Legislature(1995 - 1996)

04/29/1996 01:30 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
                   SENATE JUDICIARY COMMITTEE                                  
                         April 29, 1996                                        
                           1:30 p.m.                                           
                                                                               
  MEMBERS PRESENT                                                              
                                                                               
 Senator Robin Taylor, Chairman                                                
 Senator Lyda Green, Vice-Chairman                                             
 Senator Mike Miller                                                           
 Senator Al Adams                                                              
                                                                               
  MEMBERS ABSENT                                                               
                                                                               
 Senator Johnny Ellis                                                          
                                                                               
  COMMITTEE CALENDAR                                                           
                                                                               
 CS FOR HOUSE BILL NO. 295(2d JUD)                                             
 "An Act relating to forfeitures of property; and relating to the              
 custody and disposition of property in the custody of municipal law           
 enforcement agencies."                                                        
                                                                               
 SENATE CS FOR CS FOR HOUSE BILL NO. 457(JUD)                                  
 "An Act relating to the unlicensed practice of certain occupations            
 for which licenses are required."                                             
                                                                               
  PREVIOUS SENATE COMMITTEE ACTION                                             
                                                                               
 HB 295 - See Judiciary minutes dated 4/24/96.                                 
                                                                               
 HB 457 - See Labor and Commerce minutes dated 4/18/96.                        
                                                                               
  WITNESS REGISTER                                                             
                                                                               
 Walter Wilcox                                                                 
 c/o Representative Jeanette James                                             
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Testified for sponsor of HB 457                        
                                                                               
 Catherine Reardon                                                             
 Division of Occupational Licensing                                            
 P.O. Box 110806                                                               
 Juneau, Alaska  99811-0806                                                    
  POSITION STATEMENT:  Supports HB 457                                         
                                                                               
 Patti Swenson                                                                 
 c/o Representative Con Bunde                                                  
 Alaska State Capitol                                                          
 Juneau, Alaska  99801-1182                                                    
  POSITION STATEMENT:   Testified for sponsor of HB 365                        
                                                                               
  ACTION NARRATIVE                                                             
                                                                               
 TAPE 96-43, SIDE A                                                            
 Number 001                                                                    
                                                                               
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 3:58 p.m.  Present were Senators Adams, Green, Taylor and            
 Miller.  The first order of business was HB 295.                              
                                                                               
       HB 295 PROPERTY HELD BY LAW ENFORCEMENT AGENCIES                       
                                                                              
 SENATOR GREEN moved CSHB 295(2d JUD) from committee with individual           
 recommendations.  There being no objection, the motion carried.               
                                                                               
           HB 457 UNLICENSED PRACTICE OF OCCUPATION                           
                                                                              
 CHAIRMAN TAYLOR announced he had an amendment drafted to HB 457               
 which would include all other items listed under Title 8 for                  
 licensure within the state.                                                   
                                                                               
 WALT WILCOX, legislative aide to Representative James, sponsor of             
 the measure, explained HB 457 imposes civil penalties if an                   
 unlicensed person practices, or offers to practice, an occupation             
 in the state that is regulated under Title 8.  The civil penalty              
 could not exceed $5,000 for each offense; provides enforcement                
 mechanisms; and originated from a recommendation by the Legislative           
 Budget and Audit Committee.  Both the Department of Commerce and              
 Economic Development (DCED) and Legislative Budget and Audit                  
 Committee believe this mechanism will prevent unlicensed                      
 practitioners from practicing more expediently than criminal                  
 proceedings.                                                                  
                                                                               
 SENATOR ADAMS asked Mr. Wilcox if he supports Chairman Taylor's               
 amendment.  MR. WILCOX replied the sponsor is not opposed to the              
 amendment as long as DCED agrees to it.                                       
                                                                               
 CATHERINE REARDON, Director of the Division of Occupational                   
 Licensing within DCED testified in support of HB 457 as it will               
 give the Division an important enforcement tool.  Current procedure           
 requires the Division to take an unlicensed practitioner to court             
 on a misdemeanor which is not feasible.  HB 457 will provide for              
 due process through a hearing officer and an appeal right to the              
 court system.  She stated it appears the proposed amendment would             
 give DCED the responsibility for enforcement of people who practice           
 law without a license.  She asked if a definition of the practice             
 of law is contained in the court rules.                                       
                                                                               
 CHAIRMAN TAYLOR replied an abbreviated definition is in the court             
 rules and Alaska statute as well.                                             
 MS. REARDON stated DCED does not have the authority to adopt                  
 regulations further defining that practice.                                   
                                                                               
