00 CS FOR HOUSE BILL NO. 174(CRA) 01 "An Act raising the minimum age to purchase, sell, exchange, or possess tobacco, a 02 product containing nicotine, or an electronic smoking product; and providing for an 03 effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 11.76.100(a) is amended to read: 06 (a) A person commits the offense of selling or giving tobacco to a person 07 under 21 years of age [MINOR] if the person 08 (1) negligently sells a cigarette, a cigar, tobacco, or a product 09 containing tobacco to a person under 21 [19] years of age; 10 (2) is 21 [19] years of age or older and negligently exchanges or gives 11 a cigarette, a cigar, tobacco, or a product containing tobacco to a person under 21 [19] 12 years of age; 13 (3) maintains a vending machine that dispenses cigarettes, cigars, 14 tobacco, or products containing tobacco; or 01 (4) holds a business license endorsement under AS 43.70.075 and 02 allows a person under 21 [19] years of age to sell a cigarette, a cigar, tobacco, or a 03 product containing tobacco. 04 * Sec. 2. AS 11.76.100(b) is amended to read: 05 (b) Notwithstanding the provisions of (a) of this section, a person who 06 maintains a vending machine is not in violation of (a)(3) of this section if the vending 07 machine is located 08 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 09 licensed as a club under AS 04.11.110, or licensed as a package store under 10 AS 04.11.150; and 11 (A) as far as practicable from the primary entrance; and 12 (B) in a place that is directly and continually supervised by a 13 person employed on the licensed premises during the hours the vending 14 machine is accessible to the public; or 15 (2) in an employee break room or other controlled area of a private 16 work place that is not generally considered a public place and the room or area 17 contains a posted warning sign at least 11 inches by 14 inches indicating that 18 possession of tobacco by a person under 21 [19] years of age is prohibited under 19 AS 11.76.105. 20 * Sec. 3. AS 11.76.105 is amended to read: 21 Sec. 11.76.105. Possession of tobacco, electronic smoking products, or 22 products containing nicotine by a person under 21 years of age [MINOR]. (a) A 23 person under 21 [19] years of age may not knowingly possess a cigarette, a cigar, 24 tobacco, a product containing tobacco, an electronic smoking product, or a product 25 containing nicotine in this state. [THIS SUBSECTION DOES NOT APPLY TO A 26 PERSON WHO IS A PRISONER AT AN ADULT CORRECTIONAL FACILITY.] 27 (b) In a prosecution under (a) of this section for possession of an electronic 28 smoking product or a product containing nicotine, it is an affirmative defense that the 29 electronic smoking product or product containing nicotine possessed by the person 30 under 21 [19] years of age was intended or expected to be consumed without being 31 combusted, and the electronic smoking product or product containing nicotine 01 (1) has been approved by the United States Food and Drug 02 Administration for sale as a tobacco use cessation or harm reduction product or for 03 other medical purposes; 04 (2) was being marketed and sold for the approved purposes; and 05 (3) was 06 (A) prescribed by a health care professional; 07 (B) given to the person by the person's parent or guardian; 08 (C) provided by a state-approved tobacco cessation program 09 administered by the Department of Health and Social Services; or 10 (D) provided by a pharmacist to a person 18 years of age or 11 older without a prescription. 12 (c) Possession of tobacco, an electronic smoking product, or a product 13 containing nicotine by a person under 21 years of age [MINOR] is a violation. 14 * Sec. 4. AS 11.76.106(b) is amended to read: 15 (b) Subsection (a) does not apply if the sale 16 (1) is by vending machine as provided under AS 11.76.100(b) or 17 11.76.109(f); 18 (2) is a wholesale transaction, the person is licensed as a manufacturer 19 or distributor under AS 43.50.010, and the sale occurs on premises where no retail 20 transactions occur; 21 (3) is by a retailer who sells primarily cigarettes, cigars, tobacco, 22 products containing tobacco, electronic smoking products, or products containing 23 nicotine and who restricts access to the premises to only those individuals who are 21 24 [19] years of age or older; or 25 (4) is of electronic smoking products over the Internet to a person 21 26 [19] years of age or older. 