15/97              (H)   STA AT 11:00 AM CAPITOL 102                       
 03/15/97              (H)   MINUTE(STA)                                       
 03/17/97       688    (H)   STA RPT  CS(STA) 3DP 4NR                          
 03/17/97       689    (H)   DP: JAMES, HODGINS, DYSON                         
 03/17/97       689    (H)   NR: ELTON, BERKOWITZ, VEZEY, IVAN                 
 03/17/97       689    (H)   FISCAL NOTE (GOV)                                 
 03/17/97       689    (H)   ZERO FISCAL NOTE (REV)                            
 03/17/97       689    (H)   REFERRED TO JUDICIARY                             
 03/21/97       789    (H)   CORRECTED STA CS SUBMITTED                        
 04/21/97              (H)   JUD AT 1:45 PM CAPITOL 120                        
 04/21/97              (H)   MINUTE(JUD)                                       
 04/23/97              (H)   JUD AT 1:00 PM CAPITOL 120                        
 04/23/97              (H)   MINUTE(JUD)                                       
 04/28/97              (H)   MINUTE(JUD)                                       
                                                                               
 BILL:  HB 189                                                                 
 SHORT TITLE: RESTRICT TOBACCO SALES                                           
 SPONSOR(S): REPRESENTATIVE(S) COWDERY, Austerman                              
                                                                               
 JRN-DATE      JRN-PG                 ACTION                                   
 03/12/97       640    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 03/12/97       640    (H)   LABOR & COMMERCE, JUDICIARY                       
                                                                               
 04/03/97       922    (H)   SPONSOR SUBSTITUTE INTRODUCED -                   
                             REFERRALS                                         
 04/03/97       922    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/03/97       922    (H)   L&C, JUDICIARY                                    
 04/09/97              (H)   L&C AT 3:15 PM CAPITOL 17                         
 04/09/97              (H)   MINUTE(L&C)                                       
 04/10/97              (H)   L&C AT 3:15 PM CAPITOL 17                         
 04/10/97              (H)   MINUTE(L&C)                                       
 04/18/97              (H)   L&C AT 3:15 PM CAPITOL 17                         
 04/18/97              (H)   MINUTE(L&C)                                       
 04/21/97      1211    (H)   L&C RPT  CS(L&C) NT 4DP 1NR                       
 04/21/97      1211    (H)   DP: COWDERY, RYAN, HUDSON, ROKEBERG               
 04/21/97      1211    (H)   NR: BRICE                                         
 04/21/97      1211    (H)   2 ZERO FISCAL NOTES (DPS, REV)                    
 04/21/97      1225    (H)   COSPONSOR(S): AUSTERMAN                           
 04/28/97              (H)   JUD AT 1:45 PM CAPITOL 120                        
                                                                               
 BILL:  HB 79                                                                  
 SHORT TITLE: MINOR IN POSSESSION OF TOBACCO                                   
 SPONSOR(S): REPRESENTATIVE(S) BUNDE, James                                    
                                                                               
 JRN-DATE      JRN-PG                 ACTION                                   
 01/16/97        90    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 01/16/97        90    (H)   STA, JUDICIARY, FINANCE                           
 04/03/97              (H)   STA AT 8:00 AM CAPITOL 102                        
 04/03/97              (H)   MINUTE(STA)                                       
 04/03/97       978    (H)   COSPONSOR(S): JAMES                               
 04/08/97              (H)   STA AT 8:00 AM CAPITOL 102                        
 04/08/97              (H)   MINUTE(STA)                                       
 04/17/97              (H)   STA AT 8:00 AM CAPITOL 102                        
 04/17/97              (H)   MINUTE(STA)                                       
 04/18/97      1166    (H)   STA RPT  CS(STA) NT 4DP 1DNP 1NR                  
 04/18/97      1167    (H)   DP: JAMES, ELTON, BERKOWITZ, DYSON                
 04/18/97      1167    (H)   DNP: VEZEY                                        
 04/18/97      1167    (H)   NR: IVAN                                          
 04/18/97      1167    (H)   FISCAL NOTE (DCED)                                
 04/18/97      1167    (H)   REFERRED TO JUDICIARY                             
 04/28/97              (H)   JUD AT 1:45 PM CAPITOL 120                        
                                                                               
 BILL:  HB 232                                                                 
 SHORT TITLE: INDEPENDENT DIV. OF ADMIN. HEARINGS                              
 SPONSOR(S): REPRESENTATIVE(S) OGAN, Kohring, Hodgins, Ryan,                   
 Sanders, Dyson, Kott, Mulder, Vezey                                           
                                                                               
 JRN-DATE      JRN-PG                 ACTION                                   
 04/04/97       990    (H)   READ THE FIRST TIME - REFERRAL(S)                 
 04/04/97       990    (H)   JUDICIARY, FINANCE                                
 04/18/97      1189    (H)   COSPONSOR(S): VEZEY                               
 04/28/97              (H)   JUD AT 1:45 PM CAPITOL 120                        
                                                                               
                                                                               
 WITNESS REGISTER                                                              
                                                                               
 CASEY SULLIVAN, Legislative Administrative Assistant                          
    to Representative John Cowdery                                             
 Alaska State Legislature                                                      
 Capitol Building, Room 416                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-3879                                                    
 POSITION STATEMENT:  Testified on behalf of prime sponsor of SSHB
                      189.                                                     
                                                                               
 REPRESENTATIVE JOHN COWDERY                                                   
 Alaska State Legislature                                                      
 Capitol Building, Room 416                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-3879                                                    
 POSITION STATEMENT:  Prime sponsor of SSHB 189.                               
                                                                               
 LOIS IRWIN                                                                    
 167 West Bayview Avenue                                                       
 Homer, Alaska  99603                                                          
 Telephone:  (907) 235-7172                                                    
 POSITION STATEMENT:  Testified during hearing of SSHB 189 in                  
                      support of "all tobacco bills"; testified                
                      in support of HB 79.                                     
                                                                               
 DELISA CULPEPPER                                                              
 Alaska Public Health Association                                              
 1874 Wickersham Drive                                                         
 Anchorage, Alaska  99507                                                      
 Telephone:  (907) 563-7425                                                    
 POSITION STATEMENT:  Testified on SSHB 189 and HB 79.                         
                                                                               
 JUDITH BENDERSKY                                                              
 12901 Trent Circle                                                            
 Anchorage, Alaska  99516                                                      
 Telephone:  (907) 345-1173                                                    
 POSITION STATEMENT:  Testified on SSHB 189 and HB 79; recommended             
                      merging high points of SSHB 189, HB 79 and               
                      SSHB 159.                                                
                                                                               
