HB 159: "An Act relating to sale, possession, and purchase of tobacco and tobacco products; amending Rules 603 and 611(d), Alaska Rules of Appellate Procedure; and providing for an effective date."
00HOUSE BILL NO. 159 01 "An Act relating to sale, possession, and purchase of tobacco and tobacco 02 products; amending Rules 603 and 611(d), Alaska Rules of Appellate Procedure; 03 and providing for an effective date." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 11.76.100 is repealed and reenacted to read: 06 Sec. 11.76.100. Selling or giving tobacco to a minor. (a) A person commits 07 the offense of selling or giving tobacco to a minor if the person is 19 years of age or 08 older and negligently sells, exchanges, or gives a tobacco product to a person under 09 19 years of age. 10 (b) The court shall forward a record of each person convicted under this 11 section who holds a business license endorsement under AS 43.70.075, or who is an 12 employee or agent of a person who holds a license endorsement under AS 43.70.075 13 to the Department of Commerce and Economic Development. 14 (c) Selling or giving tobacco to a minor is a violation and upon conviction is
01 punishable by a fine of not less than $300. 02 * Sec. 2. AS 11.76.105 is repealed and reenacted to read: 03 Sec. 11.76.105. Possession, purchase, or use of false identification to obtain 04 tobacco by a minor. (a) A person under 19 years of age may not knowingly 05 (1) possess or attempt to purchase a tobacco product in this state; or 06 (2) present false or fraudulent proof of age for the purpose of 07 purchasing a tobacco product. 08 (b) A person who violates this section is, upon conviction, guilty of a 09 violation. 10 * Sec. 3. AS 11.76.107 is repealed and reenacted to read: 11 Sec. 11.76.107. Restrictions on sale of tobacco and tobacco products. (a) 12 A person may not sell or distribute a tobacco product unless 13 (1) the 14 (A) person also holds a license endorsement issued under 15 AS 43.70.075; 16 (B) sale or distribution occurs on the retail premises; and 17 (C) person purchasing or receiving the tobacco product provides 18 proof of age; 19 (2) the sale or distribution is a wholesale transaction by a person 20 licensed as a manufacturer or distributor under AS 43.50.010; or 21 (3) the sale or distribution is by mail order. 22 (b) Except as provided in this subsection, a person may not sell or distribute 23 a tobacco product by vending machine. The sale or distribution of a tobacco product 24 through a vending machine is permitted if the vending machine is located in 25 (1) a factory, business, office, or other place that is not open to the 26 public; 27 (2) a place that is open to the public but to which a person under the 28 age of 19 years is denied access; 29 (3) a place where alcoholic beverages are sold for consumption on the 30 licensed premises, but only if the vending machine is 31 (A) under the continuous supervision of the owner or lessee of
01 the licensed premises or an employee of the owner or lessee; and 02 (B) inaccessible to the public when the licensed premises is 03 closed; 04 (4) other places, but only if the vending machine (A) is under the 05 continuous supervision of the owner or lessee of the premises or an employee of the 06 owner or lessee; (B) can be operated only by the activation of an electronic switch by 07 the owner or lessee of the premises or an employee of the owner or lessee before each 08 purchase; and (C) is inaccessible to the public when the licensed premises is closed; 09 in any place where supervision of a vending machine, or activation of an electronic 10 switch, is required by this paragraph, the person responsible for that supervision or the 11 activation of the switch shall demand proof of age from a prospective purchaser if the 12 person has reason to believe that the prospective purchaser is under 27 years of age. 13 (c) A person engaged in the sale or distribution of a tobacco product shall 14 demand proof of age from a prospective purchaser or recipient if the person has reason 15 to believe that the prospective purchaser or recipient is under 27 years of age. A 16 prosecution for violation of this subsection may not be brought unless a prosecution 17 is also brought for violation of AS 11.76.100. 18 (d) A person engaged in the retail business of selling a tobacco product shall 19 notify each individual employed by that person as a retail sales clerk that state law (1) 20 prohibits the sale or distribution of a tobacco product to any person under 19 years of 21 age and the purchase or receipt of a tobacco product by any person under 19 years of 22 age; and (2) requires that proof of age be demanded from a prospective purchaser or 23 recipient if the person engaged in sale or distribution of the tobacco product has reason 24 to believe that the prospective purchaser or recipient is under 27 years of age. This 25 notice shall be provided before the individual commences work as a retail sales clerk. 26 The individual shall signify receipt of the notice required by this subsection by signing 27 a form stating as follows: 28 "I understand that state law prohibits the sale or distribution of 29 a tobacco product to persons under 19 years of age and requires 30 that proof of age be demanded from a prospective purchaser or 31 recipient if I have reason to believe that the prospective
