Legislature(2007 - 2008)

03/26/2007 02:44 PM House JUD


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
                         March 26, 2007                                                                                         
                           2:44 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Jay Ramras, Chair                                                                                                
Representative Nancy Dahlstrom, Vice Chair                                                                                      
Representative John Coghill                                                                                                     
Representative Bob Lynn                                                                                                         
Representative Ralph Samuels                                                                                                    
Representative Max Gruenberg                                                                                                    
Representative Lindsey Holmes                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Craig Johnson                                                                                                    
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 175                                                                                                              
"An Act relating to the prohibition of the exercise of the power                                                                
of eminent domain against a recreational structure for the                                                                      
purposes of developing a recreational facility or project."                                                                     
                                                                                                                                
     - MOVED CSHB 175(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
HOUSE BILL NO. 187                                                                                                              
"An Act relating to holders of business license endorsements for                                                                
sales of tobacco products."                                                                                                     
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
HOUSE BILL NO. 133                                                                                                              
"An Act relating to requiring electronic monitoring as a special                                                                
condition of probation for offenders whose offense was related                                                                  
to a criminal street gang."                                                                                                     
                                                                                                                                
     - MOVED CSHB 133(JUD) OUT OF COMMITTEE                                                                                     
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 175                                                                                                                  
SHORT TITLE: EMINENT DOMAIN; RECREATIONAL STRUCTURES                                                                            
SPONSOR(S): REPRESENTATIVE(S) JOHNSON                                                                                           
                                                                                                                                
03/05/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/05/07       (H)       JUD, FIN                                                                                               
03/14/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/14/07       (H)       Heard & Held                                                                                           
03/14/07       (H)       MINUTE(JUD)                                                                                            
03/16/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
03/16/07       (H)       -- MEETING CANCELED --                                                                                 
03/26/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 187                                                                                                                  
SHORT TITLE: TOBACCO SALES VIOLATIONS                                                                                           
SPONSOR(S): REPRESENTATIVE(S) JOHANSEN                                                                                          
                                                                                                                                
03/12/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
03/12/07       (H)       JUD, FIN                                                                                               
03/26/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
BILL: HB 133                                                                                                                  
SHORT TITLE: ELECTRONIC MONITORING OF GANG PROBATIONER                                                                          
SPONSOR(S): REPRESENTATIVE(S) BUCH                                                                                              
                                                                                                                                
02/14/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/14/07       (H)       JUD, FIN                                                                                               
02/19/07       (H)       JUD AT 1:30 PM CAPITOL 120                                                                             
02/19/07       (H)       Scheduled But Not Heard                                                                                
02/21/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
02/21/07       (H)       Heard & Held                                                                                           
02/21/07       (H)       MINUTE(JUD)                                                                                            
03/26/07       (H)       JUD AT 1:00 PM CAPITOL 120                                                                             
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
DAVID SCOTT, Staff                                                                                                              
to Representative Kyle Johansen                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented HB 187 on behalf of the sponsor,                                                                 
Representative Johansen.                                                                                                        
                                                                                                                                
RANDALL RUARO, Staff                                                                                                            
to Representative Kyle Johansen                                                                                                 
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Assisted with the presentation of HB 187 on                                                                
behalf of the sponsor, Representative Johansen.                                                                                 
                                                                                                                                
STEVE RUSH                                                                                                                      
Holiday Stationstores, Inc.                                                                                                     
(No address provided)                                                                                                           
POSITION STATEMENT:  During discussion of HB 187, provided                                                                      
comments and asked the committee to pass the bill.                                                                              
                                                                                                                                
JASON B. MOULTON, Loss Prevention Director                                                                                      
Safeway, Inc.                                                                                                                   
(No address provided)                                                                                                           
POSITION STATEMENT:  During discussion of HB 187, provided                                                                      
comments.                                                                                                                       
                                                                                                                                
KIP KNUDSON, External Affairs Manager                                                                                           
Tesoro Alaska Company                                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During discussion of HB 187, provided                                                                      
comments.                                                                                                                       
                                                                                                                                
DIANE CASTO, Section Manager                                                                                                    
Prevention and Early Intervention Section                                                                                       
Division of Behavioral Health (DBH)                                                                                             
Department of Health and Social Services (DHSS)                                                                                 
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Testified in opposition to HB 187 as                                                                       
currently written.                                                                                                              
                                                                                                                                
CYNTHIA DRINKWATER, Assistant Attorney General                                                                                  
Commercial/Fair Business Section                                                                                                
Civil Division (Anchorage)                                                                                                      
Department of Law (DOL)                                                                                                         
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 187 as                                                                       
currently written.                                                                                                              
                                                                                                                                
EMILY NENON, Director                                                                                                           
Alaska Government Relations                                                                                                     
American Cancer Society (ACS)                                                                                                   
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 187.                                                                         
                                                                                                                                
SUZANNE MEUNIER, Director of Advocacy                                                                                           
American Stroke Association (ASA)                                                                                               
American Heart Association (AHA)                                                                                                
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 187.                                                                         
                                                                                                                                
REPRESENTATIVE BOB BUCH                                                                                                         
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Sponsor of HB 133.                                                                                         
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CHAIR JAY  RAMRAS called the  House Judiciary  Standing Committee                                                             
meeting  to  order at  2:44:22  PM.   Representatives  Dahlstrom,                                                             
Coghill, Samuels,  Lynn, Holmes, and  Ramras were present  at the                                                               
call to order.   Representative Gruenberg arrived  as the meeting                                                               
was in progress.  Representative Johnson was also in attendance.                                                                
                                                                                                                                