 BLAIR McCUNE, Deputy Director                                                 
 Public Defender Agency                                                        
 Department of Administration                                                  
 900 West Fifth Avenue, Suite 200                                              
 Anchorage, Alaska  00501-2090                                                 
 Telephone:  (907) 264-4400                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding SSHB 189.                            
                                                                               
 RUTH PARRIOTT                                                                 
 American Cancer Society                                                       
 1057 East Fireweed Lane                                                       
 Anchorage, Alaska  99508                                                      
 Telephone:  (907) 263-2076                                                    
 POSITION STATEMENT:  Testified on SSHB 189 and HB 79, with                    
                      comments on the tobacco tax.                             
                                                                               
 ROSANNE TURNER, Member                                                        
 Advisory Board on Alcoholism and Drug Abuse                                   
 18226 Gavin Circle                                                            
 Eagle River, Alaska  99577                                                    
 Telephone:  (907) 279-2511                                                    
 POSITION STATEMENT:  Testified on SSHB 189.                                   
                                                                               
 LOREN JONES, Director                                                         
 Division of Alcoholism and Drug Abuse                                         
 Department of Health and Social Services                                      
 P.O. Box 110607                                                               
 Juneau, Alaska  99811-0607                                                    
 Telephone:  (907) 465-2071                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding SSHB 189 and CSHB 79(STA),           
                      with comments on SSHB 159 and the tobacco tax.           
                                                                               
 ANNE CARPENETI, Assistant Attorney General                                    
 Legal Services Section                                                        
 Criminal Division                                                             
 Department of Law                                                             
 P.O. Box 110300                                                               
 Juneau, Alaska  99811-0300                                                    
 Telephone:  (907) 465-3428                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding SSHB 189 and CSHB 79(STA).           
                                                                               
 JOAN HAMILTON                                                                 
 P.O. Box 1275                                                                 
 Bethel, Alaska  99559                                                         
 Telephone:  (907) 543-6760                                                    
 POSITION STATEMENT:  Testified on SSHB 189, with comments on HB 79,           
                      SSHB 159 and the tobacco tax.                            
                                                                               
 PATRICIA SWENSON, Legislative Assistant                                       
    to Representative Con Bunde                                                
 Alaska State Legislature                                                      
 Capitol Building, Room 104                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-6824                                                    
 POSITION STATEMENT:  Answered questions regarding CSHB 79(STA).               
                                                                               
 ANNETTE MARLEY, Youth Project Coordinator                                     
 Trampling Tobacco                                                             
 Alaska Native Health Board                                                    
 4201 Tudor Center Drive, Suite 105                                            
 Anchorage, Alaska  99508                                                      
 Telephone:  (907) 562-6006                                                    
 POSITION STATEMENT:  Testified on HB 79, with comments on the                 
                      tobacco tax.                                             
                                                                               
 BRIANA WILLIAMS                                                               
 12110 Portage Drive                                                           
 Anchorage, Alaska  99515                                                      
 Telephone:  (907) 344-9445                                                    
 POSITION STATEMENT:  Testified on HB 79, with comments on the                 
                      tobacco tax.                                             
                                                                               
 JAY HERMANSON                                                                 
 American Lung Association of Alaska                                           
 1057 West Fireweed Lane                                                       
 Anchorage, Alaska  99503                                                      
 Telephone:  (907) 263-2085                                                    
 POSITION STATEMENT:  Testified on HB 79.                                      
                                                                               
 CATHERINE REARDON, Director                                                   
 Division of Occupational Licensing                                            
 Department of Commerce and Economic Development                               
 P.O. Box 110806                                                               
 Juneau, Alaska  99811-0806                                                    
 Telephone:  (907) 465-2534                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding CSHB 79(STA), with                   
                      comparisons to SSHB 159 and SSHB 189.                    
                                                                               
 REPRESENTATIVE SCOTT OGAN                                                     
 Alaska State Legislature                                                      
 Capitol Building, Room 128                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-3878                                                    
 POSITION STATEMENT:  Prime sponsor of HB 232.                                 
                                                                               
 DAVID STANCLIFF, Legislative Administrative Assistant                         
    to Representative Scott Ogan                                               
 Alaska State Legislature                                                      
 Capitol Building, Room 128                                                    
 Juneau, Alaska  99801                                                         
 Telephone:  (907) 465-2338                                                    
 POSITION STATEMENT:  Answered questions regarding HB 232.                     
                                                                               
 EDWIN L. FELTER, JR., Director                                                
    and Chief Administrative Law Judge                                         
 Division of Administrative Hearings                                           
 1120 Lincoln Street, Suite 1400                                               
 Denver, Colorado  80203                                                       
 Telephone:  (303) 894-2500                                                    
 POSITION STATEMENT:  Testified in support of HB 232.                          
                                                                               
 NANCY WELLER, Medical Assistance Administrator                                
 Division of Medical Assistance                                                
 Department of Health and Social Services                                      
 P.O. Box 110660                                                               
 Juneau, Alaska  99811-0660                                                    
 Telephone:  (907) 465-5825                                                    
 POSITION STATEMENT:  Provided department's position and answered              
                      questions regarding HB 232.                              
                                                                               
 LESLIE B. WHEELER                                                             
 P.O. Box 878885                                                               
 Wasilla, Alaska  99687                                                        
 Telephone:  (907) 376-9119                                                    
                                                                               
 POSITION STATEMENT:  Testified as Governor's appointee to Violent             
                      Crimes Compensation Board.                               
                                                                               
 DAVID CRUZ                                                                    
 HC04, Box 9323                                                                
 Palmer, Alaska  99645                                                         
 Telephone:  (907) 746-3144                                                    
 POSITION STATEMENT:  Testified in support of HB 232.                          
                                                                               
 ACTION NARRATIVE                                                              
                                                                               
 TAPE 97-68, SIDE A                                                            
 Number 0001                                                                   
                                                                               
 CHAIRMAN JOE GREEN called the House Judiciary Standing Committee              
 meeting to order at 1:52 p.m.  Members present at the call to order           
 were Representatives Green, Bunde, Rokeberg, Croft and Berkowitz.             
 Representatives Porter and James joined the meeting at 1:56 p.m.              
 and 2:16 p.m., respectively.                                                  
                                                                               
 HJR 25 - CONST. AM: PERM. FUND INCOME & DIVIDEND                              
                                                                               
 Number 0052                                                                   
                                                                               
 CHAIRMAN GREEN brought before the committee House Joint Resolution            
 No. 25, proposing amendments to the Constitution of the State of              
 Alaska to guarantee the permanent fund dividend, to provide for               
 inflation-proofing, and to require a vote of the people before                
 spending undistributed income from the earnings reserve of the                
 permanent fund; and relating to the permanent fund.                           
                                                                               
 CHAIRMAN GREEN noted that an executive session had been held that             
 morning regarding possible tax consequences of HJR 25.                        
                                                                               
