00 CS FOR SENATE BILL NO. 209(STA) 01 "An Act relating to a prohibition on smoking in certain locations; providing for a local 02 option election with respect to smoking in public places; and providing for an effective 03 date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 18.35 is amended by adding new sections to read: 06 Article 4. Regulation of Smoking in Public. 07 Sec. 18.35.301. Prohibition of smoking. (a) Except as provided in (b) of this 08 section, smoking is prohibited in the following places: 09 (1) enclosed areas at or within 10 (A) a sports arena, public educational facility, private 11 educational facility, shopping mall, or other enclosed public space; 12 (B) a bus, taxicab, ferry, or other public transportation vehicle; 13 (C) a public transit depot, bus shelter, airport terminal, airport 14 fuel facility, or other public transportation facility; 01 (D) an office building, common area, office, employee lounge, 02 hotel, motel, restaurant, bar, retail store, or other enclosed area in a place of 03 employment; 04 (E) a room, chamber, place of meeting, or other enclosed place 05 of government or public assembly located on property that is owned or 06 operated by the state, a municipality, or a regional educational attendance area, 07 or by a board, council, commission, committee, authority, or other agency of 08 the state, a municipality, or regional educational attendance area; 09 (F) a building or residence that is used to provide paid child 10 care, whether or not children are present in the building or residence; 11 (G) a health care facility; 12 (H) a vehicle that is a place of employment, except as provided 13 in (b)(4) of this section; 14 (I) a marine vessel operating as a shore-based fisheries business 15 under AS 43.75; 16 (2) at or within 17 (A) an area located at a public or private school or a state or 18 municipal park that is primarily designated as a place for children to play; 19 (B) a seating area for an outdoor arena, stadium, or 20 amphitheater; 21 (C) 50 feet of an entrance to a health care facility; 22 (D) 10 feet of an entrance to a bar or restaurant licensed or 23 permitted to serve alcoholic beverages; or 24 (E) 20 feet of an entrance, open window, or heating or 25 ventilation system air intake vent at a place of employment or other enclosed 26 area at a place where smoking is prohibited under this section. 27 (b) Unless the owner or operator prohibits it, smoking is allowed in the 28 following places: 29 (1) a private club that is not licensed or permitted to serve alcoholic 30 beverages and is not a place of employment, unless the private club is hosting an event 31 that is open to the public; 01 (2) a private residence, unless it is a residence at which the care of 02 children or adults is provided on a fee-for-service basis, a residence in a health care 03 facility, or a residence located within a hotel or motel; 04 (3) a marine vessel, when the vessel is engaged in commercial fishing 05 or sport charter fishing; 06 (4) a vehicle that is a place of employment used exclusively by one 07 employee; 08 (5) a retail tobacco store; in this paragraph, "retail tobacco store" 09 (A) means a retail store 10 (i) that sells primarily cigarettes, cigars, tobacco and 11 products containing tobacco, and pipes and other smoking accessories; 12 (ii) in which the sale of other products is incidental; 13 (iii) that derives at least 90 percent of its gross revenue 14 from the sale of cigarettes, cigars, tobacco and products containing 15 tobacco, and pipes and other smoking accessories; and 16 (iv) that is a freestanding building not attached to 17 another business or to a residence; 18 (B) does not include 19 (i) a tobacco department or section of a business that 20 does not meet the criteria in (A) of this paragraph; 21 (ii) a business that is also a restaurant, a grocery store, 22 or licensed to sell alcoholic beverages or pull-tabs; or 23 (iii) a retail store that is within an indoor public place or 24 a workplace. 25 (c) Nothing in this section authorizes smoking prohibited under another law. 26 Sec. 18.35.331. Obligations of employers, owners, and operators. (a) A 27 person who is in charge of a place or vehicle where smoking is prohibited under 28 AS 18.35.301 shall conspicuously display in the place or vehicle a sign that reads 29 "Smoking Prohibited by Law--Maximum Fine $100" and includes the international 30 symbol for no smoking or, in the alternative, the words "No Puffin" with a pictorial 31 representation of a Horned Puffin or Tufted Puffin holding a burning cigarette 01 enclosed in a red circle crossed with a red bar. 02 (b) A person in charge of a building at which smoking is prohibited within a 03 specific distance from the entrance of the building under AS 18.35.301 shall 04 conspicuously display a sign that reads "Smoking within (number of feet) Feet of 05 Entrance Prohibited by Law--Maximum Fine $100" visible from the outside of each 06 entrance to the building. 