Legislature(1997 - 1998)
04/03/1997 08:06 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HOUSE STATE AFFAIRS STANDING COMMITTEE April 3, 1997 8:06 a.m. MEMBERS PRESENT Representative Jeannette James, Chair Representative Ethan Berkowitz Representative Fred Dyson Representative Mark Hodgins Representative Ivan Ivan Representative Al Vezey MEMBERS ABSENT Representative Kim Elton COMMITTEE CALENDAR HOUSE BILL NO. 181 "An Act relating to separate segregated funds for certain political contributions from corporations and labor organizations." - MOVED CSHB 181(STA) OUT OF COMMITTEE *HOUSE BILL NO. 79 "An Act relating to the offense of possession of tobacco by a person under 19 years of age." - HEARD AND HELD HOUSE BILL NO. 200 "An Act relating to subpoenas of the Administrative Regulation Review Committee; and providing for an effective date." - SCHEDULED BUT NOT HEARD (* First public hearing) PREVIOUS ACTION BILL: HB 181 SHORT TITLE: SEPARATE SEGREGATED FUNDS:POLIT. CONTRIB SPONSOR(S): REPRESENTATIVE(S) VEZEY JRN-DATE JRN-PG ACTION 03/07/97 583 (H) READ THE FIRST TIME - REFERRAL(S) 03/07/97 584 (H) STATE AFFAIRS, JUDICIARY 03/25/97 (H) STA AT 8:00 AM CAPITOL 102 03/25/97 (H) MINUTE(STA) 04/03/97 (H) STA AT 8:00 AM CAPITOL 102 BILL: HB 79 SHORT TITLE: MINOR IN POSSESSION OF TOBACCO SPONSOR(S): REPRESENTATIVE(S) BUNDE, James JRN-DATE JRN-PG ACTION 01/16/97 90 (H) READ THE FIRST TIME - REFERRAL(S) 01/16/97 90 (H) STA, JUDICIARY, FINANCE 04/03/97 (H) STA AT 8:00 AM CAPITOL 102 WITNESS REGISTER REPRESENTATIVE CON BUNDE Alaska State Legislature State Capitol, Room 104 Juneau, Alaska 99801-1182 Telephone: (907) 465-4843 POSITION STATEMENT: Sponsor of HB 79. PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde State Capitol, Room 104 Juneau, Alaska 99801-1182 Telephone: (907) 465-4843 POSITION STATEMENT: Provided testimony on HB 79. LOREN JONES, Director Division of Alcoholism and Drug Abuse Department of Health and Social Services P.O. Box 110607 Juneau, Alaska 99811-0607 Telephone: (907) 465-2071 POSITION STATEMENT: Provided testimony on HB 79. ACTION NARRATIVE TAPE 97-36, SIDE A Number 0001 The House State Affairs Standing Committee was called to order by Chair Jeannette James at 8:06 a.m. Members present at the call to order were Representatives James, Dyson, Hodgins, Ivan and Vezey. Members absent were Berkowitz and Elton. Representative Ethan Berkowitz arrived at 8:12 a.m. HB 181 - SEPARATE SEGREGATED FUNDS:POLIT. CONTRIB The first order of business to come before the House State Affairs Standing Committee was HB 181, "An Act relating to separate segregated funds for certain political contributions from corporations and labor organizations." CHAIR JEANNETTE JAMES called on Representative Al Vezey, sponsor of HB 181, to present the bill. Number 0063 REPRESENTATIVE AL VEZEY apologized for the confusion last week because the bill that was presented did not do what he thought it would do. The intent was to provide assurance that if there was going to be a payroll deduction or a mandatory dues plan that it was voluntary. In addition, the entity that conducted the deduction would have to keep the funds in a separate account. And, if the entity became politically active, it would trigger the definition of a group and would fall under the type of reporting and restrictions passed into law last year on corporations and labor unions and how the money could be used. Number 0180 REPRESENTATIVE VEZEY moved that the committee substitute (0- LS0628/B, Cramer, 4/2/97) be adopted. There was no objection, the committee substitute was so adopted. Number 0231 REPRESENTATIVE MARK HODGINS moved that HB 181, as amended, move from the committee with individual recommendations and the attached fiscal note(s). There was no objection, CSHB 181(STA) was so moved from the House State Affairs Standing Committee. HB 79 - MINOR IN POSSESSION OF TOBACCO The next order of business to come before the House State Affairs Standing Committee was HB 79, "An Act relating to the offense of possession of tobacco by a person under 19 years of age." CHAIR JAMES called on Representative Con Bunde, sponsor of HB 79, to present the bill. Number 0421 REPRESENTATIVE CON BUNDE, Alaska State Legislature, explained HB 79 was looked at last year. It was one of four parts necessary to address nicotine addiction. Parents did their part, schools continued to educate people and HB 79 addressed the issue of enforcement. In the Anchorage area 60 percent of the kids under 19 were able to purchase cigarettes. Representative Bunde explained he was motivated to address the bill because of a mother's story regarding the purchase of chewing tobacco by her 16 year old son at a quick stop. The mother called the police to report the vendor to penalize him for selling to a minor. The police officer replied there was nothing that could be done about it because an officer had not witnessed the crime. The mother in response offered her 15 year old son to make a similar purchase of which she would videotape the transaction for evidence. The police officer responded that the kid would be liable to a charge of possession by a minor and she would be liable to a charge of contributing to the delinquency of a minor. There was no ability within Alaska's laws to allow for a compliance check or a controlled