 Number 0072                                                                   
                                                                               
 REPRESENTATIVE CON BUNDE stated that there were a number of                   
 questions yet to be answered.  He made a motion to table HJR 25.              
                                                                               
 CHAIRMAN GREEN asked whether there was any objection.  There being            
 none, HJR 25 was tabled.                                                      
                                                                               
 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.                            
                                                                               
 Number 0724                                                                   
                                                                               
 CHAIRMAN GREEN asked whether anyone was there from Representative             
 Kott's office to present SSHB 159; no one was present.                        
                                                                               
 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.                        
                                                                               
 HB 232 - INDEPENDENT DIV. OF ADMIN. HEARINGS                                  
                                                                               
 Number 0582                                                                   
                                                                               
 CHAIRMAN GREEN announced the next item of business was House Bill             
 No. 232, "An Act establishing the independent division of                     
 administrative hearings in the Department of Administration in                
 order to provide a source of independent administrative hearing               
 officers to preside in contested cases; relating to administrative            
 hearing officers; relating to contested case proceedings; and                 
 providing for an effective date."                                             
                                                                               
 Number 0588                                                                   
                                                                               
 REPRESENTATIVE SCOTT OGAN, prime sponsor, discussed the branches of           
 government, suggesting all three powers of government have been               
 delegated to what he calls the fourth branch, the bureaucracy.  He            
 stated, "They are the executive - we give them legislative powers             
 by allowing them to write law, which is administrative law or                 
 regulation, and they also have judicial powers because they                   
 adjudicate that regulation.  And I think there's a lack of                    
 separation of powers and a lack of impartial, fair hearings."                 
                                                                               
 REPRESENTATIVE OGAN recounted how he had previously been on the big           
 game commercial services board, where they routinely had                      
 administrative hearing findings placed before them, relating to a             
 guide who broke the regulations, for example.  He had been                    
 disturbed by the fact that they would pass a sometimes-very-serious           
 judgment against an individual, even revoking that person's                   
 livelihood by permanently revoking a license, but that members were           
 not allowed to question that person or any witnesses.  "We simply             
 read the findings of the hearing officer and either accepted them             
 or rejected them or modified them," he stated.                                
                                                                               
 REPRESENTATIVE OGAN said once in the legislature, he decided to               
 look at that.  He stated, "And we decided to try to break the                 
 administrative adjudicators out of the administration, at least out           
 of the bureaucracy that they work for, and create a separate                  
 division, under the Department of Administration, and get                     
 professional hearing officers that would give a fair and impartial            
 hearing to these cases."                                                      
                                                                               
 Number 0779                                                                   
                                                                               
 REPRESENTATIVE OGAN advised members that several other states have            
 done this.  Modeled after legislation in a couple of different                
 states, this is a hybrid that he believes is a good model.  He                
 asked Dave Stancliff to address technical aspects.                            
                                                                               
 Number 0817                                                                   
                                                                               
 DAVID STANCLIFF, Legislative Administrative Assistant to                      
 Representative Scott Ogan, reported that in exploring the                     
 separation of the hearing functions of agencies, he had located two           
 administrative law judges (ALJs) from other states:  Ed Felter from           
 Colorado, who would join them on teleconference shortly, and John             
 Hardwicke from Maryland.                                                      
                                                                               
 MR. STANCLIFF advised members that Maryland has what is considered            
 to be the best model in any of the states.  However, the model                
 before the committee was unanimously adopted by the American Bar              
 Association's House of Delegates and was "several notches beyond              
 that."  Mr. Stancliff stated, "They're very excited that Alaska is            
 the first state to have that particular model."                               
                                                                               
 MR. STANCLIFF said he had contacted Mark Boyer, Commissioner,                 
 Department of Administration; Mike Abbott, the Governor's business            
 liaison; and Teresa Williams, Assistant Attorney General, Fair                
 Business Practices Section, Civil Division (Anchorage), Department            
 of Law.  Mr. Stancliff stated, "The administration is intrigued               
 with this idea and has shown a willingness to work with this                  
 committee and with the legislature."                                          
                                                                               
 Number 0876                                                                   
                                                                               
 MR. STANCLIFF referred to the "administrative tax law judge                   
 concept" that Chairman Green had worked on in previous legislation.           
 He said the higher level of due process in fair hearings                      
 accomplished in that effort can be extended in the bill before the            
 committee.                                                                    
                                                                               
 MR. STANCLIFF explained that there are two dimensions to this bill,           
 structure and flavor; he would explain the structure.  Key points             
 that Representative Ogan had considered were whether legislators              
 should set the structure entirely apart or place it within the                
 administration and, if the latter, how deep within the                        
 administration it should be.  While some states have set the                  
 structure into the judiciary, most have put it within the                     
 administration.                                                               
                                                                               
 MR. STANCLIFF stated, "After consulting with Commissioner Boyer,              
 Representative Ogan decided that this administration was willing to           
 work with the legislature, as they did with you, Mr. Chairman, and            
 that we should put it within the administration because, after all,           
 it does serve an administrative function.  So, the independent                
 division was put, in this bill, in the Department of                          
 Administration."                                                              
                                                                               
 Number 0980                                                                   
                                                                               
 MR. STANCLIFF said that after considerable consultation with the              
 two out-of-state ALJs and review of written findings in law                   
 journals, Representative Ogan decided to place final decision-                
 making authority within the administration.  He explained, "And the           
 idea there was - and we discussed this with `Legal' - if it was               
 very autonomous, perhaps a recommendation-type approach would be              
 best.  If it was deep within the administration, then perhaps final           
 decision-making authority would be a good balance there."  Mr.                
 Stancliff suggested that Judge Felter could discuss other practical           
 and administrative advantages of the final decision-making                    
 authority.                                                                    
                                                                               
 MR. STANCLIFF reported that other options, such as grandfathering             
 in present hearing officers, laterally transferring them into this            
 new structure, were included in this bill.  Instead of the                    
 legislature establishing a code of conduct in the bill, that                  
 authority is given to the new chief administrative hearing officer.           
 Mr. Stancliff stated, "And also, rather than the governor appoint             
 someone, as they do in other states, by creating it ... at the                
 division level, this gives the commissioner, through the governor,            
 of course, the ability to appoint this person.  All three of those            
 negotiable items were included, because to offset that was the                
 final decision authority, over on the right side of that balance."            
                                                                               
 MR. STANCLIFF said by keeping the hearing function as an integral             
 part of the administration, it will be more able to withstand any             
 constitutional challenges.  He advised members that committee                 
 packets contained a memorandum from Legislative Legal and Research            
 Services, which states that it is the legislature's prerogative to            
 decided where in the administrative/executive branch of government            
 the adjudication decisions will be made.  He commented, "You can't            
 transfer it away from them.  But you can explain ... at what level            
 you want them to be made."                                                    
                                                                               