 CHAIRMAN TAYLOR responded the Department could address such a                 
 situation civilly, rather than criminally with a class A                      
 misdemeanor.                                                                  
                                                                               
 MS. REARDON explained that at present, the Alaska Bar Association             
 and Supreme Court address attorneys and the Alaska Bar Association            
 is considering a rule which would give an injunctive option.                  
 CHAIRMAN TAYLOR verified that rule is only a proposal at this time.           
                                                                               
 SENATOR GREEN asked if any other occupations do not come under the            
 purview of the DCED.  CHAIRMAN TAYLOR thought all other occupations           
 were included in the amendment.  MS. REARDON replied the amendment            
 covers all occupations licensed through DCED.                                 
                                                                               
 SENATOR GREEN asked if attorneys are issued licenses through DCED             
 since they also fall under the purview of the Bar Association.                
 CHAIRMAN TAYLOR stated attorneys fall under Title 8 which provides            
 for a criminal penalty for the unlicensed practice of a profession,           
 which is why the amendment would give DCED the same authority to              
 fine them.                                                                    
                                                                               
 SENATOR GREEN asked if criminal charges could still be pursued.               
 CHAIRMAN TAYLOR replied they could but that process is lengthy and            
 rarely used.                                                                  
                                                                               
 MS. REARDON stated DCED very much supports the bill and has                   
 prepared a zero fiscal note to accompany the bill.                            
                                                                               
 SENATOR ADAMS moved amendment #1.  There being no objection, the              
 motion carried.                                                               
                                                                               
 SENATOR ADAMS moved and asked unanimous consent that CSHB 457(JUD)            
 as amended be moved out of committee with individual                          
 recommendations.  There being no objection, the motion carried.               
                                                                               
             HB 365 MINOR IN POSSESSION OF TOBACCO                            
                                                                              
 PATTI SWENSON, staff to Representative Con Bunde, sponsor of HB
 365, gave the following summary of the legislation.  In 1992 the              
 problem of tobacco sales to minors was addressed by the Synar                 
 amendment on the federal level.  The amendment required states to             
 conduct random, unannounced, inspections of locations which sell              
 tobacco and to show reduction in illegal sales.  In order to reduce           
 rates of nicotine addiction in youth and to assure compliance with            
 the Synar amendment, members of the Tobacco Control Alliance have             
 been seeking to undertake compliance checks to determine which                
 merchants are selling tobacco to children.  Compliance checks                 
 involve having undercover youth attempt to buy tobacco.                       
                                                                               
 Number 159                                                                    
                                                                               
 SENATOR MILLER stated he was leary of the bill because it would               
 require disguising a 16-year old as an adult.                                 
                                                                               
 MS. LEWIS responded no disguise is used.  When buying cigarettes,             
 the children don't try to disguise their ages, and if asked their             
 ages, they are told not to lie.  Tobacco possession by minors is              
 currently illegal and law enforcement agencies are reluctant to use           
 children for compliance checks because the evidence may not be                
 valid if this practice is not permissible by law.  The same                   
 practice is used for alcoholic beverages.                                     
                                                                               
 SENATOR ADAMS asked how much a minor would be paid for being a                
 snitch in an undercover operation.  MS. LEWIS was unsure whether              
 anyone would be paid.                                                         
                                                                               
 Number 195                                                                    
                                                                               
 GLEN RAY of the Department of Health and Social Services                      
 stated no methodology for paying minors has been set up.  The                 
 practice of doing compliance checks in Dillingham, Ketchikan,                 
 Juneau and Anchorage has been done by volunteers, to date.  Whether           
 or not the individuals will be paid is uncertain.  His 15 year old            
 son has participated in compliance checks in Juneau, and was sold             
 cigarettes in 60 percent of his attempts, which is a bit lower than           
 the national average.  The children who participate in compliance             
 checks are encouraged not to lie or mislead anyone, and it is                 
 important that the child look their age.                                      
                                                                               
 CHAIRMAN TAYLOR referred to the required approval and parental                
 consent provision to participate, if the child is not of the age of           
 majority, and questioned whether children of any age might                    
 participate. MR. RAY responded there is no minimum age, but                   
 research shows that children at about age 14 are able to buy                  
 cigarettes.                                                                   
                                                                               
 CHAIRMAN TAYLOR commented it seems inconsistent to allow these same           
 children to get free condoms through various programs and get                 
 abortions without parental consent.  He asked whether the bill                
 should contain a minimum age.                                                 
                                                                               