HB 175 - EMINENT DOMAIN; RECREATIONAL STRUCTURES                                                                              
                                                                                                                                
2:45:10 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  first order of business would be                                                               
HOUSE BILL  NO. 175, "An Act  relating to the prohibition  of the                                                               
exercise of  the power of  eminent domain against  a recreational                                                               
structure for the purposes of  developing a recreational facility                                                               
or project."                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM  moved to  adopt the  proposed committee                                                               
substitute  (CS)  for  HB   175,  Version  25-LS0619\E,  Bullock,                                                               
3/16/07, as the work draft.   There being no objection, Version E                                                               
was before the committee.                                                                                                       
                                                                                                                                
REPRESENTATIVE COGHILL  explained that  Version E  now stipulates                                                               
that  the  term,  "recreational   structure"  means  a  permanent                                                               
structure that is used by the  owner of or beneficiary of a trust                                                               
holding legal title  to the structure as a  dwelling for seasonal                                                               
recreational purposes.                                                                                                          
                                                                                                                                
2:46:15 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM moved  to report the proposed  CS for HB
175,  Version 25-LS0619\E,  Bullock,  3/16/07,  out of  committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.   There  being no  objection, CSHB  175(JUD) was  reported                                                               
from the House Judiciary Standing Committee.                                                                                    
                                                                                                                                
HB 187 - TOBACCO SALES VIOLATIONS                                                                                             
                                                                                                                                
2:46:46 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced  that the next order of  business would be                                                               
HOUSE  BILL NO.  187, "An  Act  relating to  holders of  business                                                               
license endorsements for sales of tobacco products."                                                                            
                                                                                                                                
2:47:53 PM                                                                                                                    
                                                                                                                                
DAVID SCOTT, Staff to Representative  Kyle Johansen, Alaska State                                                               
Legislature, said on behalf  of Representative Johansen, sponsor,                                                               
that  HB 187  addresses  the  current lack  of  due process  that                                                               
tobacco  retailers  face   during  business  license  enforcement                                                               
proceedings under  AS 43.70.075.   In  the Alaska  Superior Court                                                               
case, Holiday  Alaska, Inc. v.  State of Alaska, the  court ruled                                                             
that  AS 43.70.075(d)  was unconstitutional  because it  violated                                                               
Holiday's  due process  rights.   House  Bill  187 proposes  that                                                               
holders of business license endorsements  for the sale of tobacco                                                               
products   be  afforded   a   hearing   wherein  mitigating   and                                                               
aggravating factors  can be considered  by an  administrative law                                                               
judge.  Currently the state  is not obligated to prove negligence                                                               
on the  part of the  endorsement holder when a  violation occurs;                                                               
instead, the  conviction of the endorsement  holder's employee is                                                               
sufficient  to subject  the endorsement  holder to  the penalties                                                               
outlined in statute for such violations.                                                                                        
                                                                                                                                
MR.  SCOTT   explained  that  Section   1  stipulates   that  the                                                               
department must conduct a hearing  under proposed AS 43.70.075(m)                                                               
before  suspending  an endorsement;  that  Section  2 expands  AS                                                               
43.70.075(m) such  that the hearing officer  may consider whether                                                               
the    endorsement   holder    negligently   violated    Alaska's                                                               
prohibitions  on  the  sale  of   tobacco  products  to  underage                                                               
persons, as well  as any evidence that might tend  to mitigate or                                                               
aggravate the length of suspension  and penalty; and that Section                                                               
3 allows the  department to reduce the  license suspension period                                                               
if  the  endorsement holder  establishes  that  a written  policy                                                               
prohibiting the sale of tobacco  products to underage persons was                                                               
adopted  and enforced  prior to  the date  of the  violation, and                                                               
allows the department  and the endorsement holder to  agree to an                                                               
informal disposition of a suspension.                                                                                           
                                                                                                                                
MR. SCOTT,  in conclusion, said  that HB  187 is not  intended to                                                               
decrease suspension  periods and penalties applied  to businesses                                                               
that routinely, negligently, and  knowingly sell tobacco products                                                               
to underage persons.                                                                                                            
                                                                                                                                
REPRESENTATIVE COGHILL  referred to  the language in  proposed AS                                                               
43.70.075(m)(5) and asked for  clarification regarding what would                                                               
be considered mitigating or aggravating factors.                                                                                
                                                                                                                                
2:52:21 PM                                                                                                                    
                                                                                                                                
RANDALL  RUARO, Staff  to  Representative  Kyle Johansen,  Alaska                                                               
State  Legislature, said  on behalf  of Representative  Johansen,                                                               
sponsor,  that a  mitigating  factor could  be  simply having  an                                                               
employee  manual that  specifically outlines  the prohibition  on                                                               
selling  tobacco products  to underage  persons and  provides for                                                               
the  automatic  discharge  of  an   employee  who  violates  that                                                               
prohibition,  or  posting signs  in  the  business regarding  the                                                               
prohibition,  or programming  the cash  registers to  require the                                                               
input  of  a  birth  date  when selling  tobacco  products.    He                                                               
surmised that  there are probably  a number of other  things that                                                               
an  employer can  do to  ensure  that tobacco  sales to  underage                                                               
persons don't occur,  and offered that paragraph (5)  is meant to                                                               
be a catch-all provision that  would allow the endorsement holder                                                               
to mention such things during the hearing.                                                                                      
                                                                                                                                
CHAIR RAMRAS  observed that with  regard to the sale  of alcohol,                                                               
if  a  server  has  received [techniques  in  alcohol  management                                                               
(TAM)]  training  and  fails  to  check  a  minor's  ID,  statute                                                               
requires  that  this fact  go  on  the  permanent record  of  the                                                               
licensee while  the penalties accrue  to the server;  however, if                                                               
the licensee doesn't employ TAM-trained  servers, that fact could                                                               
be considered  an aggravator as  could a history of  the licensee                                                               
continuing  to serve  alcohol to  minors.   He suggested  that in                                                               
this  way both  the retail  alcoholic beverage  industry and  the                                                               
retail tobacco industry  have a litmus test regarding  the age at                                                               
which one can purchase such products.                                                                                           
                                                                                                                                
