Legislature(2007 - 2008)
03/26/2007 02:44 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB175 | |
| HB187 | |
| HB133 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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.
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