27 * Sec. 5. AS 11.76.109(a) is amended to read: 28 (a) A person commits the offense of selling or giving an electronic smoking 29 product or a product containing nicotine to a person under 21 years of age [MINOR] 30 if the person 31 (1) negligently sells an electronic smoking product or a product 01 containing nicotine to a person under 21 [19] years of age; 02 (2) is 21 [19] years of age or older and negligently exchanges or gives 03 an electronic smoking product or a product containing nicotine to a person under 21 04 [19] years of age; 05 (3) maintains a vending machine that dispenses electronic smoking 06 products or products containing nicotine; or 07 (4) holds a business license endorsement under AS 43.70.075 and 08 allows a person under 21 [19] years of age to sell an electronic smoking product or a 09 product containing nicotine. 10 * Sec. 6. AS 11.76.109(b) is amended to read: 11 (b) The provisions of (a) of this section do not apply to the sale, exchange, or 12 gift to a person under 21 [19] years of age of an electronic smoking product or a 13 product containing nicotine that is intended or expected to be consumed without being 14 combusted if the electronic smoking product or product containing nicotine 15 (1) has been approved by the United States Food and Drug 16 Administration for sale as a tobacco use cessation or harm reduction product or for 17 other medical purposes; 18 (2) is being marketed and sold solely for the approved purposes; and 19 (3) is 20 (A) prescribed by a health care professional; 21 (B) given to a person by the person's parent or legal guardian; 22 (C) provided by a state-approved tobacco cessation program 23 administered by the Department of Health and Social Services; or 24 (D) provided by a pharmacist to a person 18 years of age or 25 older without a prescription. 26 * Sec. 7. AS 11.76.109(d) is amended to read: 27 (d) Notwithstanding (a)(3) of this section, a person who maintains a vending 28 machine is not in violation of (a)(3) of this section if the vending machine is located 29 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 30 licensed as a club under AS 04.11.110, or licensed as a package store under 31 AS 04.11.150, and is located 01 (A) as far as practicable from the primary entrance; and 02 (B) in a place that is directly and continually supervised by a 03 person employed on the licensed premises during the hours the vending 04 machine is accessible to the public; or 05 (2) in an employee break room or other controlled area of a private 06 work place that is not generally considered a public place and the room or area 07 contains a posted warning sign at least 11 inches by 8.5 inches indicating that 08 possession of electronic smoking products or products containing nicotine by a person 09 under 21 [19] years of age without a prescription is prohibited under AS 11.76.109. 10 * Sec. 8. AS 11.76.109(g) is amended to read: 11 (g) Selling or giving an electronic smoking product or a product containing 12 nicotine to a person under 21 years of age [MINOR] is a violation and, upon 13 conviction, is punishable by a fine of not less than $300. 14 * Sec. 9. AS 43.50.105(b) is amended to read: 15 (b) A person who is licensed under this chapter may not ship or cause to be 16 shipped cigarettes to a person in this state unless the person receiving the cigarettes 17 (1) is licensed under this chapter; 18 (2) holds a business license endorsement under AS 43.70.075; 19 (3) is an operator of a customs bonded warehouse under 19 U.S.C. 20 1311 or 19 U.S.C. 1555; 21 (4) is an instrumentality of the federal government or an Indian tribal 22 organization authorized by law to possess cigarettes not taxed under this chapter; or 23 (5) is an individual 21 [19] years of age or older receiving the 24 cigarettes for personal consumption and the tax imposed on the cigarettes under this 25 chapter has been paid. 26 * Sec. 10. AS 43.70.075(f) is amended to read: 27 (f) A person who holds a license endorsement issued under this section shall 28 post on the licensed premises a warning sign as described in this subsection. A 29 warning sign required by this subsection must be at least 8.5 inches by 11 inches and 30 must read: "The sale of electronic smoking products or products containing nicotine 31 without a prescription or tobacco products to persons under age 21 [19] is illegal." A 01 person holding an endorsement issued under this section shall display the warning sign 02 in a manner conspicuous to a person purchasing or consuming tobacco products, 03 electronic smoking products, or products containing nicotine on the licensed premises. 