REPRESENTATIVE  COGHILL observed  that paragraph  (5) really  has                                                               
two parts:   the potential for  a mitigator to affect  the length                                                               
of  suspension and  civil  penalty  that may  be  imposed, and  a                                                               
possible reduction in the length  of the period of suspension and                                                               
penalty based  on the  fact that not  granting a  reduction would                                                               
not be  in the  public's interest.   He  asked why  paragraph (5)                                                               
includes both of these two seemingly different provisions.                                                                      
                                                                                                                                
MR. RUARO offered  that the first part of  paragraph (5) pertains                                                               
to the  evidence that the  endorsement holder could  bring forth,                                                               
whereas the second  part of paragraph (5) sets out  a standard by                                                               
which  the  administrative law  judge  could  use to  reduce  the                                                               
period  of   suspension  and   penalty  after   consideration  of                                                               
mitigating and aggravating factors.                                                                                             
                                                                                                                                
REPRESENTATIVE COGHILL said  he can envision the  phrase, "in the                                                               
public interest" engendering an argument regarding its meaning.                                                                 
                                                                                                                                
MR. RUARO concurred,  but relayed that [the  sponsor and drafter]                                                               
have not yet had an opportunity to develop alternative language.                                                                
                                                                                                                                
REPRESENTATIVE  HOLMES,  acknowledging   that  current  statutory                                                               
language  has  been  ruled  by  the  court  to  be  violating  an                                                               
endorsement holder's  due process rights, questioned  whether the                                                               
bill  provides for  more change  than needed  to address  the due                                                               
process problem.                                                                                                                
                                                                                                                                
MR. SCOTT acknowledged that under  HB 187, the administrative law                                                               
judge would have new discretion.                                                                                                
                                                                                                                                
REPRESENTATIVE  COGHILL said  he would  be interested  in knowing                                                               
what the  basis is for  allowing for  a change in  the suspension                                                               
period and penalty.                                                                                                             
                                                                                                                                
REPRESENTATIVE GRUENBERG asked whether  the Holiday case has been                                                             
appealed.                                                                                                                       
                                                                                                                                
MR.  RUARO said  no, and  relayed that  the time  for appeal  has                                                               
passed.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked  whether  there  are  any  other                                                               
similar cases pending.                                                                                                          
                                                                                                                                
MR. RUARO said not that he is aware of.                                                                                         
                                                                                                                                
3:02:38 PM                                                                                                                    
                                                                                                                                
STEVE RUSH,  Holiday Stationstores, Inc., asked  the committee to                                                               
pass  HB 187  as being  in the  interest of  the retail  business                                                               
community in Alaska that sells  tobacco products.  He offered his                                                               
understanding  that HB  187 does  nothing to  change the  current                                                               
penalties, which he  characterized as being the  strongest in the                                                               
country.  If  a retailer is negligent in the  way it conducts its                                                               
business,  he  remarked,  it deserves  to  have  its  endorsement                                                               
suspended, adding  that his  organization strongly  supports that                                                               
approach.   He  characterized a  tobacco endorsement  as valuable                                                               
property worthy  of protection  under the  due process  clause of                                                               
both the U.S. Constitution and the Alaska State Constitution.                                                                   
                                                                                                                                
MR.  RUSH explained  that under  current  law, once  there is  an                                                               
alleged failed  compliance check, the  employee is charged  as an                                                               
individual    and   the    employee    always   pleads    guilty.                                                               
Unfortunately, when  this happens,  the retailer is  not provided                                                               
notice of that  hearing and is not allowed to  participate in it,                                                               
but  once  the employee  is  convicted,  the license  enforcement                                                               
proceeding  begins  and  the  state   need  not  prove  that  the                                                               
endorsement holder  is guilty or  negligent - it need  only prove                                                               
that the  employee was found  guilty of selling  tobacco products                                                               
to  an underage  person.   It  is a  violation  of Holiday's  due                                                               
process  right  to  be  punished based  upon  the  conviction  of                                                               
another person  during a  proceeding that it  was not  allowed to                                                               
participate in.  He  said it is frustrating to not  be able to do                                                               
anything  whatsoever   to  affect  the  outcome   of  the  second                                                               
proceeding; that  outcome is predetermined simply  because of the                                                               
guilty verdict of the employee in the first proceeding.                                                                         
                                                                                                                                
MR. RUSH  spoke of the  few violations that his  organization was                                                               
found  guilty of  immediately following  the  acquisition of  its                                                               
Alaska stores, and  said that the 20-day suspension  period has a                                                               
huge  effect on  an  endorsement holder  because  in addition  to                                                               
buying tobacco, customers also spend  money on other products the                                                               
business makes  available, but when  they are unable  to purchase                                                               
tobacco products,  they go elsewhere  for their  tobacco products                                                               
and  those  other products  as  well,  sometimes even  after  the                                                               
suspension period has elapsed.                                                                                                  
                                                                                                                                
CHAIR RAMRAS  pointed out that  although he is supportive  of the                                                               
bill, the  current rules  regarding both the  sale of  alcohol to                                                               
minors and  the sale of tobacco  products to minors are  in place                                                               
to  protect minors  and the  general public,  and so  he is  also                                                               
supportive of those rules and restrictions.                                                                                     
                                                                                                                                
