HB 276: "An Act relating to business license endorsements for tobacco products, to holders of business license endorsements for tobacco products, and to the employees and agents of holders of business license endorsements for tobacco products."
00 HOUSE BILL NO. 276 01 "An Act relating to business license endorsements for tobacco products, to holders of 02 business license endorsements for tobacco products, and to the employees and agents of 03 holders of business license endorsements for tobacco products." 04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 05 * Section 1. AS 43.70.075(d) is amended to read: 06 (d) If [A PERSON WHO HOLDS AN ENDORSEMENT ISSUED UNDER 07 THIS SECTION, OR] an agent or an employee of a person who holds an endorsement 08 issued under this section is acting within the scope of the agency or employment and 09 [,] has been convicted of violating AS 11.76.100, 11.76.106, or 11.76.107, the 10 department may impose on the agent or employee, in addition to any penalty 11 imposed under AS 11.76.100(f), a civil penalty of [SHALL SUSPEND THE 12 ENDORSEMENT FOR A PERIOD OF] 13 (1) [20 DAYS AND IMPOSE A CIVIL PENALTY OF] $300 if the 14 person has not been previously convicted of violating this section, AS 11.76.100,
01 11.76.106, or 11.76.107 and is not otherwise subject to the penalty [SANCTIONS] 02 described in (2) - (4) of this subsection; 03 (2) [45 DAYS AND IMPOSE A CIVIL PENALTY OF] $500 if, 04 within the 24 months before the date of the department's notice to the agent or 05 employee under (x) [(m)] of this section, the [PERSON, OR AN] agent or employee 06 [OF THE PERSON WHILE ACTING WITHIN THE SCOPE OF THE AGENCY OR 07 EMPLOYMENT OF THE PERSON,] was convicted once of violating this section, 08 AS 11.76.100, 11.76.106, or 11.76.107; 09 (3) [90 DAYS AND IMPOSE A CIVIL PENALTY OF] $1,000 if, 10 within the 24 months before the date of the department's notice to the agent or 11 employee under (x) [(m)] of this section, the [PERSON, OR AN] agent or employee 12 [OF THE PERSON WHILE ACTING WITHIN THE SCOPE OF THE AGENCY OR 13 EMPLOYMENT OF THE PERSON,] was convicted twice of violating this section, 14 AS 11.76.100, 11.76.106, or 11.76.107 [, OR A PROVISION OF THIS SECTION OR 15 A REGULATION IMPLEMENTING THIS SECTION ADOPTED UNDER 16 AS 43.70.090]; or 17 (4) [ONE YEAR AND IMPOSE A CIVIL PENALTY OF] $2,500 if, 18 within the 24 months before the date of the department's notice to the agent or 19 employee under (x) [(m)] of this section, the [PERSON, OR AN] agent or employee 20 [OF THE PERSON WHILE ACTING WITHIN THE SCOPE OF THE AGENCY OR 21 EMPLOYMENT OF THE PERSON,] was convicted three or more times [THAN 22 TWICE] of violating this section, AS 11.76.100, 11.76.106, or 11.76.107. 23 * Sec. 2. AS 43.70.075(n) is amended to read: 24 (n) The commissioner may 25 (1) adopt the proposed decision of a hearing officer under this section; 26 (2) remand the matter for further proceedings; or 27 (3) reject the proposed decision, review the record, and issue a 28 decision under the provisions of this section based on the record. 29 * Sec. 3. AS 43.70.075(p) is amended to read: 30 (p) If a person who holds an endorsement issued under this section violates (f) 31 or (t) of this section, the department may impose a civil penalty not to exceed $250 for
01 each day of the violation, but the department may not suspend or revoke a business 02 license endorsement. The total civil penalty imposed under this subsection for each 03 violation may not exceed $5,000. 04 * Sec. 4. AS 43.70.075 is amended by adding new subsections to read: 05 (t) A person who holds a license endorsement issued under this section shall 06 (1) obtain a signed acknowledgment from each of the person's agents 07 and employees who may be in the position of selling tobacco products that 08 (A) the employee or agent understands that it is a violation of 09 state law to sell tobacco products to persons under 19 years of age; and 10 (B) compliance with state law is a condition of employment or 11 agency; and 12 (2) certify that the person has an education, compliance, and 13 disciplinary program in effect to ensure compliance with this section, AS 11.76.100, 14 11.76.106, and 11.76.107. 15 (u) If a person holds a license endorsement issued under this section and if an 16 agent or employee of the person is arrested or given a citation for a violation of 17 AS 11.76.100, 11.76.106, or 11.76.107, the department may impose a sanction on the 18 person under (v) or (w) of this section. To impose the sanction, the department shall 19 initiate a proceeding against the person under (x) of this section. The proceeding is 20 separate from and not related to the proceeding for which the agent or employee is 21 arrested or given a citation. 22 (v) In a proceeding under (u) of this section against a person who holds a 23 license endorsement issued under this section, if the person has a program 24 substantially similar to the program required by (t)(2) of this section in effect on or 25 before the date of the arrest or citation of the agent or employee, the department may 26 not impose a penalty under (p) of this section on the person, and the sanctions that the 27 department may impose on the person in the proceeding are limited to a civil penalty 28 of 29 (1) $750 if the person has not been previously convicted of violating 30 this section, AS 11.76.100, 11.76.106, or 11.76.107 and is not otherwise subject to the 31 sanctions described in (2) - (4) of this subsection;