07 (c) The owner, operator, manager, or other person who manages a building or 08 other place where smoking is prohibited under AS 18.35.301 may not provide ashtrays 09 or other smoking accessories for use in that building or place. 10 (d) The department shall furnish signs required under this section to a person 11 who requests them with the intention of displaying them. 12 (e) An employer may not permit an employee, customer, or other person to 13 smoke inside an enclosed area at a place of employment. 14 Sec. 18.35.344. Violations and civil penalties. (a) The commissioner shall 15 adopt by regulation procedures for filing, processing, and investigating reports of 16 violations of AS 18.35.301, 18.35.331, and 18.35.357. 17 (b) If, after investigating a report made under this section, the commissioner 18 determines that a violation has occurred, the commissioner may 19 (1) file a civil complaint in the district court to enforce the provisions 20 of AS 18.35.301, 18.35.331, and 18.35.357; or 21 (2) issue a citation under AS 18.35.345(b). 22 (c) A person who violates AS 18.35.301 and against whom the commissioner 23 has filed a civil complaint under this section is punishable by a civil penalty of not 24 more than $100. 25 (d) A person who fails to comply with a duty imposed on that person by 26 AS 18.35.331 and against whom the commissioner has filed a civil complaint under 27 this section is punishable by a civil penalty not to exceed 28 (1) $100 for a first failure to comply; 29 (2) $200 for a second failure to comply that occurs within 24 months 30 after the date the person was fined for a first failure to comply; 31 (3) $500 for each failure to comply that occurs within 24 months after 01 the date the person was fined for a second failure to comply. 02 (e) A person who violates AS 18.35.357 and against whom the commissioner 03 has filed a civil complaint under this section is punishable by a civil penalty not to 04 exceed $1,000. 05 (f) The department may provide for the payment of a civil penalty under this 06 section by mail. 07 Sec. 18.35.345. Citations; fines. (a) A peace officer may issue a citation for a 08 violation of AS 18.35.301 committed in the officer's presence or for a violation of 09 AS 18.35.331 or 18.35.357. The provisions of AS 12.25.175 - 12.25.230 apply to the 10 issuance of a citation under this subsection. 11 (b) An employee of the department designated by the commissioner to enforce 12 the provisions of AS 18.35.301, 18.35.331, or 18.35.357 may issue a citation for a 13 violation of AS 18.35.301, 18.35.331, or 18.35.357 regardless of whether the violation 14 was committed in the employee's presence. A citation issued under this subsection 15 shall be in the same form and shall be processed in the same manner as a citation 16 issued by a peace officer under (a) of this section. An employee of the department may 17 not arrest a person for a violation of AS 18.35.301, 18.35.331, or 18.35.357. 18 (c) A person who violates AS 18.35.301 as alleged in a citation under (a) or 19 (b) of this section is guilty of a violation, as defined in AS 11.81.900, and punishable 20 by a fine not to exceed $100 for each violation. 21 (d) A person who fails to comply with a duty imposed on that person by 22 AS 18.35.331 as alleged in a citation under (a) or (b) of this section is guilty of a 23 violation as defined in AS 11.81.900(b) and punishable by a fine not to exceed 24 (1) $100 for a first failure to comply; 25 (2) $200 for a second failure to comply that occurs within 24 months 26 after the date the person was fined under this section for a first failure to comply; 27 (3) $500 for each failure to comply that occurs within 24 months after 28 the date the person was fined under this section for a second failure to comply. 29 (e) A person who violates AS 18.35.357 as alleged in a citation under (a) or 30 (b) of this section is guilty of a violation, as defined in AS 11.81.900, and punishable 31 by a fine not to exceed $1,000 for each violation. 01 (f) The supreme court shall establish a schedule of bail amounts for violations 02 of AS 18.35.301, 18.35.331, and 18.35.357, but in no event may the bail amount 03 exceed the maximum fine that may be imposed for the violation under (c) - (e) of this 04 section. The bail amount for a violation must appear on the citation. 05 (g) If a person cited for a violation under this section does not contest the 06 citation, the person may, on or before the 30th day after the date of the citation, mail 07 or personally deliver to the clerk of the court in which the citation is filed 08 (1) the amount of bail indicated on the citation for that violation; and 09 (2) a copy of the citation indicating that the right to an appearance is 10 waived, a plea of no contest is entered, and the bail is forfeited. 