3:11:59 PM                                                                                                                    
                                                                                                                                
MR. RUSH said  that his organization merely wants  the ability to                                                               
present evidence at the aforementioned  proceedings and have that                                                               
evidence mean  something in terms  of the potential outcome.   In                                                               
response   to  an   earlier  question,   he  suggested   that  an                                                               
aggravating factor  could be  the fact that  it was  a business's                                                               
manager  that  failed  the  compliance  check.    He  noted  that                                                               
proposed  subsection (m)(4)  speaks  to  whether the  endorsement                                                               
holder has appropriate  protections in place to  prevent the sale                                                               
of tobacco  products to underage persons.   He opined that  it is                                                               
important,  at   a  sentencing  proceeding,  for   the  judge  to                                                               
determine what  the appropriate penalty  is.  For example,  if an                                                               
endorsement  holder  has  some of  the  protections  outlined  in                                                               
proposed  AS 43.70.075(t)  but not  all,  the endorsement  holder                                                               
ought to  be found to be  less guilty than an  endorsement holder                                                               
who didn't care enough about  complying with the law to institute                                                               
any  of the  protections  outlined in  subsection (t);  likewise,                                                               
should   aggravators  be   found  in   a  particular   case,  the                                                               
administrative law judge should  impose the maximum penalties and                                                               
suspensions available.                                                                                                          
                                                                                                                                
MR. RUSH said that in  the aforementioned Holiday case, the court                                                             
relied primarily  on Frontier Saloon, Inc.  v. Alcoholic Beverage                                                             
Control Board, and  on Javed v. Department of Public  Safety.  He                                                           
opined  that it  is  very telling  that the  state  chose not  to                                                               
appeal Holiday, and again reiterated  his belief that HB 187 does                                                             
nothing  to change  the current  penalty scheme  for the  sale of                                                               
tobacco  products  to  underage  persons.     He  said  that  his                                                               
organization  supports the  current penalty  scheme and  requests                                                               
that HB 187 be passed out of the committee.                                                                                     
                                                                                                                                
CHAIR RAMRAS said the committee  is looking to remedy the current                                                               
problem with the law but not in  such a way that one could "drive                                                               
a Mack truck through it."                                                                                                       
                                                                                                                                
REPRESENTATIVE DAHLSTROM  asked Mr. Rush what  his organization's                                                               
policy is  regarding what  happens to  employees who  violate the                                                               
law  and  whether  management and  non-management  employees  are                                                               
treated differently under that policy.                                                                                          
                                                                                                                                
MR.  RUSH relayed  that the  policy is  one of  "virtually almost                                                               
zero  tolerance," particularly  for management  personnel, though                                                               
if  there is  enough evidence  for his  organization to  conclude                                                               
that  the individual  wasn't negligent,  the  individual may  not                                                               
necessarily be fired.                                                                                                           
                                                                                                                                
CHAIR  RAMRAS -  acknowledging the  high standards  maintained in                                                               
stores owned  by Holiday Stationstores,  Inc. - pointed  out that                                                               
current law must  apply to all who engage in  the retail sales of                                                               
tobacco products, and his concern  centers on the businesses that                                                               
don't have as  high a standard for how they  conduct their retail                                                               
tobacco  product business;  all endorsement  holders must  comply                                                               
with a universal standard.                                                                                                      
                                                                                                                                
3:20:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG surmised that  at issue is the liability                                                               
of  an organization  for the  act of  its employee,  and remarked                                                               
that AS 11.16.130 specifically speaks  to the procedure currently                                                               
authorized  in [AS  43.70.075];  in  part, AS  11.16.130(a)(1)(A)                                                               
says:                                                                                                                           
                                                                                                                                
     Sec.    11.16.130.        Legal    accountability    of                                                                    
     organizations.    (a)  Except  as  otherwise  expressly                                                                    
     provided,  an organization  is legally  accountable for                                                                    
     conduct constituting an offense if the conduct                                                                             
          (1) is the conduct of its agent and                                                                                   
         (A) within the scope of the agent's employment                                                                         
     and in behalf of the organization;                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  opined that  although it  is a  part of                                                               
the criminal  code, this  statute establishes  that if  the agent                                                               
operates negligently, it is enough  to find criminal liability on                                                               
the part of the corporation.   He said he finds it troubling that                                                               
there has  not yet  been recognition of  this statute  which sets                                                               
the standard  for the criminal responsibility  of an organization                                                               
for the acts of its agents.                                                                                                     
                                                                                                                                
REPRESENTATIVE  SAMUELS  said  he disagrees  with  Representative                                                               
Gruenberg's interpretation of AS 11.16.130.                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG countered  that  a representative  from                                                               
the  Department of  Law (DOL)  ought to  be able  to confirm  his                                                               
interpretation.                                                                                                                 
                                                                                                                                
3:27:33 PM                                                                                                                    
                                                                                                                                
JASON B. MOULTON, Loss Prevention  Director, Safeway, Inc., after                                                               
relaying that his company also  does business in Alaska under the                                                               
name of Carrs, offered some  personal background information.  He                                                               
offered his  understanding that the  objective of current  law is                                                               
to  limit access  by underage  persons to  tobacco products.   He                                                               
mentioned that  he also  sits on  Washington's Youth  Access Task                                                               
Force,  and  that  what  that  Task Force  has  learned  is  that                                                               
underage persons  are accessing  tobacco products via  adults who                                                               
purchase the  products and then  turn around and  distribute them                                                               
to the underage persons.   He recounted that Washington's penalty                                                               
for  a first  offense  of selling  tobacco  products to  underage                                                               
persons is  merely a fine  of $100,  and also mentioned  that the                                                               
"Synar" compliance  rates in Washington are  significantly higher                                                               
than those in Alaska.                                                                                                           
                                                                                                                                
CHAIR RAMRAS interjected to say he  is pleased with the fact that                                                               
Alaska has the  strictest penalties in the  nation, and suggested                                                               
to Mr.  Moulton that  he refrain  from offering  a state-by-state                                                               
comparison.                                                                                                                     
                                                                                                                                
MR. MOULTON opined  that greater penalties don't  seem to enhance                                                               
compliance  rates.   Referring to  his company,  he relayed  that                                                               
employees who  commit violations are automatically  suspended for                                                               
five days,  and said  his company  feels it  has a  good training                                                               
program in  place to ensure  compliance, and feels  that Alaska's                                                               
20-day  suspension  period  without  the  ability  to  appeal  or                                                               
mitigate  is  unfair and  harsh  and  can ultimately  decrease  a                                                               
store's revenues by as much as $10,000.                                                                                         
                                                                                                                                