 Number 1091                                                                   
                                                                               
 MR. STANCLIFF said the Maryland courts had found that their                   
 legislature was fully able to delegate adjudicative powers.  He               
 stated that another power that HB 232 gives solely to the executive           
 is the option of the chief officer to adopt an official code of               
 conduct.  In this bill, however, it suggests that the code be based           
 on those sections of judicial canon applicable to conflicts of                
 interest, fairness and impartiality.                                          
                                                                               
 MR. STANCLIFF explained that Legislative Legal and Research                   
 Services personnel had been unsure what hearings the independent              
 division would handle; they had suggested that the cleanest and               
 most efficient place to start was those already listed under the              
 Administrative Procedure Act (APA) section of the statute.  Mr.               
 Stancliff noted that other legislatures "have deemed that those               
 folks should fall under APA procedure."  He indicated although the            
 list could be broadened, that was probably the most logical place             
 to start, in an expansion of the effort begun last year.                      
                                                                               
 MR. STANCLIFF indicated that Mr. Felter's experience has shown that           
 once this new structure is up and running, administrators soon                
 avail themselves of it.  Of the 18 states that have adopted the               
 central panels or this separation of powers, not one has repealed             
 the law.  And in every state, money and time have been saved.  Mr.            
 Stancliff said that Judge Felter's division receives a public                 
 approval rating of better than 97 percent for judges and 96 percent           
 for staff.  He concluded by saying the independent panels sell                
 themselves.                                                                   
                                                                               
 Number 1208                                                                   
                                                                               
 EDWIN L. FELTER, JR., Director and Chief Administrative Law Judge,            
 Division of Administrative Hearings, testified via teleconference             
 from Colorado, saying he had helped Hawaii in 1990 with its central           
 panel and had held his current position in Colorado for 14 years.             
 He had shepherded the model act, mentioned by Mr. Stancliff,                  
 through the House of Delegates from its beginnings.  He had also              
 shepherded the model code of judicial conduct for state ALJs                  
 through the National Conference of Administrative Law Judges.  He             
 stated, "But in dealing with Representative Scott Ogan's office, I            
 really believe that Alaska is ready to adopt a central panel model            
 and to do it for good government reasons."                                    
                                                                               
 JUDGE FELTER said there are two reasons why central panels come               
 into existence.  Usually, it is because of a scandal or perceived             
 conflict of interest.  However, more recently they have come into             
 existence for good government reasons, because everyone believes              
 there is more accountability to the citizens.                                 
                                                                               
 JUDGE FELTER said a central panel's primary product is fairness.              
 He believes that in Colorado and all other states with central                
 panels, citizens and industry groups perceive them as fair.  Other            
 important products are a high degree of professionalism in                    
 adjudication, efficiency, and dignified adjudications, to which he            
 believes citizens are entitled.                                               
                                                                               
 Number 1345                                                                   
                                                                               
 JUDGE FELTER said he would outline why legislatures and                       
 administrations alike support central panels and why they make                
 sense in terms of economics and adjudications.  He would also try             
 to dispel the myth of agency expertise and share a bit of                     
 Colorado's experience, in addition to making two or three                     
 recommendations on funding and how the administration of the panels           
 is set up.                                                                    
                                                                               
 JUDGE FELTER explained that legislatures and administrations like             
 central panels because of public perception; the panels are                   
 apolitical and provide high-quality due process to citizens.  "It's           
 really a citizen focus," he explained.  "That's one of our by-                
 words, `citizen-focused service.'  We're accountable for fairness             
 and efficiency in adjudications only, not in anything else.  One of           
 the cornerstones of an effective central panel is that there's                
 decisional independence yet there's accountability to the public."            
                                                                               
 JUDGE FELTER noted that Maryland has a large central panel; much of           
 their work is motor vehicle hearings, but they handle other areas             
 such as licensing boards.  He explained, "Before the central panel,           
 the budget for all the administrative adjudication was $6.8                   
 million; that was 1989.  It went up temporarily, but by 1993,                 
 inflation and all, it was a $6.7-million budget.  So, it's proven             
 to be cost-effective."                                                        
                                                                               
 Number 1412                                                                   
                                                                               
 JUDGE FELTER continued, "Why it makes adjudication sense, in terms            
 of perceptions of fairness and actual fairness, is central panel              
 hearing officers or ALJs really are not susceptible to unwritten or           
 in-house policies that only the agency knows.  Central panels force           
 agencies to adopt good rules because the agencies realize that the            
 primary obligation of the hearing officer or ALJ of the central               
 panel is to the statutes.  If a rule conflicts, the ALJ has to go             
 with the statute, knock down the rule."                                       
                                                                               
 JUDGE FELTER indicated that losing favor at both federal and state            
 levels is the idea that hearing officers are needed in the agencies           
 because of agency expertise.  He explained, "There are serious due            
 process problems with this approach, because how does a citizen               
 cross-examine some secret information or knowledge in the mind of             
 the so-called expert hearing officer for the agency?"  He said the            
 primary thinking today is that expertise is best presented through            
 experts to a professional judge or professional adjudicator.                  
                                                                               
 JUDGE FELTER continued, "Colorado experience, in brief:  We came              
 into existence in 1976. ... Your mission statement looks a lot like           
 ours.  It's to deliver high-quality ... and efficient adjudication            
 services to the citizen, with respect for the due process rights              
 and dignity of the citizens."  He said prior to workers'                      
 compensation reform in 1991, it took 11 months to get a hearing.              
 After the reform, they became efficient and were now providing                
 hearings within three months.  He stated, "It took two months to              
 get a decision out before; we were doing it in about nine days                
 afterwards, on the average.  And that is a finding of the                     
 legislative audit committee."                                                 
                                                                               
 JUDGE FELTER noted that Senator Bishop had praised them on the                
 senate floor in 1993 for reducing the backlog in workers'                     
 compensation cases by 95 percent, providing hearings in at least              
 one-third of the time and providing decisions in 9.6 days.                    
                                                                               
 Number 1554                                                                   
                                                                               
 JUDGE FELTER continued, "The private bar that represents citizens             
 that come before us in regulatory law has been one of our foremost            
 defenders.  When agencies have come to appreciate the role we                 
 provide for them, and that is being independent adjudicators, it              
 takes the monkey off their backs, where they can focus on rule-               
 making, investigating and prosecuting the cases, without worrying             
 about conflicts and nasty issues being raised on appeal to the                
 courts."                                                                      
                                                                               