buy using under- aged purchasers of tobacco products. The police said that they would not attempt to do any controlled buys because they would be subjected to contributing to a delinquency charge themselves. There were some additions made to the bill. He called on Patricia Swenson, his legislative assistant, to address the additions. Number 0625 PATRICIA SWENSON, Legislative Assistant to Representative Con Bunde, announced there was a committee substitute (0-LS0348/F, Chenoweth, 3/7/97) and explained the sections of the bill. MS. SWENSON explained Section 1 restricted vending machines to rooms controlled by persons over the age of 19 and restricted persons under the age of 19 from the rooms. She referred the committee members to page 1, line 11, (A) "as far as practicable from the primary entrance; and", and suggested including the following specific language: "at least 10 feet from the entrance and at least 10 feet from the exit". MS. SWENSON explained the suggested language would restrict access to a vending machine even further and would allow for better control. A study commissioned by the vending machine industry in 1992 indicated that 23 percent of the youth that smoked used vending machines "often" or "occasionally". A more recent study found that 37.8 percent used vending machines "often" and younger children relied on them "almost totally" for their cigarettes. In addition, 13 year olds had reported using vending machines 11 times more frequently than 17 year olds. MS. SWENSON explained Sec. 2 made the use of false identification for the purchase of cigarettes a violation punishable by a fine. The violation equalled that of possession of tobacco. MS. SWENSON explained Sec. 3 exempted minors from the violation of the possession of tobacco when they were working with the police or others in authority on compliance checks. It also made possession of a product containing tobacco a violation punishable by a fine of not less than $300 in (b). Jack Chenoweth, drafter of HB 79, explained there was a decision pending in the Supreme Court that said anything over $300 had to have a jury trial. If the court agreed with the decision then she suggested lowering the fine to below $300 so that the cost of a jury trial would not be associated with the bill. MS. SWENSON explained Sec. 4 added the following definitions: person, proof of age, tobacco product, and vending machine. MS. SWENSON explained Sec. 5 raised the endorsement license fee from $25 to $100 for more incentive for those that sold tobacco to obey the law. MS. SWENSON explained Sec. 6 graduated the time a license was suspended for violations. A time of 45 days and 90 days was currently in statute. If a person had a violation within the past 24 months and the person had been convicted two or more times, the license would be suspended or revoked for a period of one year. This was done to add another range of violations for more enforcement and more incentive for people not to sell tobacco. It would penalize the owner and it was more preferable than citing the sales clerk. The cases dismissed by judges felt that the owners should be penalized and not the clerks because the fine was an undue burden on the clerks making minimum wage. MS. SWENSON explained Sec. 7 required a person with a business license to keep tobacco products in a secure place. It also defined what was a secure place - behind a counter where there was intervention between the retailer and the purchaser. It would give the retailer a chance to talk to the person to decide if he or she was old enough to actually buy a tobacco product. At the same time, it would give the retailer a chance to ask for proof of age if there were any questions. She explained part of the reason for putting the tobacco products in a secure place was because tobacco companies often offered retailers slotting fees - a fee paid for favorable placement of their product. This also included placement of shelf displays cutting down on theft and smoking. The section also required a warning sign to be posted conspicuously. The tobacco companies supported this provision because research had shown that warning sings did not reduce illegal sales to minors. They often furthered rebellion in the youth. She stated, "If this is something that they can't have, it's what they're going to try to get." The section also allowed for a signed statement indicating that the customer was 19 years old or older if the proof of age was questioned. There was a drawback, however, in Sec. 8. MS. SWENSON explained the retailer in Sec. 8 had to notify the clerks of the law, train them in asking for proof of age, and obtaining a signed statement. It also added the prevention of the prosecution of a retailer or a clerk if a statement of age was signed or a valid drivers license or id was presented at the time of the purchase. She did not know, however, if the committee would decide to keep that provision. She was not sure if a retailer should be able to get away with selling to a minor even if they had shown identification. MS. SWENSON explained Sec. 9 included the addition of a violation for the use of false identification. The minor would be charged, prosecuted, and sentenced in an adult court. Number 1142 CHAIR JAMES stated 10 feet from an exit and entrance was a