3:33:07 PM                                                                                                                    
                                                                                                                                
KIP  KNUDSON, External  Affairs  Manager,  Tesoro Alaska  Company                                                               
("Tesoro"),  mentioned that  Tesoro has  had 18  violations since                                                               
2000 and  has terminated every  one of the  employees responsible                                                               
for  the  violations,  and  that  it  has  worked  very  hard  to                                                               
inculcate a  culture of no  tobacco or alcohol sales  to underage                                                               
persons.   He  pointed  out  that no  one  ever  hears about  the                                                               
instances wherein  businesses refuse to sell  tobacco products to                                                               
underage persons.   He  characterized the  change proposed  by HB
187 as a technical change that  will result in state law adhering                                                               
to the  court decision and  that will protect  the constitutional                                                               
rights of businesses.   He offered that the bill  will not result                                                               
in many changes to the way Tesoro operates.                                                                                     
                                                                                                                                
3:36:26 PM                                                                                                                    
                                                                                                                                
DIANE CASTO,  Section Manager, Prevention and  Early Intervention                                                               
Section,  Division  of  Behavioral Health  (DBH),  Department  of                                                               
Health and Social  Services (DHSS), first mentioned  that the DBH                                                               
is the agency responsible for  the enforcement of illegal tobacco                                                               
sales to underage  persons and is required by  the federal "Synar                                                               
legislation"  to maintain  a  compliance rate  of  20 percent  or                                                               
less.   Both the  DBH and  the DHSS oppose  HB 187  [as currently                                                               
written] but do support the  intention to address the current due                                                               
process problem  tobacco retailers are experiencing,  and to that                                                               
end  the  DHSS  has  been  working  closely  with  the  DOL,  the                                                               
Department  of   Commerce,  Community,  &   Economic  Development                                                               
(DCCED),  and  the Department  of  Revenue  (DOR), to  amend  the                                                               
current statute to address that issue.                                                                                          
                                                                                                                                
MS. CASTO said that as an  interim measure, [the DHSS] is looking                                                               
to  change its  current internal  policy while  still maintaining                                                               
the continuity of its current  enforcement program.  For example,                                                               
via the  DHSS's existing authority,  the DBH could cite  both the                                                               
clerk of sale and the business  at the same time, and though this                                                               
won't completely solve the problem,  it should provide additional                                                               
opportunity for due process as  the DHSS continues its efforts to                                                               
come up with a final solution.                                                                                                  
                                                                                                                                
MS. CASTO explained that the department is concerned with the                                                                   
bill's potential weakening of the current penalty structure.                                                                    
She elaborated:                                                                                                                 
                                                                                                                                
     We  believe  the  current  structure  of  citation  and                                                                    
     penalties works.   We are quite proud of  the fact that                                                                    
     Alaska does  have the  strongest laws,  and I  can tell                                                                    
     you,  when I  attend ...  national meetings  with other                                                                    
     states  working on  tobacco enforcement,  many of  them                                                                    
     are  envious of  our laws,  so they  know ...  that our                                                                    
     laws are strong  and that they are working.   State law                                                                    
     was  amended in  2001-2002  to  ensure that  violations                                                                    
     resulted  in  a   consistent  temporary  suspension  of                                                                    
     tobacco sales by retailers who  sell tobacco to minors.                                                                    
     In 2002,  the state's illegal  sale rate to  minors was                                                                    
     30  percent,  [but] following  the  change  in law,  in                                                                    
     2003,  the  rate dropped  to  10  percent -  clearly  a                                                                    
     direct relationship to the change  in our citations and                                                                    
     our penalties.                                                                                                             
                                                                                                                                
     In  1995,   the  Youth  Risk  Behavior   Survey  [YRBS]                                                                    
     reported   that  26.3   percent   of  students   bought                                                                    
     cigarettes at  a ... convenience store,  [but] in 2003,                                                                    
     the  YRBS  reported  that   12.5  percent  of  students                                                                    
     purchased  cigarettes  at  a  store  -  a  considerable                                                                    
     decrease that  we believe  is associated  with Alaska's                                                                    
     strong  laws.    Youth  smoking  in  Alaska  has  shown                                                                    
     consistent decreases  over the  last 10 years.   Again,                                                                    
     the  YRBS  ... shows  a  reduction  in current  smoking                                                                    
     among  youth,  from  36.8  percent  in  1995,  to  19.2                                                                    
     percent in 2003 -  significantly lower than the overall                                                                    
     [national] ... rate of 28.5  percent.  We believe these                                                                    
     statistics  and  the  significant reductions  in  youth                                                                    
     access to  and use  of tobacco  products is  related to                                                                    
     our strong enforcement laws.                                                                                               
                                                                                                                                
MS. CASTO continued:                                                                                                            
                                                                                                                                
     In  a report  from the  U.S. General  Accounting Office                                                                    
     related to  the Synar amendment implementation,  ... it                                                                    
     states  that:     "The   components  of   an  effective                                                                    
     enforcement  strategy include  an enforceable  law with                                                                    
     penalties  sufficiently   severe  to   deter  potential                                                                    
     violators, according  to the  research.   The [National                                                                    
     Governors   Association  (NGA)]   concluded  from   its                                                                    
     interviews  with representatives  of state  agencies on                                                                    
     best practices in enforcing Synar  that the single most                                                                    
     effective factor  in reducing tobacco access  to minors                                                                    
     is  the establishment  of  a  statewide inspection  and                                                                    
     enforcement  program that  holds  merchants and  clerks                                                                    
     accountable for  their actions.   Some  state officials                                                                    
     told   us  they   believe  that   aggressive  penalties                                                                    
     assessed against the retailer  can be very effective in                                                                    
     changing merchant behavior."                                                                                               
                                                                                                                                
MS. CASTO,  in response  to a question,  clarified that  the DHSS                                                               
does not support HB 187 as it is currently written.                                                                             
                                                                                                                                