11 (h) When bail has been forfeited under (g) of this section, a judgment of 12 conviction shall be entered. Forfeiture of bail is a complete satisfaction for the 13 violation. The clerk of the court accepting the bail shall provide the violator with a 14 receipt stating that fact if requested. 15 (i) A person cited under this section is guilty of failure to obey a citation under 16 AS 12.25.230 if the person fails to pay the bail amount established under (f) of this 17 section or fails to appear in court as required. 18 Sec. 18.35.346. Injunctions. The commissioner or another affected party may 19 bring a civil action in the superior court to enjoin a violation of AS 18.35.301, 20 18.35.331, or 18.35.357. 21 Sec. 18.35.351. Powers and duties of the commissioner. (a) The 22 commissioner shall 23 (1) administer and enforce the requirements of AS 18.35.301 - 24 18.35.366; 25 (2) adopt regulations under AS 44.62 (Administrative Procedure Act) 26 necessary to carry out the duties under this section. 27 (b) In addition to other powers granted the commissioner under AS 18.35.301 28 - 18.35.366, the commissioner may delegate to another agency the authority to 29 implement and enforce one or more provisions of AS 18.35.301 - 18.35.366. 30 (c) Nothing in this section limits the authority of a peace officer to enforce 31 law. 01 Sec. 18.35.356. Public education. (a) The commissioner shall ensure 02 employers, property owners, property operators, and other members of the public are 03 provided ongoing access to 04 (1) a program of education regarding the requirements in AS 18.35.301 05 - 18.35.366; 06 (2) an electronically published printable brochure that summarizes the 07 requirements in AS 18.35.301 - 18.35.366. 08 (b) The program of education under (a) of this section may be provided in 09 combination with the comprehensive smoking education, tobacco use prevention, and 10 tobacco control program established in AS 44.29.020(a)(14). 11 Sec. 18.35.357. Nonretaliation. (a) An employer may not discharge, refuse to 12 hire, or in any other manner retaliate against an employee or applicant for employment 13 because the employee or applicant cooperates with or initiates enforcement of a 14 requirement in AS 18.35.301 - 18.35.366. 15 (b) The owner or operator of a vehicle or other place that is subject to a 16 requirement in AS 18.35.301 - 18.35.366 may not retaliate against a customer or other 17 member of the public for cooperating with or initiating enforcement of a requirement 18 in AS 18.35.301 - 18.35.366. 19 Sec. 18.35.359. Conflicts with local requirements. Nothing in AS 18.35.301 20 - 18.35.366 prohibits a municipality adopting and enforcing a law that establishes 21 (1) additional prohibitions on smoking; or 22 (2) additional duties for employers, owners, operators, and other 23 persons who are subject to the requirements of AS 18.35.331 related to smoking. 24 Sec. 18.35.361. Local option to permit smoking in public places. (a) The 25 following question, appearing alone, may be placed before the voters of a municipality 26 in accordance with AS 18.35.363: "Shall (name of municipality) exercise its option 27 not to comply with AS 18.35.301 - 18.35.346, relating to smoking in certain public 28 places? (yes or no)." 29 (b) If a majority of the voters vote "yes" on the question set out in (a) of this 30 section, AS 18.35.301 - 18.35.346 do not apply within the boundaries of the 31 municipality. 01 Sec. 18.35.362. Procedure for local option elections. (a) The local governing 02 body of a municipality shall, whenever a number of registered voters equal to at least 03 10 percent of the number of votes cast at the last regular municipal election petition 04 the local governing body to do so, place on a separate ballot at the next regular 05 election or at a special election the question set out in AS 18.35.361(a) that is the 06 subject of the petition. The local governing body shall conduct the election in 07 accordance with the election ordinance of the municipality. 08 (b) Notwithstanding any other provision of law, an election under (a) of this 09 section to reverse the results imposed under AS 18.35.361 may not be conducted more 10 than once every 12 months. 11 (c) If a majority of the persons voting on the question vote to 12 (1) adopt the option to allow smoking in public places, the option is 13 effective the first day of the month following the certification of the results of the 14 election; 15 (2) remove the option to permit smoking in public places, the option is 16 repealed effective the first day of the month following certification of the results of the 17 election. 18 (d) AS 29.26.110 - 29.26.160 apply to a petition under (a) of this section in a 19 general law municipality except the 20 (1) number of required signatures is determined under (a) of this 21 section rather than under AS 29.26.130; 22 (2) application filed under AS 29.26.110 must contain the question set 23 out in AS 18.35.361 rather than containing an ordinance or resolution; 24 (3) petition must contain the question set out in AS 18.35.361 rather 25 than the material required under AS 29.26.120(a)(1) and (2). 