good idea. Number 1153 MS. SWENSON replied many states used 25 feet. CHAIR JAMES replied we had small places. There were place that were not 25 feet long. CHAIR JAMES suggested reducing the fine on page 2, line 26, from $300 to $299. Number 1214 CHAIR JAMES explained the other issue was letting a store get away with selling to someone who either gave false identification or signed a statement. The only way to enforce that would be through signing a record like retailers did for a sales tax exemption permit, for example. It was burdensome for the retailers but they would have to get a signature anyway if someone did not have identification. She would like to keep the provision in the bill, however. Number 1282 MS. SWENSON replied a person only had to sign a statement when his or her identification was questioned by the retailer. Number 1297 REPRESENTATIVE BUNDE commented that he had noticed signs posted by retailers that said "No ID No Cigarettes". "We're moving in that direction." Number 1312 CHAIR JAMES replied she knew that retailers were cracking down; the issue was being taken seriously. Number 1346 REPRESENTATIVE HODGINS asked Ms. Swenson if the business license was separate than the business license endorsement mentioned in Sec. 5 for handling tobacco? Number 1354 MS. SWENSON replied, "No." The fee was paid all at once. She was not sure, however. REPRESENTATIVE HODGINS replied in essence we were raising the business license fee to $100. MS. SWENSON stated it needed to be clarified. She did not know. Number 1371 CHAIR JAMES stated it was an endorsement to the business license. REPRESENTATIVE HODGINS announced he would object if it was not separate. CHAIR JAMES replied it was a separate charge. REPRESENTATIVE HODGINS further stated that the new federal regulations were stating 27 years of age. MS. SWENSON replied, "Exactly." We need to change the age to 27 in the bill in several places for the purposes of showing identification; but to 19 years of age for the purposes of going into a break room where a vending machine happened to be. REPRESENTATIVE HODGINS asked if Ms. Swenson would be bringing forward the revisions? MS. SWENSON replied she would bring forward the revisions if that was what the committee decided to do. Number 1407 REPRESENTATIVE HODGINS announced he did not have a problem with Section 1 (A) as long as (B) was in the bill. "You can't have a vending machine unless it's being supervised," he declared. In addition, he had been a food whole seller for many years so he understood the statement made by the chair that there were places that did not have 25 feet. Number 1435 MS. SWENSON replied there was danger in provision (B) in that people were often busy and, therefore, not able to directly supervise. If a vending machine was too close to an exit or entrance, people of under age could come in and quickly buy cigarettes then leave. The bill also read "and" between (A) and (B), therefore, both would have to be present at the same time. Thus, a vending machine would have to be at least 10 feet from the entrance and exit in a place that was directly supervised. It would not be an either-or situation. Number 1474 REPRESENTATIVE HODGINS stated quite a few businesses understood the potential loss of tobacco and were designing special areas for a person to request cigarettes. Therefore, as the price of cigarettes went up, the merchant would be taking more of a concerned attitude towards cigarettes being shop lifted, for example. Shrinkage in tobacco was a tremendous problem because there was so little profit in it. "I think that we'll find that the compliance that we're looking at for Sec. 7 will easily be adhered to," he declared. Number 1518 CHAIR JAMES stated the provision to check licenses for those under 27 years of age was a huge burden on the retailer. "I don't agree with that." However, if the state did not make its law as strong as the federal law, it would take away money from our highways, for example. She would prefer to leave the age at 19 or 21. Number 1572 REPRESENTATIVE FRED DYSON asked why the language "correctional facility" was in the bill on page 2, line 15? Number 1593 REPRESENTATIVE BUNDE replied it was existing law. People in correctional facilities used cigarettes as a pacifier for behavior modification. There were some correctional facilities that were going non-smoking; for example, the state of Texas. It seemed paradoxical, however. Number 1620 REPRESENTATIVE DYSON suggested deleting the language. Number 1628 CHAIR JAMES replied the responsibility of corrections was to keep prisoners calm. Therefore, she did not want to take a tool away that could be used to maintain calm in the prisons. She would prefer to yield to corrections on the issue before deleting the language. She hated smoking more than anybody because she had lived with a whole family whose members were addicted to nicotine, therefore, she knew what smoking did to a person's nerves. Number 1700 REPRESENTATIVE DYSON stated that the impact would be minimal because there were few 19 year olds in the prison system. Number 1719 REPRESENTATIVE BUNDE stated that the "no frills" prison bill included a tobacco prohibition as well. Number 1731 CHAIR JAMES stated that the House Judiciary Standing Committee had discussed the issue, but she did