CHAIR RAMRAS  said it is  quite clear  that the bill  still needs                                                               
some work.                                                                                                                      
                                                                                                                                
MS. CASTO, in conclusion, said  that the DHSS believes the Alaska                                                               
youth tobacco  prevention programs in Alaska  are working because                                                               
the  state   has  a  comprehensive,   integrated,  multi-strategy                                                               
approach,  part of  which is  strong  enforcement.   The DHSS  is                                                               
committed to  strong enforcement and penalties  for underage sale                                                               
of  tobacco products,  and is  proud of  Alaska's current  strong                                                               
laws aimed at reducing youth access.                                                                                            
                                                                                                                                
CHAIR RAMRAS said  the committee will be  taking the department's                                                               
remarks under consideration before moving HB 187 from committee.                                                                
                                                                                                                                
3:42:53 PM                                                                                                                    
                                                                                                                                
CYNTHIA DRINKWATER,  Assistant Attorney  General, Commercial/Fair                                                               
Business Section,  Civil Division (Anchorage), Department  of Law                                                               
(DOL), relayed that she has  been involved in tobacco enforcement                                                               
cases for about  six years, that she represents the  DCCED in the                                                               
administrative  proceedings involving  tobacco endorsements,  and                                                               
that  she has  assisted  the DHSS  investigators  in cases  where                                                               
clerks who have  been cited for a violation of  AS 11.76.100 have                                                               
requested a trial and are represented  by counsel.  She said that                                                               
today  she  is  speaking  at  the request  of  the  DHSS  and  in                                                               
opposition to  HB 187 as  currently drafted.  She  concurred that                                                               
in  the  Holiday case,  the  court  held  that AS  43.70.075  was                                                             
unconstitutional because Holiday was not  given an opportunity to                                                               
address the  central issues in  the case, those being  related to                                                               
the  conduct of  the employees  and whether  those employees  had                                                               
negligently sold tobacco to an underage person.                                                                                 
                                                                                                                                
MS.  DRINKWATER also  concurred  that the  DHSS  is proposing  to                                                               
institute  some internal  changes, changes  specifically relevant                                                               
to the applicability of AS 11.16.130(a)(1).  She elaborated:                                                                    
                                                                                                                                
     Typically, the  department in the  past has  cited just                                                                    
     the clerks,  [but] clearly ...  under Alaska  law there                                                                    
     is  a provision  allowing  for  vicarious liability  of                                                                    
     business  organizations,   and  the  change   that  the                                                                    
     department could make  is to start citing  not only the                                                                    
     employee but  also the  business organization  as well.                                                                    
     The effect  of that  would mean  that ...  both parties                                                                    
     would  get  the  same  court date,  they  could  appear                                                                    
     together,  the ...  endorsement holder  would have  the                                                                    
     opportunity  to raise  factual  defenses  of the  types                                                                    
     that  Judge Morse  identified in  his opinion,  such as                                                                    
     raising  the issue  of whether  the employee  was truly                                                                    
     negligent,   or  whether,   for  instance,   the  buyer                                                                    
     actually appeared to  be over age 35  and therefore the                                                                    
     employee  wasn't  negligent  in  failing  to  card,  or                                                                    
     whether the product at issue was  a candy bar and not a                                                                    
     package of  cigarettes, and other  factual issues.   So                                                                    
     there  is a  way, actually,  that the  department could                                                                    
     enforce  the   statutes  without  any  changes   to  AS                                                                    
     43.70.075, but,  as has been mentioned,  the department                                                                    
     is willing to  work with the sponsor  and the committee                                                                    
     to  come  up with  a  legislative  solution that  would                                                                    
     address the due  process concerns and at  the same time                                                                    
     keep intact a penalty  provision that is meaningful and                                                                    
     effective.                                                                                                                 
                                                                                                                                
MS.  DRINKWATER, in  response to  an  earlier question  regarding                                                               
whether  there were  any similar  cases  pending, mentioned  that                                                               
there is currently a case  before the Alaska Supreme Court called                                                               
Godfrey v. State.  In that  case, among other issues, there was a                                                             
due process  challenge to AS  43.70.075, and the  Alaska Superior                                                               
Court did  not find a  defect in  the statute though  the hearing                                                               
officer in the underlying case  allowed the endorsement holder to                                                               
raise  defenses  additional  to  those  currently  listed  in  AS                                                               
43.70.075(m)(1); Judge  Collins looked at  the issue  and applied                                                               
the  three-part due  process  test that  the  U.S. Supreme  court                                                               
enunciated  in Mathews  v.  Eldridge, 424  U.S.  319 (1975),  and                                                             
found that  there was no violation  of due process.   In Godfrey,                                                             
Ms.   Drinkwater  relayed,   Judge  Collins   concluded:     "The                                                               
imposition  of strict  liability for  limited monetary  sanctions                                                               
and  suspended   tobacco  licenses   for  negligent   conduct  of                                                               
employees  selling   tobacco  to  minors  does   not  offend  due                                                               
process."                                                                                                                       
                                                                                                                                
MS. DRINKWATER concluded  by reiterating that there is  a way for                                                               
the  department to  continue its  enforcement efforts  while also                                                               
providing  endorsement holders  with  due process,  and that  the                                                               
department is also  willing to continue working  on a legislative                                                               
solution.   In response to a  request, she said she  would supply                                                               
the written decision in the Godfrey case to the committee.                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG, referring  to  AS 11.16.130,  pondered                                                               
whether  the  bill  - specifically  proposed  AS  43.70.075(d)  -                                                               
should be altered to reflect that  it must be shown that not only                                                               
was the conduct  within the scope of employment but  also that it                                                               
was on behalf of the organization.                                                                                              
                                                                                                                                