01 (2) $1,000 if, within the 24 months before the date of the department's 02 notice under (x) of this section, the person was convicted once of violating this 03 section, AS 11.76.100, 11.76.106, or 11.76.107; 04 (3) $2,500 if, within the 24 months before the date of the department's 05 notice under (x) of this section, the person was convicted twice of violating this 06 section, AS 11.76.100, 11.76.106, or 11.76.107; or 07 (4) $3,500 if, within the 24 months before the date of the department's 08 notice under (x) of this section, the person was convicted of three or more times of 09 violating this section, AS 11.76.100, 11.76.106, or 11.76.107. 10 (w) In a proceeding under (u) of this section against a person who holds a 11 license endorsement issued under this section, if the person does not have a program 12 substantially similar to the program required by (t)(2) of this section in effect on or 13 before the date of the arrest or citation of the agent or employee, the department may 14 not impose a penalty under (p) of this section on the person, and the sanctions that the 15 department may impose on the person in the proceeding are limited to a suspension of 16 the person's endorsement for a period of 17 (1) 20 days and a civil penalty of not less than $500 or more than $750 18 if the person has not been previously convicted of violating this section, AS 11.76.100, 19 11.76.106, or 11.76.107 and is not otherwise subject to the sanctions described in (2) - 20 (4) of this subsection; 21 (2) 45 days and a civil penalty of not less than $750 and not more than 22 $1,000 if, within the 24 months before the date of the department's notice under (m) of 23 this section, the person was convicted one time of violating this section, AS 11.76.100, 24 11.76.106, or 11.76.107; 25 (3) 90 days and a civil penalty of not less than $1,500 and not more 26 than $2,500 if, within the 24 months before the date of the department's notice under 27 (m) of this section, the person was convicted two times of violating this section, 28 AS 11.76.100, 11.76.106, or 11.76.107; or 29 (4) one year and a civil penalty of not less than $2,500 and not more 30 than $3,500 if, within the 24 months before the date of the department's notice under 31 (m) of this section, the person was convicted three or more times of violating this
01 section, AS 11.76.100, 11.76.106, or 11.76.107. 02 (x) Notwithstanding (m) of this section, to initiate a proceeding against an 03 agent or employee under (d) of this section or against a person under (u) of this section 04 who holds an endorsement issued under this section, the department shall send the 05 person, agent, or employee a notice by certified mail, return receipt requested, or 06 deliver the notice to the person, agent, or employee. The notice must contain 07 information that informs the person, agent, or employee of the grounds for the 08 proceedings, the amount of any penalty, the length of any suspension sought, and the 09 right of the person, agent, or employee to administrative review before the department. 10 A suspension begins and a penalty is due 30 days after receipt of notice described in 11 this subsection unless the person, agent, or employee delivers a timely written request 12 for administrative review to the department in the manner provided by regulations of 13 the department. If a hearing is requested under this subsection, a hearing officer of the 14 office of administrative hearings (AS 44.64.010) shall determine the issues by using 15 the clear and convincing evidence test and shall, to the extent the regulations of the 16 department do not conflict with regulations adopted under AS 44.64.060, conduct the 17 hearing in the manner provided by the regulations of the department. In a hearing 18 under (u) of this section, the hearing officer may not consider a conviction against an 19 agent or employee for violation of this section, AS 11.76.100, 11.76.106, or 11.76.107 20 arising out of the same transaction that resulted in the initiation of the proceedings 21 under (u) of this section against the person. 22 (y) When making a decision under (u) of this section, the hearing officer shall 23 consider 24 (1) whether the person is in compliance with (t) of this section on or 25 before the date the department initiates a proceeding under (u) of this section; 26 (2) mitigating factors presented by the person; and 27 (3) the scope and extent of the person's education, compliance, and 28 disciplinary program under (t)(2) of this section. 29 (z) A municipality may not adopt an ordinance or other requirement that 30 suspends or revokes an endorsement issued under this section for an act that is 31 substantially similar to the acts prohibited by this section, AS 11.76.100, 11.76.106, or
01 11.76.107. 02 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 03 read: 04 APPLICABILITY. AS 43.70.075(d), as amended by sec. 1 of this Act, 43.70.075(n), 05 as amended by sec. 2 of this Act, 43.70.075(p), as amended by sec. 3 of this Act, and 06 43.70.075(t), 43.70.075(u), 43.70.075(v), 43.70.075(w), 43.70.075(x), and 43.70.075(y), as 07 enacted by sec. 4 of this Act, apply to a proceeding by the department that is pending under 08 AS 43.70.075, as that section reads before the effective date of this Act, as well as to actions 09 that occur on or after the effective date of this Act.