 Number 1584                                                                   
                                                                               
 JUDGE FELTER said the chief and the hearing officers or ALJs need             
 some protections for their "decisional independence."  The                    
 personnel system offers protections and the model act builds                  
 protections in.  "It's not a good idea to have at-will ALJs," he              
 added.  Noting that he himself is a civil servant, he said other              
 chiefs are appointed by the governor for a fixed term, with the               
 advice and consent of the senate.  He suggested that ideally, the             
 best model is for the independent central panel and the executive,            
 at least the chief judge, to have the status of a cabinet officer,            
 if possible under the constitution.  However, it is not possible              
 under Colorado's constitution, which limits principal departments             
 to 22.  He himself is in the Department of General Support                    
 Services, which is the most neutral department because it has no              
 adjudication business per se.                                                 
                                                                               
 Number 1639                                                                   
                                                                               
 JUDGE FELTER continued, "Funding mechanism:  We had the Oregon                
 plan, which is cash-funded.  It's not the greatest thing in the               
 world when the central panel has to worry about revenue shortfalls,           
 when that's not really the principal mission.  It's falling into              
 disfavor throughout the United States.  Only two jurisdictions -              
 I'm kind of sad to say Colorado is one of them - still have the               
 Oregon plan."  He indicated Colorado would be going to another                
 system as well, a modified general fund model, `modified' because             
 Colorado has sources of funds other than general funds, such as               
 licensing fees and others.                                                    
                                                                               
 Number 1678                                                                   
                                                                               
 JUDGE FELTER concluded by suggesting if Alaska has a shot at the              
 ideal central panel, that is the best way to do it.  It takes                 
 agencies out of the adjudication business and puts them where they            
 are more effective for the citizens, in the areas of rule-making,             
 investigations, prosecutions and enforcement.                                 
                                                                               
 Number 1704                                                                   
                                                                               
 CHAIRMAN GREEN asked, "How many ALJs do you have and how many                 
 cases, roughly, a year?"                                                      
                                                                               
 JUDGE FELTER replied that they have 17 ALJs statewide, with                   
 regional offices in Grand Junction, Fort Collins and Colorado                 
 Springs.  For '95-'96, based on three-fourths of the fiscal year,             
 there were 6,967 hearings for 13,596 docketed cases, including                
 high-volume cases such as workers' compensation and human services            
 cases.  There were 13,839 decisions rendered.   Judge Felter said,            
 "One may ask why more decisions than cases docketed or hearings               
 held.  The reason is, you can get three or four decisions in one              
 case.  This is all done by, actually, 14.6 full-time employee                 
 judges.  We have some part-timers."                                           
                                                                               
 Number 1765                                                                   
                                                                               
 CHAIRMAN GREEN said that was a pretty hefty load, over 1,000 per              
 judge.                                                                        
                                                                               
 JUDGE FELTER agreed but said it is "sort of apples and oranges."              
 He offered to break it down.                                                  
                                                                               
 Number 1774                                                                   
                                                                               
 CHAIRMAN GREEN indicated that was unnecessary.  With Alaska being             
 far less populated than Colorado, he stated concern that                      
 establishing a pool of judges might be cost-prohibitive.  He                  
 mentioned a statute passed the previous year having to do with                
 taxation appeals; rather than having a pool, there was a different            
 avenue to establish the ALJ under that statute.  He suggested that            
 with as many ALJs as Colorado has, there would be no problem with             
 recusals.                                                                     
                                                                               
 CHAIRMAN GREEN asked whether there is a delay in bringing an ALJ up           
 to speed on intricate cases.                                                  
                                                                               
 JUDGE FELTER said no, because they actually have more expertise,              
 even in esoteric areas, than judicial branch judges have.   He said           
 administrative law is a limited area.  They have sections for                 
 workers' compensation, regulatory law and human services.  He                 
 stated, "The regulatory law section demands a high degree of                  
 expertise, which all our judges have; it's just through experience            
 and training, a medical board, for instance, transportation, in               
 water quality.  No, there's no delay at all."  He added that they             
 also must hire "hit-the-deck-running types."                                  
                                                                               
 Number 1871                                                                   
                                                                               
 CHAIRMAN GREEN, referring again to the previous year's legislation,           
 responded, "We kind of hit a snag with ours because Alaska's a                
 little bit unique, having to do with tax cases.  We have relatively           
 few, but they're magnificent in size.  And so, it required,                   
 perhaps, especially there, to get into really some of the very                
 strange nuances and tracking crude [oil] price around the world and           
 so on and so forth.  It appears that in a state like Colorado or a            
 more populous state that you would be covering far more cases, but            
 perhaps not any in such intricate detail."                                    
                                                                               
 JUDGE FELTER replied, "Oh, we do.  There are some cases that we do            
 that are in intricate detail, and we have not had a problem."  He             
 said the detriments of having an in-house specialist who may be               
 perceived to be too cozy with the agency are outweighed by the                
 benefits of the perception, by both sides, of having a fair and               
 impartial process; the only way to get that is by having a judge              
 who is outside of the agency.                                                 
                                                                               
 JUDGE FELTER restated that they have had no problems, although they           
 handle some fairly esoteric, specialized cases.  He explained, "The           
 way to do that is you zone in, if you have a broad array of talent.           
 And you have to have a smaller pool within the larger pool that is            
 equipped to hit the deck running on these highly specialized,                 
 technical, high-profile cases."                                               
                                                                               
 Number 1939                                                                   
                                                                               
 REPRESENTATIVE CROFT noted that scattered through Alaska's statutes           
 are a number of "special structure" hearing panels.  For example,             
 the one for workers' compensation contains a labor representative,            
 a business representative and a neutral one.  In addition, there              
 are a number of citizen panels.  He asked whether this would cut a            
 swath through all of those, with all the different types of                   
 adjudication being under one administrative law judge, for example,           
 who would or would not have a specialty.                                      
                                                                               
 JUDGE FELTER said that would depend on how broad they want it to              
 be.  Under the model act, the governor or legislature is given the            
 prerogative of exempting certain agencies.  Central panels differ.            
 For example, Colorado is one of only two states that has workers'             
 compensation in its central panel system.                                     
                                                                               
 JUDGE FELTER cited another example, saying Colorado had replaced              
 its industrial commission with an industrial claim appeals panel,             
 which contains lawyers with five years' experience, like the ALJs,            
 who are classified as ALJs in the personnel system.  "And it's                
 worked," Judge Felter said.  "The perceptions are a lot better now.           
 Adjudication is one thing.  You lose?  You appeal on up into the              
 courts, all the way to the supreme court, if necessary."  He                  
 restated that the structure depends on what the legislature wants             
 the central panel to do, adding, "And you can leave windows of time           
 to bring them in or exempt them out."                                         
                                                                               
 Number 2021                                                                   
                                                                               
 REPRESENTATIVE CROFT asked what Colorado exempts.                             
                                                                               
