Legislature(1995 - 1996)
04/29/1996 01:30 PM Senate JUD
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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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