26 Sec. 18.35.363. Property owners may impose restrictions. Notwithstanding 27 AS 18.35.361 and 18.35.362, an owner of property, including a local, state, or federal 28 government agency, may limit or prohibit smoking on the owner's property. 29 Sec. 18.35.366. Definitions. In AS 18.35.301 - 18.35.366, 30 (1) "business" means a for-profit or nonprofit sole proprietorship, 31 partnership, joint venture, corporation, professional corporation, private club, retail 01 seller of goods or services, or other business entity; 02 (2) "commissioner" means the commissioner of health and social 03 services or the commissioner's designee; 04 (3) "department" means the Department of Health and Social Services; 05 (4) "e-cigarette" means an electronic device that uses a heating 06 element, battery, or electronic circuit to issue a vapor for inhalation in a manner that 07 simulates smoking a lighted or heated cigar, cigarette, or pipe, or other lighted or 08 heated tobacco or plant product intended for inhalation; 09 (5) "employee" means a person who is employed by a business for 10 compensation or works for a business as a volunteer without compensation; 11 (6) "employer" means the state, a municipality, a regional educational 12 attendance area, and a person or a business with one or more employees; 13 (7) "enclosed area" means space between a floor and a ceiling that is 14 bounded on two or more sides by a combination of walls, doorways, windows, or 15 other physical barriers that may be open, partially open, closed, retractable, temporary, 16 or permanent; 17 (8) "health care facility" means a private, municipal, or state hospital; 18 independent diagnostic testing facility; primary care outpatient facility; skilled nursing 19 facility; kidney disease treatment center, including freestanding hemodialysis units; 20 intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or 21 Alaska Veterans' Home administered by the Department of Health and Social Services 22 under AS 47.55; long-term care facility; psychiatric hospital; residential psychiatric 23 treatment center, as defined in AS 18.07.111 or AS 47.32.900, and other facilities, 24 places of employment or offices operated for use by doctors, nurses, surgeons, 25 chiropractors, physical therapists, physicians, psychiatrists, or dentists or other 26 professional health care providers to provide health care; 27 (9) "place of employment" means work areas, private offices, hotel and 28 motel rooms, employee lounges, restrooms, conference rooms, classrooms, cafeterias, 29 hallways, vehicles, and other employee work areas that are under the control of an 30 employer; 31 (10) "private club" means a building or portion of a building used only 01 for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose 02 by one organization that has been granted an exemption from the payment of federal 03 income tax as a club under 26 U.S.C. 501 (Internal Revenue Code); 04 (11) "public place" means an area to which the public is invited or into 05 which the public is permitted, including but not limited to, educational facilities, 06 entertainment venues, food and beverage service establishments, offices, retail stores, 07 and transportation facilities and vehicles accessible to the public; and 08 (12) "smoking" means using or operating an e-cigarette or other oral 09 smoking device or inhaling, exhaling, or burning, a lighted or heated cigar, cigarette, 10 or pipe or other lighted or heated tobacco or plant product intended for inhalation. 11 * Sec. 2. AS 29.10.200 is amended by adding a new paragraph to read: 12 (63) AS 29.35.082 (smoking). 13 * Sec. 3. AS 29.35 is amended by adding a new section to read: 14 Sec. 29.35.082. Smoking. (a) A municipality may regulate smoking to the 15 extent permitted by AS 18.35.359 - 18.35.363. 16 (b) This section applies to home rule and general law municipalities. 17 * Sec. 4. AS 18.35.300, 18.35.305, 18.35.310, 18.35.320, 18.35.330, 18.35.340, 18.35.341, 18 18.35.342, 18.35.343, 18.35.350, 18.35.355, and 18.35.365 are repealed. 19 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 20 read: 21 APPLICABILITY. AS 18.35.301 - 18.35.366, added by sec. 1 of this Act, apply to 22 violations or failures to comply that occur on or after the effective date of sec. 1 of this Act. 23 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 TRANSITION; REGULATIONS. The Department of Health and Social Services may 26 adopt regulations necessary to implement AS 18.35.301 - 18.35.366, added by sec. 1 of this 27 Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not 28 before the effective date of sec. 1 of this Act. 29 * Sec. 7. Section 6 of this Act takes effect immediately under AS 01.10.070(c). 30 * Sec. 8. Except as provided in sec. 7 of this Act, this Act takes effect October 1, 2014.