04 The department shall make available the warning signs required under this section to a 05 person who holds an endorsement issued under this section or a person who requests 06 the sign with the intention of displaying it. 07 * Sec. 11. AS 43.70.075(m) is amended to read: 08 (m) The department may initiate suspension of a business license endorsement 09 or the right to obtain a business license endorsement under this section by sending the 10 person subject to the suspension a notice by certified mail, return receipt requested, or 11 by delivering the notice to the person. The notice must contain information that 12 informs the person of the grounds for suspension, the length of any suspension sought, 13 and the person's right to administrative review. A suspension begins 30 days after 14 receipt of notice described in this subsection unless the person delivers a timely 15 written request for a hearing to the department in the manner provided by regulations 16 of the department. If a hearing is requested under this subsection, an administrative 17 law judge of the office of administrative hearings (AS 44.64.010) shall determine the 18 issues by using the preponderance of the evidence test and shall, to the extent they do 19 not conflict with regulations adopted under AS 44.64.060, conduct the hearing in the 20 manner provided by regulations of the department. A hearing under this subsection is 21 limited to the following questions: 22 (1) was the person holding the business license endorsement, or an 23 agent or employee of the person while acting within the scope of the agency or 24 employment of the person, convicted by plea or judicial finding of violating 25 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; 26 (2) if the department does not allege a conviction of AS 11.76.100, 27 11.76.106, 11.76.107, or 11.76.109, did the person, or an agent or employee of the 28 person while acting within the scope of the agency or employment of the person, 29 violate a provision of (a) or (g) of this section; 30 (3) within the 24 months before the date of the department's notice 31 under this subsection, was the person, or an agent or employee of the person while 01 acting within the scope of the agency or employment of the person, convicted of 02 violating AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 or adjudicated for 03 violating a provision of (a) or (g) of this section; 04 (4) did the person holding the business license endorsement establish 05 that the person holding the business license endorsement had adopted and enforced an 06 education, a compliance, and a disciplinary program for agents and employees of the 07 person as provided in (t) of this section; 08 (5) did the person holding the business license endorsement overcome 09 the rebuttable presumption established in (w) of this section; 10 (6) within five years before the date of the violation that is the subject 11 of the hearing, did the department establish that the person holding the business 12 license endorsement 13 (A) previously violated (a) or (g) of this section; 14 (B) previously violated AS 11.76.100, 11.76.106, 11.76.107, or 15 11.76.109 at a location or outlet in a location for which the person holds a 16 business license endorsement, or had an agent or employee previously violate 17 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; this subparagraph does not 18 apply to a prior conviction that served to enhance a suspension period under 19 (d)(2) - (4) of this section; or 20 (C) engaged at a location owned by the person in other conduct 21 that was or is likely to result in the sale of tobacco, electronic smoking 22 products, or products containing nicotine to a person under 21 [19] years of 23 age in violation of AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109. 