Legislature(1997 - 1998)

04/03/1997 08:06 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                               
 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             
 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               
 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,            
 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             
 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                
 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                 
 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                  
 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,              
 Number 2219                                                                   
 CHAIR JAMES adjourned the House State Affairs Standing Committee              
 meeting at 8:48 a.m.                                                          

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