MS. DRINKWATER opined  that such is not necessary  because of the                                                               
way  statute  has  been   interpreted,  particularly  in  Laidlaw                                                             
Transit, Inc.  v. Crouse, 53 P.3d  1093 (Alaska 2002); it  is not                                                             
sufficient for  an employer to  simply have a  policy prohibiting                                                               
illegal  conduct  by employees,  and  this  issue was  raised  in                                                               
Godfrey.     She  relayed  that  she   would,  however,  consider                                                             
Representative Gruenberg's suggestion further.                                                                                  
                                                                                                                                
3:51:28 PM                                                                                                                    
                                                                                                                                
EMILY  NENON,  Director,  Alaska Government  Relations,  American                                                               
Cancer Society  (ACS), in  response to  a question,  relayed that                                                               
Michelle  Toohey, from  the American  Lung Association  of Alaska                                                               
(ALAA), left written  comments for the committee.   Ms. Nenon, on                                                               
behalf of the ACS, said that  the ACS opposes HB 187 because "you                                                               
can drive a  Mack Truck through it."  She  added that enforcement                                                               
of illegal tobacco  sales to underage persons is  a key component                                                               
to a  comprehensive tobacco control  program.  The  vast majority                                                               
of tobacco users started using  tobacco as children; one-third of                                                               
all  cancer  deaths  are  tobacco  related.    It  is  critically                                                               
important to  the ACS's mission  to keep "this  deadly, addictive                                                               
product" out of the hands of  children.  Because of the nature of                                                               
tobacco products,  the ACS  recognizes the  unique responsibility                                                               
placed  on the  vendors who  sell  tobacco products.   Alaska  is                                                               
fortunate to have a successful  vendor sales enforcement program,                                                               
but that hasn't always been the case, she remarked.                                                                             
                                                                                                                                
MS.  NENON   mentioned  that  the   graph  in   members'  packets                                                               
illustrates  the  significant drop  in  illegal  vendor sales  of                                                               
tobacco products to  underage persons right after  2002; prior to                                                               
2002, Alaska's  laws governing tobacco  enforcement did  not have                                                               
clear and  predictable consequences  for vendors  selling tobacco                                                               
products   to  underage   persons.     Because   of  this   lack,                                                               
approximately one-third  of vendors  in Alaska  were found  to be                                                               
selling  tobacco products  to underage  persons;  after the  laws                                                               
changed in  2002, compliance  rates increased  dramatically, with                                                               
an average  of 90 percent of  vendors "getting it right"  and not                                                               
selling  tobacco to  underage persons.   Ms.  Nenon said  the ACS                                                               
wants to applaud  the vendors that make efforts  to educate their                                                               
employees  on   this  issue;  those   efforts,  however,   as  is                                                               
illustrated in  the aforementioned  graph, are  dramatically more                                                               
effective  when  combined  with   clear  and  predictable  vendor                                                               
sanctions.                                                                                                                      
                                                                                                                                
MS.  NENON mentioned  that most  other states  do not  handle the                                                               
penalties for illegal sales entirely  at the state level; instead                                                               
the  penalties  are  handled at  the  county/municipal  level  of                                                               
government, and  this results in the  penalties varying depending                                                               
on  where  in  the  state  the  violations  occurs.    Consistent                                                               
statewide   penalties  have   made  a   difference  in   Alaska's                                                               
successful Synar  compliance rates.   In response to  a question,                                                               
she said  that she has  no problem with providing  merchants with                                                               
due  process; the  problem with  the  bill, however,  is that  it                                                               
takes  the issue  of due  process  and uses  it as  an excuse  to                                                               
significantly  weaken   the  state's  current   [suspension  and]                                                               
penalty  scheme,  thus making  it  easier  for illegal  sales  of                                                               
tobacco products  to occur.  She  mentioned that the ACS  has had                                                               
conversations with some of the  vendors regarding how the current                                                               
[enforcement] program works.                                                                                                    
                                                                                                                                
CHAIR  RAMRAS mentioned  that  the bill  will  be revised  before                                                               
moving from committee.                                                                                                          
                                                                                                                                
3:57:37 PM                                                                                                                    
                                                                                                                                
SUZANNE   MEUNIER,   Director   of  Advocacy,   American   Stroke                                                               
Association (ASA), American Heart  Association (AHA), said she is                                                               
speaking in opposition  to HB 187.  She opined  that although the                                                               
AHA agrees  that everyone is entitled  to due process, HB  187 is                                                               
not  needed  and  goes  far   beyond  what  the  court  requires,                                                               
particularly  given that  the DHSS  and  the DOL  are working  on                                                               
instituting  policy  modifications  to address  the  due  process                                                               
issue.    She  surmised  that  all would  agree  that  clear  and                                                               
predictable consequences ought to be  applied to all vendors that                                                               
violate the law by selling  tobacco products to underage persons.                                                               
Clear standards  allow vendors to  know exactly what  is expected                                                               
of them,  and firm penalties  motivate them to ensure  that their                                                               
employees  comply with  state law.   She  also surmised  that all                                                               
would agree  that keeping  tobacco products out  of the  hands of                                                               
children  is a  crucial step  towards curbing  death and  disease                                                               
caused by  tobacco.   The AHA  believes that  the current  law is                                                               
working  and is  producing benefits  - since  its implementation,                                                               
illegal  sales  of  tobacco products  to  underage  persons  have                                                               
dropped dramatically - and thus should not be changed.                                                                          
                                                                                                                                
MS. MEUNIER pointed out that  HB 187 provides for the possibility                                                               
of no  suspension of an endorsement  even if the vendor  or clerk                                                               
is  found to  be in  violation, and  would establish  a negligent                                                               
standard  in place  of  a  strict liability  standard.   The  AHA                                                               
believes  that these  changes  are an  unacceptable  step in  the                                                               
wrong  direction, she  said; the  current  combination of  vendor                                                               
education  programs  and  predictable  temporary  suspensions  of                                                               
endorsements are  achieving the goal of  minimizing illegal sales                                                               
to  children.   As  a matter  of public  health,  she opined,  an                                                               
automatic  suspension of  a tobacco  endorsement must  be applied                                                               
for every conviction.  The AHA  urges the committee to decline to                                                               
pass HB 187  and instead allow the DHSS to  remedy the identified                                                               
due process issue.                                                                                                              
                                                                                                                                