24 * Sec. 12. AS 43.70.075(t) is amended to read: 25 (t) Based on evidence provided at the hearing under (m)(4) - (6) of this 26 section, the department may reduce the license suspension period under (d) of this 27 section if the person holding the business license endorsement establishes that, before 28 the date of the violation, the person had 29 (1) adopted and enforced a written policy against selling cigarettes, 30 cigars, tobacco, products containing tobacco, electronic smoking products, or products 31 containing nicotine to a person under 21 [19] years of age in violation of 01 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109; 02 (2) informed the person's agents and employees of the applicable laws 03 and their requirements and conducted training on complying with the laws and 04 requirements; 05 (3) required each agent and employee of the person to sign a form 06 stating that the agent and employee has been informed of and understands the written 07 policy and the requirements of AS 11.76.100, 11.76.106, 11.76.107, and 11.76.109; 08 (4) determined that the agents and employees of the person had 09 sufficient experience and ability to comply with the written policy and requirements of 10 AS 11.76.100, 11.76.106, 11.76.107, and 11.76.109; 11 (5) required the agents and employees of the person to verify the age 12 of purchasers of cigarettes, cigars, tobacco, other products containing tobacco, 13 electronic smoking products, or products containing nicotine by means of a valid 14 government issued photographic identification; 15 (6) established and enforced disciplinary sanctions for noncompliance 16 with the written policy or the requirements of AS 11.76.100, 11.76.106, 11.76.107, 17 and 11.76.109; and 18 (7) monitored the compliance of the agents and employees of the 19 person with the written policy and the requirements of AS 11.76.100, 11.76.106, 20 11.76.107, and 11.76.109. 21 * Sec. 13. AS 43.70.075(w) is amended to read: 22 (w) For purposes of (m)(5) of this section, a conviction for a violation of 23 AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 by the agent or employee of the 24 person who holds the business license endorsement is rebuttably presumed to 25 constitute proof of the fact that the agent or employee negligently sold a cigarette, a 26 cigar, or tobacco, a product containing tobacco, an electronic smoking product, or a 27 product containing nicotine to a person under 21 [19] years of age. The person who 28 holds the business license endorsement may overcome the presumption by 29 establishing by clear and convincing evidence that the agent or employee did not 30 negligently sell a cigarette, a cigar, or tobacco, a product containing tobacco, an 31 electronic smoking product, or a product containing nicotine to a person under 21 [19] 01 years of age in violation of AS 11.76.100, 11.76.106, 11.76.107, or 11.76.109 as 02 alleged in the citation issued to the agent or employee. The presentation of evidence 03 authorized by this subsection does not constitute a collateral attack on the conviction 04 described in this subsection. 05 * Sec. 14. AS 47.12.030(b) is amended to read: 06 (b) When a minor is accused of violating a statute specified in this subsection, 07 other than a statute the violation of which is a felony, this chapter and the Alaska 08 Delinquency Rules do not apply and the minor accused of the offense shall be 09 charged, prosecuted, and sentenced in the district court in the same manner as an 10 adult; if a minor is charged, prosecuted, and sentenced for an offense under this 11 subsection, the minor's parent, guardian, or legal custodian shall be present at all 12 proceedings; the provisions of this subsection apply when a minor is accused of 13 violating 14 (1) a traffic statute or regulation, or a traffic ordinance or regulation of 15 a municipality; 16 (2) AS 11.76.105, relating to the possession of tobacco by a person 17 under 21 [19] years of age; 18 (3) a fish and game statute or regulation under AS 16; 19 (4) a parks and recreational facilities statute or regulation under 20 AS 41.21; 21 (5) [REPEALED] 22 (6) a municipal curfew ordinance, whether adopted under 23 AS 29.35.085 or otherwise, unless the municipality provides for enforcement of its 24 ordinance under AS 29.25.070(b) by the municipality; in place of any fine imposed for 25 the violation of a municipal curfew ordinance, the court shall allow a defendant the 26 option of performing community work; the value of the community work, which may 27 not be lower than the amount of the fine, shall be determined under AS 12.55.055(c); 28 in this paragraph, "community work" includes the work described in AS 12.55.055(b) 29 or work that, on the recommendation of the municipal or borough assembly, city 30 council, or traditional village council of the defendant's place of residence, would 31 benefit persons within the municipality or village who are elderly or disabled. 01 * Sec. 15. AS 11.76.100(e) is repealed. 02 * Sec. 16. This Act takes effect January 1, 2021.