not remember the results. Number 1735 REPRESENTATIVE ETHAN BERKOWITZ stated it was banned because most of the prisons in Alaska were moving to a smoke-free environment anyway. Number 1744 CHAIR JAMES replied she would like to have testimony from corrections first before making any decision on the issue. Number 1757 REPRESENTATIVE HODGINS asked Representative Bunde to consider setting the bill up so that tobacco products could be sold only in designated areas like liquor stores. There were several food chains going in that direction. It would solve a lot of problems. "Most retailers when they look at the profit that they make on tobacco would just as soon not be in the tobacco business and that's why you have the funding for the slotting that the tobacco wholesalers do." The public would be better served by such a move. Number 1797 REPRESENTATIVE BUNDE replied when he first heard about the low- level profit of tobacco he was surprised. But after research, he was amazed at the low profit margin. "There's no other product, I think, that has such a low level of profit margin." He knew of a case where the merchants sold cigarettes for what they paid for them. The only profit margin was in the cash discount of paying their bills early. The only reason that they sold cigarettes was because they were a traffic generator for addicts. "While they're in feeding their addition they might buy a quart a milk," he declared. CHAIR JAMES stated that cigarettes were a draw. People stop and buy a package of cigarettes along with other things. Number 1888 REPRESENTATIVE BERKOWITZ asked Ms. Swenson whether the language in Sec. 3 (2) came from other states? Number 1902 MS. SWENSON replied she did not remember if the language came from other states or not. There was similar language in another bill started last session. There were people from the department who wanted to address the Synar Amendment issue. We were not sure if the provision needed to be included or not. We were doing compliance checks of the regulations. Number 1947 LOREN JONES, Director, Division of Alcoholism and Drug Abuse, Department of Health and Social Services, was the first person to testify in Juneau. In response to Representative Berkowitz's comments on undercover operations, the department supported that section of the legislation because it gave a tool to police departments. Some police departments felt that they did not have the right to use minors. The section did not mandate police departments, but put the option into statute. The Department of Public Safety, however, felt it was a drain on resources and it was not appropriate to use minors in that way. That was one of the reasons the bill last year did not pass the Senate. The Department of Health and Social Services had used minors in compliance checks for evidence. It was not for a criminal case; it was strictly to check that the state was in compliance with the Synar Amendment. The attorney's general office said that if a minor was trained by the department; followed the protocol; and was supervised by an adult, they were constructively not guilty of possessing tobacco. If the purchase was successful, the minor immediately turned it over to the supervising adult upon leaving the store. There was no penalty imposed because the department did not have any enforcement powers. Therefore, it was the only tool that the federal government would accept as proof that the state was doing compliance checks. If it took something in statute to have the tool available for law enforcement and to protect their interest, then the department would support the provision in the bill. Number 2088 REPRESENTATIVE VEZEY asked Mr. Jones to explain what he thought Section 1 meant. Number 2098 MR. JONES replied under existing law vending machines could only be in a place where a person had a license to sell alcohol or in an employee break room. The change would allow a vending machine to be in an employee break room if it was not accessible to employees under the age of 19. Number 2132 REPRESENTATIVE VEZEY asked Mr. Jones how he would propose to say that they had been denied access? Number 2137 MR. JONES replied he was not sure how that would be done unless there were two separate break rooms; whereby, one would be keyed and only those over 19 years of age would have a key. That was not the only way, however. Number 2158 CHAIR JAMES stated if there were employees under the age of 19 then a vending machine would not be able to be in the break room. That would be the effect of the provision in the bill. Number 2172 MR. JONES replied the new federal requirements stated: "no vending machines or self-service displays except in places that never have anyone under 18 present". Number 2192 CHAIR JAMES asked Mr. Jones if the federal requirement he was referring to was a regulation change? MR. JONES replied they were regulations adopted by the Food and Drug Administration. CHAIR JAMES wondered, therefore, if the state had to comply with the laws? MR. JONES replied he was not qualified to answer the question. We would hope that vendors who sold tobacco would be in compliance. CHAIR JAMES announced the bill would be held over until April 8, 1997. ADJOURNMENT Number 2219 CHAIR JAMES adjourned the House State Affairs Standing Committee meeting at 8:48 a.m.