 JUDGE FELTER provided examples.  The public utilities commission is           
 exempted; they are at the same level as Judge Felter's agency.  He            
 stated, "The personnel board has ALJs who are at the same level as            
 we are, and they're within our department but then those ALJs are             
 accountable to the personnel board.  Then we have unemployment                
 insurance appeals referees, who are at a different level than we              
 are; they're at a lower level.  They're within the department of              
 labor and employment.  And we have the motor vehicles hearings                
 officers; that's drivers' licenses.  They're at a lower level.                
 They were exempted out."                                                      
                                                                               
 JUDGE FELTER concluded that there is no total, all-encompassing               
 central panel anywhere.  There are always some exemptions.                    
                                                                               
                                                                               
 Number 2066                                                                   
                                                                               
 REPRESENTATIVE OGAN thanked Judge Felter for his time.  He asked              
 what the budget is for his agency.                                            
                                                                               
 JUDGE FELTER said right now, it is $2.8 million per year.  They had           
 been able to demonstrate efficiency by analyzing costs per case.              
                                                                               
 Number 2092                                                                   
                                                                               
 REPRESENTATIVE OGAN advised the committee that more than $6 million           
 in adjudication costs had been identified for the state of Alaska,            
 for an estimated 3,500 to 4,000 cases per year.                               
                                                                               
 CHAIRMAN GREEN thanked Judge Felter for his testimony.                        
                                                                               
 JUDGE FELTER replied, "My pleasure.  Hope I can come up there some            
 time and help you out with your new central panel, if you go that             
 way."                                                                         
                                                                               
 Number 2142                                                                   
                                                                               
 NANCY WELLER, Medical Assistance Administrator, Division of Medical           
 Assistance, Department of Health and Social Services, came forward            
 to testify.  She stated, "We have one hearing officer in the                  
 Department of Health and Social Services whose appeals come under             
 the Administrative Procedure Act, and that's the hearing officer              
 who hears to rate-setting and audit appeals for the Medicaid Rate             
 Advisory Commission.  And the advisory commission sets rates for              
 the health care facilities that Medicaid pays; it's about 50                  
 percent of our budget.  So, there is a great deal of money at risk            
 for those hearings."                                                          
                                                                               
 MS. WELLER said the department has concerns because the rate-                 
 setting process is so complex and practically requires that a                 
 person be an accountant and be able to read cost reports in order             
 to understand it.  Therefore, they are concerned about how a judge            
 would be picked.                                                              
                                                                               
 MS. WELLER said their other concern is that the centralization of             
 functions in the Department of Administration have not always gone            
 incredibly well, in the perception of the other departments.  For             
 example, functions have been delegated back to departments because            
 they are better able to do those functions themselves.                        
                                                                               
 Number 2213                                                                   
                                                                               
 CHAIRMAN GREEN asked what the process is now.  He asked whether an            
 appeal would go to the ALJ or whether a case would go directly to             
 the ALJ.                                                                      
                                                                               
 MS. WELLER replied, "We have a hearing officer who hears the rate             
 appeals.  They go to that hearing officer, and then they go to                
 court."                                                                       
                                                                               
 CHAIRMAN GREEN said the ALJ, then, would be the hearing officer.              
 He asked whether that would be the first appeal.                              
                                                                               
 MS. WELLER said yes.                                                          
                                                                               
 CHAIRMAN GREEN asked, when it went to court, whether it would be de           
 novo or whether the de novo would be "a one-shot deal to the ALJ."            
                                                                               
 MS. WELLER said she was not sure.                                             
                                                                               
 Number 2249                                                                   
                                                                               
 REPRESENTATIVE PORTER asked whether the hearing officer would be              
 hearing cases appealed from decisions of the commissioner.                    
                                                                               
 CHAIRMAN GREEN said he was likewise wondering if it was the first             
 or second appeal.                                                             
                                                                               
 MS. WELLER said she did not believe that the commissioner of the              
 Department of Health and Social Services had ever been involved in            
 the hearing decisions.                                                        
                                                                               
 REPRESENTATIVE PORTER asked whether it was not a department                   
 decision that was being contested.                                            
                                                                               
 MS. WELLER said that the Medicaid Rate Advisory Commission                    
 determines the rates.  It would be that commission's decision that            
 would be appealed.                                                            
                                                                               
 REPRESENTATIVE PORTER asked whether the further appeal from that              
 would be to superior court.  (There was no audible response.)                 
                                                                               
 Number 2282                                                                   
                                                                               
 CHAIRMAN GREEN said, "So, you're not sure whether by having that              
 intermediate hearing -- that's actually the first appeal, so that             
 the superior court still could, then, have a de novo hearing, in              
 your case."                                                                   
                                                                               
 MS. WELLER replied, "I'm assuming that the process would not                  
 change, only the position would be relocated from our (indisc.--              
 simultaneous speech)."                                                        
                                                                               
 CHAIRMAN GREEN explained that he was honing in on this because it             
 was one problem with the tax issue he had mentioned relating to               
 previous legislation.                                                         
                                                                               
 Number 2316                                                                   
                                                                               
                                                                               
 REPRESENTATIVE JAMES said she had arrived late and missed part of             
 the presentation but was fairly familiar with the bill.  As to the            
 arguments that what they are doing works fine and that it is so               
 complicated that no one else can do it, Representative James said             
 she did not like those two reasons.  Saying she would have to                 
 review the statute, she asked whether the hearing officer was a               
 "sit-in" for the commissioner, with the commissioner actually                 
 making the decision, or whether the statute specified that it goes            
 to this person for the appeal of rate-setting decisions.                      
                                                                               
 MS. WELLER replied, "The hearing officer hears the appeals and they           
 are signed off `approved' by the commissioner."                               
                                                                               
 Number 2384                                                                   
                                                                               
 CHAIRMAN GREEN asked whether it was provided in HB 232 that the               
 right of de novo was at the superior court level or in the purview            
 of the hearing officer/ALJ.                                                   
                                                                               
 MR. STANCLIFF replied that the issue had not been raised and                  
 therefore was not in the bill.  He suggested that the committee may           
 want to look at Chairman Green's experience along those lines.                
                                                                               
 CHAIRMAN GREEN asked whether a fiscal note would be prepared,                 
 noting that he saw in the packets "some costs having to do with               
 other appeals."                                                               
                                                                               
 MR. STANCLIFF answered that the agencies were trying to assess what           
 the costs may be, which will be based on the ultimate direction               
 taken by the committee.  He said there were two fiscal notes, but             
 they were how-do-we-calculate-this types.                                     
                                                                               
 Number 2440                                                                   
                                                                               
 CHAIRMAN GREEN stated concern that with a low number of cases, they           
 may end up with a pool of highly-qualified people who may not be              
 utilized fully.  There was a potential waste of money because these           
 hearing officers would be fairly expensive.                                   
                                                                               
 MR. STANCLIFF agreed and said the model act requires cross-                   
 training.                                                                     
                                                                               