01 purchaser or recipient is under 27 years of age. I promise, as a 02 condition of my employment, to observe this law." 03 Each form signed by an individual shall indicate the date of signature. The employer 04 shall retain the form signed by an individual employed as a retail sales clerk until 120 05 days after the individual has left the employer's employ. 06 (e) The court shall forward to the Department of Commerce and Economic 07 Development a record of each person convicted under this section. 08 (f) A person who violates this section is guilty of a violation and upon 09 conviction shall be punished by a fine of $100 for a first offense within a two-year 10 period, $500 for a second offense within a two-year period, and suspension of the 11 license endorsement required under AS 43.70.075 for a period of not more than one 12 year for a third or subsequent violation within a two-year period. 13 * Sec. 4. AS 11.76 is amended by adding a new section to read: 14 Sec. 11.76.109. Definitions for AS 11.76.100 - 11.76.109. In AS 11.76.100 - 15 11.76.109, unless the context requires otherwise, 16 (1) "person" has the meaning given in AS 11.81.900; 17 (2) "proof of age" means a driver's license or other documentary or 18 written evidence that is made of or encased in plastic and contains a photograph of the 19 holder and a statement of age or date of birth that establishes that the person is 19 20 years of age or older; 21 (3) "tobacco product" means a product that contains tobacco and is 22 intended for human consumption; 23 (4) "vending machine" means a mechanical, electric, or electronic self- 24 service device that, upon insertion of money, tokens, or another form of payment, 25 automatically dispenses a tobacco product. 26 * Sec. 5. AS 28.15 is amended by adding new sections to read: 27 Sec. 28.15.195. Administrative revocation of minor's license to drive for 28 tobacco offense. (a) If a peace officer has probable cause to believe that a person 29 who is not yet 19 years of age has possessed or attempted to purchase a tobacco 30 product or presented false proof of age for the purpose of purchasing a tobacco product 31 in violation of AS 11.76.105, the peace officer shall read a notice and deliver a copy
01 to the person. The notice must advise that 02 (1) the department intends to revoke the person's driver's license or 03 permit, privilege to drive, or privilege to obtain a license or permit; 04 (2) the person has the right to administrative review of the revocation; 05 (3) if the person has a driver's license or permit, the notice itself is a 06 temporary driver's license or permit that expires seven days after it is delivered to the 07 person; 08 (4) revocation of the person's driver's license or permit, privilege to 09 drive, or privilege to obtain a license or permit, takes effect seven days after delivery 10 of the notice to the person unless the person, within seven days, requests an 11 administrative review. 12 (b) After reading the notice under (a) of this section, the peace officer shall 13 seize the person's driver's license or permit if it is in the person's possession and shall 14 deliver it to the department with a sworn report describing the circumstances under 15 which it was seized. 16 (c) Unless the person has requested an administrative review, the department 17 shall revoke the person's driver's license or permit, privilege to drive, or privilege to 18 obtain a license or permit, effective seven days after delivery to the person of the 19 notice required under (a) of this section, upon receipt of a sworn report of a peace 20 officer 21 (1) that the officer had probable cause to believe that the person is not 22 yet 19 years of age and has possessed or attempted to purchase a tobacco product or 23 presented false proof of age for the purpose of purchasing a tobacco product in 24 violation of AS 11.76.105; 25 (2) that the peace officer has cited the person or arrested the person for 26 a violation of AS 11.76.105; 27 (3) that notice under (a) of this section was provided to the person; and 28 (4) describing the circumstances surrounding the violation of the 29 tobacco sales or proof of age provisions of AS 11.76.105. 30 (d) The department shall impose the revocation required under this section for 31 a period of