 MR. RAY responded he did not know what the minimum age should be.             
 The point of the activity is to identify the locations where                  
 children can buy cigarettes because some stores consistently sell             
 them to minors.                                                               
                                                                               
 SENATOR GREEN asked what happens to the merchant who is not in                
 compliance.  MR. RAY answered there is a fine of $300, but to his             
 knowledge no one has ever been fined.                                         
 MR. RAY informed committee members if a minor attempted to do a               
 compliance check without being accompanied by a police officer, the           
 minor could be fined and punished.  This bill would allow minors to           
 work in cooperation with the police.                                          
                                                                               
 CHAIRMAN TAYLOR asked if this bill would be passed to allow the               
 child to break the law.  MR. RAY believed it would allow a child to           
 work in cooperation with police.                                              
                                                                               
 CHAIRMAN TAYLOR asked if an underage delivery person could deliver            
 cigarettes as part of a grocery order.  MR. RAY believed that would           
 be illegal if HB 365 passes.                                                  
                                                                               
 MS. SWENSON informed committee members $480,000 in federal funds              
 for FY 96 for substance abuse and treatment block grants will be              
 withheld if the state is not in compliance with the Synar                     
 amendment.                                                                    
                                                                               
 CHAIRMAN TAYLOR stated the Synar amendment requires an inspection             
 program but does not require that minors be involved.  MS. SWENSON            
 agreed, but questioned how the state could find out if stores were            
 selling tobacco to minors.  CHAIRMAN TAYLOR commented a compliance            
 check could be conducted with surveillance.                                   
                                                                               
 SENATOR GREEN asked how other states are fulfilling this                      
 requirement.  MR. RAY offered to get that information for committee           
 members.                                                                      
                                                                               
 SENATOR ADAMS questioned whether having an adult stationed outside            
 of a store to interview minors who have purchased cigarettes would            
 meet compliance requirements.                                                 
                                                                               
 Number 352                                                                    
                                                                               
 KAREN DELANEY, Tobacco Prevention and Control Coordinator, DHSS,              
 stated the Department of Health and Human Services' and Substance             
 Abuse and Mental Health Administration's (SAMHA) written summaries            
 of studies nationwide have included procedures for youth                      
 involvement and encourage the use of youth, ages 15 and 16, in                
 compliance checks.  As the state moves into Synar implementation,             
 compliance check procedures will be standardized, and the age of              
 youth to be involved will be defined.  The federal regulations do             
 not require the use of youth in compliance checks, however the                
 state cannot be effective in monitoring compliance without youth              
 involvement.                                                                  
                                                                               
 SENATOR GREEN questioned what the penalty would be if a minor was             
 smoking on the street.  MR. RAY replied the child would be cited,             
 could be fined up to $50 and the court could require the child to             
 take part in an educational program.                                          
                                                                               
 MS. DELANEY stated SAMHA has estimated it will cost the state                 
 $250,000 to implement the Synar amendment provisions annually.  If            
 HB 365 does not pass, the cost will increase, because involving               
 youth in inspections would require local legal authority in every             
 community that is identified to be part of the random, unidentified           
 inspections.  Also, the penalty associated with state non-                    
 compliance during this third applicable year of Synar                         
 implementation is $480,000 and will increase to 40 percent of the             
 federal block grant to the State of Alaska next year if it remains            
 out of compliance.                                                            
                                                                               
 CHAIRMAN TAYLOR asked if we need authority of this type for the               
 purposes of prosecuting juveniles on illegal drug activities.  MR.            
 RAY replied the Division of Public Health has focussed on the                 
 consequences of long term tobacco use, so could not address the               
 question at this time.                                                        
                                                                               
 CHAIRMAN TAYLOR agreed there are major health ramifications for               
 long term tobacco use, but discussed the huge ramifications of                
 short term use of other drugs.  He believed there to be a shift in            
 policy for the involvement and utilization of young people.                   
                                                                               
 MS. DELANEY emphasized HB 365 addresses compliance checks for                 
 tobacco and did not believe it would be possible to use youth to              
 check for the sale of illegal street drugs.                                   
                                                                               
 CHAIRMAN TAYLOR asked Mr. Ray to provide the committee with                   
 information on how other states have addressed this issue, and                
 announced the bill will be taken up at the next hearing.  He                  
 adjourned the meeting at 4:27 p.m.                                            
                                                                               
                                                                               

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