 TAPE 97-69, SIDE B                                                            
 Number 0006                                                                   
                                                                               
 MR. STANCLIFF stated that cross-training is an absolute necessity,            
 which is why the bill includes requirements for additional                    
 training.  He said Mr. Felter's division has accomplished that                
 well.                                                                         
                                                                               
 Number 0021                                                                   
                                                                               
                                                                               
 REPRESENTATIVE OGAN referred to the fiscal note question and said             
 they had a difficult time even identifying through Legislative                
 Research the approximately $6 million of costs.  He stated, "They             
 didn't get all the information from all the agencies.  And I don't            
 think anybody's ever quantified the exact costs of administrative             
 hearings."  He suggested that will be a valuable exercise with this           
 legislation.                                                                  
                                                                               
 Number 0041                                                                   
                                                                               
 REPRESENTATIVE JAMES asked Representative Ogan:  Under HB 232, if             
 an administrative hearing was heard by this panel and a person was            
 unhappy with the result, would there be binding arbitration or some           
 other appeal provided before that person could go to court?                   
                                                                               
 REPRESENTATIVE OGAN replied that a clause allows the administrative           
 hearing officer to have people seek other forms of mediation or               
 dispute resolution before going to the hearing officer.  However,             
 the hearing officer will have the final say.  "So, it's appealed to           
 the superior court," he added.                                                
                                                                               
 Number 0082                                                                   
                                                                               
 REPRESENTATIVE JAMES said she was a little confused.  She asked               
 whether this panel would provide a formal appeal following an                 
 administrative appeal if there was a problem, or whether the                  
 regular administrative appeal itself would go through the panel.              
                                                                               
 MR. STANCLIFF replied, "The regular administrative appeal."                   
                                                                               
 Number 0106                                                                   
                                                                               
 REPRESENTATIVE JAMES asked, "Do you know whether their going to               
 court is an original appeal or whether it's appealing the decision            
 of the commissioner, in which case they would have to provide the             
 information that the commissioner used ... to base their decision             
 on.  In other words, is it de novo?  Do they start all over ... or            
 do they appeal the decision?"                                                 
                                                                               
 Number 0135                                                                   
                                                                               
 MR. STANCLIFF replied that under the bill, if a person appeals a              
 regulation, the commissioner would request a hearing officer and an           
 ALJ or hearing officer would be assigned, whose decision would be             
 final.  The only appeal beyond that would be to the courts.  Mr.              
 Stancliff stated, "And that first appeal would be considered that             
 first decision of record.  And then the docket is shipped to the              
 court for final review."                                                      
                                                                               
 REPRESENTATIVE JAMES said it would not be a de novo trial, then.              
                                                                               
 CHAIRMAN GREEN asked, "Unless the court so chose?"                            
                                                                               
 Number 0161                                                                   
                                                                               
 MR. STANCLIFF explained, "There is a provision in the bill, if the            
 court remands it back, and, as they can now, under administrative             
 law, there is a provision for the hearing officer to handle that.             
 The committee should also know that the long list of people who               
 aren't included in this bill, the commissioners can, as an option,            
 use the agency.  They can also say to the agency, `You have final             
 decision-making authority.'  They don't necessarily have to say               
 that.  In that case, ... if they don't agree with the decision,               
 then the commissioner can take it under review, unless they've                
 given final decision authority.  So, there's an option for people             
 to start using the agency, even though they're not included on the            
 mandatory list, as set out under the APA."                                    
                                                                               
 Number 0189                                                                   
                                                                               
 REPRESENTATIVE JAMES said she understood the theory because it is             
 one she has pursued for a long time from another angle.  She                  
 suggested that when those who write the regulations also enforce              
 them and determine the appeals, it resembles tyranny.  This would             
 remove the appeals, so they would be conducted separately.                    
 However, she needed to study the bill further to see how it would             
 physically work.                                                              
                                                                               
 Number 0223                                                                   
                                                                               
 REPRESENTATIVE CROFT said he would also like to study the bill                
 more.  He asked how it differs from the model upon which it was               
 based, whether it was from the American Bar Association, Maryland             
 or Colorado.  He noted that there was a lot of overlap.                       
                                                                               
 Number 0240                                                                   
                                                                               
 REPRESENTATIVE OGAN said other states had found that when a case is           
 adjudicated before an independent hearing officer, it tends to be             
 done a little more carefully.  He speculated that agencies, in                
 hearing their own regulations in-house and answering to that                  
 commissioner, know that the appeal may be before the same hearing             
 officer.  Under the proposed system, other states have found that             
 less administrative problems spill over into superior court because           
 the job is being done better and more impartially.                            
                                                                               
 REPRESENTATIVE JAMES suggested that from an open, unbiased                    
 perspective, one could better see whether it was the writing of the           
 regulation or the enforcement that was flawed.  Pride of authorship           
 in that process, on the other hand, created a problem of separating           
 those issues.  She noted that the appeal is where the decisions are           
 made.  She emphasized that she supports that kind of separation if            
 it is possible and financially feasible.                                      
                                                                               
 CHAIRMAN GREEN announced that before hearing from David Cruz via              
 teleconference, they would take up another matter.                            
                                                                               
 CONFIRMATION HEARING ON GOVERNOR'S APPOINTMENT TO:                            
 Violent Crimes Compensation Board                                             
                                                                               
 Number 0347                                                                   
                                                                               
 CHAIRMAN GREEN said that while they had a quorum, he wanted to hear           
 from Leslie Wheeler regarding her appointment to the Violent Crimes           
 Compensation Board.  He advised Ms. Wheeler that the committee had            
 read her dossier.  He asked whether she wished to make any                    
 statements.                                                                   
                                                                               
 LESLIE B. WHEELER testified briefly via teleconference, saying she            
 has worked with domestic violence and sexual assault victims for              
 over 20 years and has served on the Violent Crimes Compensation               
 Board as an interim appointee for about a year.  "I think it's                
 extremely important work, and I'm happy to be involved in it," she            
 concluded.  She offered to answer questions.                                  
                                                                               
 CHAIRMAN GREEN asked if there were questions, then thanked her.               
                                                                               
 Number 0393                                                                   
                                                                               
 REPRESENTATIVE PORTER made a motion that the committee forward                
 Leslie Wheeler's name to the full body for consideration of her               
 appointment to the Violent Crimes Compensation Board.  There being            
 no objection, it was so ordered.                                              
                                                                               
 HB 232 - INDEPENDENT DIV. OF ADMIN. HEARINGS                                  
                                                                               
 CHAIRMAN GREEN again brought HB 232 before the committee and called           
 upon David Cruz to testify.                                                   
                                                                               