01 (1) one year for a first violation; and 02 (2) two years for a second or subsequent violation. 03 (e) A revocation imposed under this section shall be consecutive to a 04 revocation imposed under another provision of law, except that a revocation imposed 05 under this section shall be concurrent with a revocation imposed under AS 28.15.183, 06 28.15.185, or 28.15.187 that is based on the same incident. A department hearing 07 officer may grant limited license privileges in accordance with the standards set out 08 in AS 28.15.201 to a person whose driver's license, permit, or privilege was revoked 09 under this section. 10 (f) In this section, "peace officer" does not include a person employed by the 11 Department of Corrections. 12 Sec. 28.15.197. Administrative review of revocation of license for tobacco 13 offense. (a) A person who has received a notice under AS 28.15.195(a) may make 14 a written request for administrative review of the department's action. If the person's 15 driver's license has not been previously surrendered to the department, it shall be 16 surrendered to the department at the time the request for review is made. 17 (b) A request for review of the department's revocation under AS 28.15.195 18 shall be made within seven days after receipt of the notice under AS 28.15.195, or the 19 right to review is waived and the action of the department under AS 28.15.195(c) is 20 final. If a written request for a review is made after expiration of the seven-day 21 period, and if it is accompanied by the applicant's verified statement explaining the 22 failure to make a timely request for a review, the department shall receive and consider 23 the request. If the department finds that the person was unable to make a timely 24 request because of lack of actual notice of the revocation or because of factors of 25 physical incapacity such as hospitalization or incarceration, the department shall waive 26 the period of limitation, reopen the matter, and grant the review request. 27 (c) Upon receipt of a request for review, if it appears that the person holds a 28 valid driver's license and that the driver's license has been surrendered, the department 29 shall issue a temporary driver's permit that is valid until the scheduled date for the 30 review. A person who has requested a review under this section may request, and the 31 department may grant for good cause, a delay in the date of the hearing. If necessary,
01 the department may issue additional temporary permits to stay the effective date of its 02 action under AS 28.15.195(c) until the final order after the review is issued. 03 (d) A person who has requested a hearing under this section and who fails to 04 appear at the hearing, for reasons other than lack of actual notice of the hearing or 05 physical incapacity such as hospitalization or incarceration, waives the right to a 06 hearing. The determination of the department that is based upon the officer's report 07 becomes final. 08 (e) The hearing under this section must be held telephonically unless the 09 person requesting the hearing requests in writing that the hearing not be held 10 telephonically or the hearing officer determines that an in-person hearing is necessary 11 as provided under AS 28.05.141(b). 12 (f) A review under this section shall be held before a hearing officer 13 designated by the commissioner. The hearing officer shall have authority to 14 (1) administer oaths and affirmations; 15 (2) examine witnesses and take testimony; 16 (3) receive relevant evidence; 17 (4) issue subpoenas, take depositions, or cause depositions or 18 interrogatories to be taken; 19 (5) regulate the course and conduct of the hearing; 20 (6) make a final ruling on the issue. 21 (g) The hearing for review of a revocation by the department under 22 AS 28.15.195 shall be limited to the issue of whether the person possessed or 23 attempted to purchase a tobacco product or presented false proof of age as prohibited 24 by AS 11.76.105. 25 (h) The determination of the hearing officer may be based upon the sworn 26 report of a peace officer if the sworn report is supported by probable cause based on 27 personal observations as required under AS 28.15.195(a). The peace officer need not 28 be present at the hearing unless either the person requesting the hearing or the hearing 29 officer requests in writing before the hearing that the officer be present. If in the 30 course of the hearing it becomes apparent that the testimony of the peace officer is 31 necessary to enable the hearing officer to resolve disputed issues of fact, the hearing
01 shall be continued to allow the attendance of the peace officer. 02 (i) Upon written request of the person requesting the hearing, the hearing 03 officer shall stay the hearing until the conclusion of related criminal proceedings. If 04 the person requesting the hearing does not request a stay, testimony given by the 05 person at the hearing is admissible against the person in a criminal trial. 06 (j) If the issue set out in (g) of this section is determined in the affirmative by 07 a preponderance of the evidence, the hearing officer shall sustain the action of the 08 department. If the issue is determined in the negative, the department's revocation 09 action shall be rescinded. 10 (k) If the action of the department in revoking a nonresident's privilege to 11 drive a motor vehicle is not administratively contested by the nonresident driver or if 12 the departmental action is sustained by the hearing officer, the department shall give 13 written notice of action taken to the motor vehicle administrator of the state of the 14 person's residence and to any state in which that person has a driver's license. 15 (l) Within 30 days of the issuance of the final determination of the department, 16 a person aggrieved by the determination may file an appeal in superior court for 17 judicial review of the hearing officer's determination. 