4:00:50 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS  suggested to  members that they  be mindful  of the                                                               
fact  that small  business owners  don't intend  to sell  tobacco                                                               
products to  underage minors  but can  sometimes hire  those that                                                               
are   irresponsible  or   negligent   or   don't  execute   their                                                               
responsibilities,  and  of the  fact  that  due process  must  be                                                               
provided to vendors  and they shouldn't be punished  just for the                                                               
sake of being punitive.  He  concluded by saying that he is proud                                                               
that the state has the toughest  tobacco laws in the country, and                                                               
suggested that the sponsor consider  the issues raised at today's                                                               
meeting when  developing a committee substitute  or amendments to                                                               
the bill.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  GRUENBERG  pointed  out that  AS  11.76.100(a)(1)                                                               
uses  the   term,  "negligently",   and  that  in   the  statutes                                                               
pertaining to  alcohol, the term, "criminal  negligence" is used.                                                               
He  asked  all  parties  to  consider  whether  the  bill  should                                                               
reference  criminal  negligence;  whether the  bill  should  also                                                               
contain the words,  "and in the benefit of the  person" in places                                                               
where  it speaks  of  the  employee acting  within  the scope  of                                                               
agency or  employment; and whether  the bill ought to  be altered                                                               
such that if  there is the potential for  initiating a suspension                                                               
that  the  endorsement holder  be  given  notice of  the  initial                                                               
hearing  pertaining to  the  employee  as well.    He asked  that                                                               
members  be provided  with a  copy of  the regulations  currently                                                               
referred to on page 2, line 28, of HB 187.                                                                                      
                                                                                                                                
CHAIR RAMRAS relayed that HB 187 would be set aside.                                                                            
                                                                                                                                
HB 133 - ELECTRONIC MONITORING OF GANG PROBATIONER                                                                            
                                                                                                                                
4:05:43 PM                                                                                                                    
                                                                                                                                
CHAIR RAMRAS announced that the  final order of business would be                                                               
HOUSE  BILL NO.  133, "An  Act relating  to requiring  electronic                                                               
monitoring  as a  special condition  of  probation for  offenders                                                               
whose offense  was related to  a criminal street gang."   [Before                                                               
the committee was  the proposed committee substitute  (CS) for HB
133,  Version 25-LS0465\E,  Luckhaupt,  2/20/07,  which had  been                                                               
adopted  as  the  work  draft on  2/21/07;  included  in  members                                                               
packets  was another  proposed committee  substitute (CS)  for HB
133, Version 25-LS0465\L, Luckhaupt, 3/14/07.]                                                                                  
                                                                                                                                
4:06:01 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM  moved to  adopt the  proposed committee                                                               
substitute  (CS)  for  HB 133,  Version  25-LS0465\L,  Luckhaupt,                                                               
3/14/07, as the work draft.   There being no objection, Version L                                                               
was before the committee.                                                                                                       
                                                                                                                                
4:06:47 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  BOB  BUCH,  Alaska  State  Legislature,  sponsor,                                                               
relayed that Version  L has deleted reference to  AS 12.55.137 in                                                               
order to narrow the focus of the  bill so that it only applies to                                                               
violent  offenders   who  commit   felony  crimes;   has  deleted                                                               
reference  to  "continuous  monitoring"   so  that  the  type  of                                                               
electronic  monitoring  used  will   be  that  which  immediately                                                               
informs  the probation  officer  if the  probationer violates  an                                                               
inclusion or exclusion zone; and  now contains a five-year sunset                                                               
provision so  that the  legislature will  have an  opportunity to                                                               
assess the effectiveness  of the bill.  He mentioned  that all of                                                               
these changes will result in decreased fiscal notes.                                                                            
                                                                                                                                
REPRESENTATIVE BUCH said  that although he'd tried  to expand the                                                               
bill so that  it would apply to youth who  commit heinous violent                                                               
crimes but who aren't members  or associate members of a criminal                                                               
street  gang, he'd  been  advised  by the  drafter  that such  an                                                               
expansion  would be  unconstitutional  and by  the Department  of                                                               
Corrections (DOC)  and the Department  of Law (DOL) that  such an                                                               
expansion is unnecessary because,  if caught and convicted, there                                                               
is a  good chance that  such persons either wouldn't  be eligible                                                               
for  probation before  the bill  sunsets or  would be  subject to                                                               
electronic monitoring anyway.                                                                                                   
                                                                                                                                
REPRESENTATIVE BUCH  expressed his  hope that the  committee will                                                               
support the bill  and thus place this  proposed additional burden                                                               
on those criminals  that have shown a disregard for  the lives of                                                               
others.                                                                                                                         
                                                                                                                                
REPRESENTATIVE  DAHLSTROM  expressed  appreciation for  the  work                                                               
done  on the  bill, and  indicated  that her  concerns have  been                                                               
satisfied by Version L.                                                                                                         
                                                                                                                                
CHAIR  RAMRAS  characterized Version  L  as  a better  bill,  and                                                               
expressed appreciation for the work done it.                                                                                    
                                                                                                                                
4:14:12 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE DAHLSTROM moved  to report the proposed  CS for HB
133, Version  25-LS0465\L, Luckhaupt,  3/14/07, out  of committee                                                               
with  individual  recommendations  and  the  accompanying  fiscal                                                               
notes.   There  being no  objection, CSHB  133(JUD) was  reported                                                               
from the House Judiciary Standing Committee.                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Judiciary Standing Committee meeting was adjourned at 4:14 p.m.                                                                 

Document Name Date/Time Subjects