 Number 0408                                                                   
                                                                               
 DAVID CRUZ testified via teleconference, saying he is one of the              
 owners of Cruz Construction, Incorporated, a general contractor               
 with a specialty in clearing land.                                            
                                                                               
 MR. CRUZ recounted how he had been involved with the hearing                  
 procedure under the Department of Labor.  His company was the                 
 successful subcontractor for clearing the right-of-way for a                  
 highway, a large project for the Department of Transportation and             
 Public Facilities (DOT/PF).  A provision in their specifications              
 said that all timber became the possession of the contractor, for             
 sale and removal.                                                             
                                                                               
 MR. CRUZ reported that they had sold the wood, of salvage value, to           
 a sawmill operator for one dollar.  Mr. Cruz's company did the                
 clearing and got the wood to the side of the road.  The sawmill               
 operator picked up what he wanted.  Mr. Cruz noted that the sawmill           
 operator was not required by the DOT/PF to be a subcontractor.                
                                                                               
 MR. CRUZ explained that one of the sawmill operator's employees               
 filed a labor claim against the operator.  The Department of Labor            
 came out and investigated, questioning Mr. Cruz and people working            
 for both him and the sawmill owner; they then ruled that the work             
 for which the wood had been purchased was subject to Davis-Bacon              
 wage requirements.                                                            
                                                                               
 MR. CRUZ pointed out that he'd had the option of burning the wood             
 by the side of the highway but had chosen to salvage it out of good           
 stewardship.                                                                  
                                                                               
 MR. CRUZ said they went through the process with the hearing                  
 officer, the investigator.  He stated, "He's not a lawyer; neither            
 am I.  He cited some cases that had no relevance to what went on to           
 the job here."  Mr. Cruz indicated although the claim was not                 
 against him, he was working with the sawmill operator, who couldn't           
 get anywhere.  Speaking of the hearing officer, he said, "This guy            
 was just jury and executioner.  We did not have an appeal process             
 with anybody else other than him.  He made his ruling; we had to              
 appeal back to him."                                                          
                                                                               
 MR. CRUZ believed that if they had gone to an unbiased third party            
 who could look at whether a contract issued to the DOT/PF required            
 a subcontract, the person who bought the wood would have had his              
 eyes opened and there wouldn't have been any question about the               
 Davis-Bacon wage rates.  Mr. Cruz stated, "This was never done.               
 And so, we were just basically railroaded into it.  It was not                
 enough money to sue for.  It was $7,000.  And so, we couldn't go to           
 ... a court for that kind of dollars."                                        
                                                                               
 Number 0549                                                                   
                                                                               
 MR. CRUZ said the sawmill operator could not pay the wage claim and           
 therefore the Department of Labor issued an order to the DOT/PF to            
 retain it from Mr. Cruz's contract; it cost Mr. Cruz $7,000.  He              
 believed that had there been a process by which he could appeal to            
 an impartial board or judge, the outcome would have been different.           
 Mr. Cruz concluded by stating he was fully supportive of HB 232.              
                                                                               
 Number 0581                                                                   
                                                                               
 REPRESENTATIVE JAMES asked the sponsor where in this process the              
 hearing officer being considered under HB 232 would fit in.                   
 Specifically, would be in appealing the decision of the person from           
 the Department of Labor who investigated on-site?                             
                                                                               
 Number 0621                                                                   
                                                                               
                                                                               
 MR. STANCLIFF said that was correct.  The decision would have come            
 down; the contractor would have taken issue with the decision; and            
 theoretically, the hearing officer under this scenario would have             
 been involved.                                                                
                                                                               
 MR. STANCLIFF advised members that he had been present at that                
 first hearing.  He said, "I also want to state for the record that            
 I was there when the person from the Department of Labor suggested,           
 in no uncertain terms, that the two people, Mr. Cruz and Mr. Bell             
 (ph), should tone down their rhetoric or other activities that they           
 were involved in would be looked into.  And ... the Labor person              
 did that knowing fully well who I was, as a staff person for our              
 representative at the time.  I was shocked."                                  
                                                                               
 Number 0670                                                                   
                                                                               
 REPRESENTATIVE JAMES mentioned delineating where the complaint was.           
 She asked:  If the employee complained that the sawmill operator              
 was not paying him, did that employee ever, in this procedure, say            
 that he was working for the contractor that had the contract with             
 the DOT/PF?  She noted that the contractor ended up paying.                   
                                                                               
 MR. STANCLIFF said that was part of the problem.  He explained,               
 "The wood was, in fact, by contract, the private possession of the            
 subcontractor.  The person he sold it to was not ... any part of              
 the contract.  But because they saw an opportunity to perhaps                 
 exploit, in my opinion, they filed a grievance for Davis-Bacon                
 wages."  He said under HB 232, the department would have made an              
 initial finding and then the contractor would have appealed it to             
 an independent hearing officer.                                               
                                                                               
 Number 0720                                                                   
                                                                               
 CHAIRMAN GREEN suggested that, with the exception that there may be           
 arbitration or some form of mediation before it would go to the               
 ALJ, there would be only the one review within a particular                   
 department.                                                                   
                                                                               
 MR. STANCLIFF affirmed that and said there is an encouragement                
 within the bill to use alternative dispute resolution, if possible,           
 before it gets to that level.                                                 
                                                                               
 Number 0742                                                                   
                                                                               
 REPRESENTATIVE JAMES said, using this case as an example, that it             
 is not one internal review but rather one internal decision; the              
 appeal of that decision would go directly to this group.  She added           
 that there is nothing to dispute until there has been a decision.             
                                                                               
 CHAIRMAN GREEN said as he understood it, it would have been                   
 reviewed internally and then would have gone to the ALJ.                      
                                                                               
                                                                               
 REPRESENTATIVE JAMES said her question was whether they would have            
 had that review under this bill.  "And they said no," she stated,             
 adding that the decision would have gone directly to the panel.               
                                                                               
 Number 0775                                                                   
                                                                               
 CHAIRMAN GREEN expressed concern about where the internal appeal              
 would be, other than perhaps some sort of dispute resolution prior            
 to going to the ALJ.                                                          
                                                                               
 REPRESENTATIVE OGAN responded, "I think it's up to the discretion             
 of the administrative law judge where that might be.  And I'm not             
 sure how the other states work."  He added that he would doubt that           
 an ALJ would threaten someone who contested a case with looking               
 into more cases.                                                              
                                                                               
 Number 0807                                                                   
                                                                               
 CHAIRMAN GREEN announced that because there were unanswered                   
 questions and they needed to digest the information, the committee            
 would hold HB 232 over.                                                       
                                                                               
 ADJOURNMENT                                                                   
                                                                               
 Number 0824                                                                   
                                                                               
 CHAIRMAN GREEN adjourned the House Judiciary Standing Committee               
 meeting at 4:35 p.m.                                                          
                                                                               

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