18 (m) The filing of an appeal under (l) of this section or a petition for review 19 does not automatically stay the department's order or revocation. The court may grant 20 a stay of the order or revocation under the applicable rules of court, after a motion and 21 hearing, and upon a finding that there is a reasonable probability that the petitioner 22 will prevail on the merits and that the petitioner will suffer irreparable harm if the 23 order is not stayed. 24 * Sec. 6. AS 43.50.070 is amended to read: 25 Sec. 43.50.070. Revocation or suspension of licenses. The department may 26 suspend or revoke a license issued under AS 43.50.010 - 43.50.180 (1) for a criminally 27 negligent violation of AS 11.76.100 [, 11.76.107] or a violation of AS 43.50.010 - 28 43.50.180 or a regulation of the department adopted under AS 43.50.010 - 43.50.180; 29 (2) if a licensee ceases to act in the capacity for which the license was issued; or (3) 30 if a manufacturer, distributor, or wholesale distributor negligently sells tobacco or 31 products containing tobacco to a nonlicensed retailer or a retailer whose license
01 endorsement under AS 43.70.075 has been suspended. The department may suspend 02 or revoke a license issued under AS 43.50.010 - 43.50.180 for a period of not more 03 than one year for a criminally negligent violation of AS 11.76.107. A person whose 04 license is suspended or revoked may not sell cigarettes or permit cigarettes to be sold 05 during the period of the suspension or revocation on the premises occupied or 06 controlled by that person. A disciplinary proceeding or action is not barred or abated 07 by the expiration, transfer, surrender, renewal, or extension of a license issued under 08 AS 43.50.010 - 43.50.180. The department shall comply with the provisions of 09 AS 44.62 ( [THE] Administrative Procedure Act [(AS 44.62]). 10 * Sec. 7. AS 43.70.075(b) is amended to read: 11 (b) The department, upon payment of a fee of $100 [$25], shall issue a 12 business license endorsement to a person who applies for a business license under this 13 chapter, and may renew the endorsement issued under this subsection for a fee of $100 14 [$25]. The endorsement expires at the same time as the license to which it attaches. 15 * Sec. 8. AS 43.70.075(d) is amended to read: 16 (d) If a person who holds an endorsement issued under this section, or an 17 agent or an employee of a person who holds an endorsement issued under this section 18 acting within the scope of the agency or employment, has been convicted of violating 19 AS 11.76.100 or 11.76.107, or violates a provision of this section or a regulation 20 implementing this section adopted under AS 43.70.090, the department may suspend 21 the endorsement for a period of not more than 22 (1) 45 days; [OR] 23 (2) 90 days, if within the past 24 months the person has been 24 previously convicted of violating AS 11.76.100 or 11.76.107, or a provision of this 25 section or a regulation implementing this section adopted under AS 43.70.090; or 26 (3) one year if within the past 24 months the person has been 27 previously convicted two or more times of violating AS 11.76.100 or 11.76.107 or 28 a provision of this section or a regulation implementing this section adopted under 29 AS 43.70.090. 30 * Sec. 9. AS 47.12.030(b) is amended to read: 31 (b) When a minor is accused of violating a statute specified in this subsection,
01 other than a statute the violation of which is a felony, this chapter and the Alaska 02 Delinquency Rules do not apply and the minor accused of the offense shall be charged, 03 prosecuted, and sentenced in the district court in the same manner as an adult; if a 04 minor is charged, prosecuted, and sentenced for an offense under this subsection, the 05 minor's parent, guardian, or legal custodian shall be present at all proceedings; the 06 provisions of this subsection apply when a minor is accused of violating 07 (1) a traffic statute or regulation, or a traffic ordinance or regulation of 08 a municipality; 09 (2) AS 11.76.105, relating to the possession or purchase of tobacco, 10 or use of false proof of age for the purpose of purchasing tobacco by a person 11 under 19 years of age; 12 (3) a fish and game statute or regulation under AS 16; 13 (4) a parks and recreational facilities statute or regulation under 14 AS 41.21; and 15 (5) AS 04.16.050, relating to possession, control, or consumption of 16 alcohol. 17 * Sec. 10. AS 28.15.197(m), enacted in sec. 5 of this Act, has the effect of amending Rules 18 603 and 611(d), Alaska Rules of Appellate Procedure, by prohibiting an automatic stay of the 19 administrative revocation of a driver's license pending appeal or petition for review and by 20 limiting the power of the court to stay the administrative revocation of a driver's license. 21 * Sec. 11. TRANSITIONAL NOTICE PROVISION. Within 30 days after the effective 22 date of this Act, the employee notice required under AS 11.76.107(d), enacted in sec. 3 of this 23 Act, shall be given to employees engaged in the retail business of selling a tobacco product 24 on the day before the effective date of this Act. 25 * Sec. 12. This Act takes effect July 1, 1997.