CSSB 209(HSS): "An Act relating to a prohibition on smoking in certain locations; providing for a local option election with respect to smoking in public places; and providing for an effective date."
00 CS FOR SENATE BILL NO. 209(HSS) 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) In a municipality that has not 08 exercised a local option to permit smoking in public places under AS 18.35.361 and 09 except as provided in (b) of this section, smoking is prohibited in the following places: 10 (1) enclosed areas at or within 11 (A) a sports arena, public educational facility, private 12 educational facility, shopping mall, or other enclosed public space; 13 (B) a bus, taxicab, ferry, or other public transportation vehicle; 14 (C) a public transit depot, bus shelter, airport terminal, or other
01 public transportation facility; 02 (D) an office building, common area, office, employee lounge, 03 hotel, motel, restaurant, bar, retail store, or other enclosed area in a place of 04 employment; 05 (E) a room, chamber, place of meeting, or other enclosed place 06 of government or public assembly located on property that is owned or 07 operated by the state, a municipality, or a regional educational attendance area, 08 or by a board, council, commission, committee, authority, or other agency of 09 the state, a municipality, or regional educational attendance area; 10 (F) a building or residence that is used to provide paid child 11 care, whether or not children are present in the building or residence; 12 (G) a health care facility; 13 (H) a vehicle that is a place of employment, except as provided 14 in (b)(4) of this section; 15 (I) a marine vessel operating as a shore-based fisheries business 16 under AS 43.75; 17 (2) at or within 18 (A) an area located at a public or private school or a state or 19 municipal park that is primarily designated as a place for children to play; 20 (B) a seating area for an outdoor arena, stadium, or 21 amphitheater; 22 (C) 50 feet of an entrance to a health care facility; 23 (D) 10 feet of an entrance to a bar or restaurant licensed or 24 permitted to serve alcoholic beverages; or 25 (E) 20 feet of an entrance, open window, or heating or 26 ventilation system air intake vent at a place of employment or other enclosed 27 area at a place where smoking is prohibited under this section. 28 (b) Unless the owner or operator prohibits it, smoking is allowed in the 29 following places: 30 (1) a private club that is not licensed or permitted to serve alcoholic 31 beverages and is not a place of employment, unless the private club is hosting an event
01 that is open to the public; 02 (2) a private residence, unless it is a residence at which the care of 03 children or adults is provided on a fee-for-service basis, a residence in a health care 04 facility, or a residence located within a hotel or motel; 05 (3) a marine vessel, when the vessel is engaged in commercial fishing 06 or sport charter fishing; 07 (4) a vehicle that is a place of employment used exclusively by one 08 employee; 09 (5) a retail tobacco or e-cigarette store; in this paragraph, "retail 10 tobacco or e-cigarette store" 11 (A) means a retail store 12 (i) that sells primarily cigarettes, e-cigarettes, cigars, 13 tobacco and products containing tobacco, and pipes and other smoking 14 or e-cigarette accessories; 15 (ii) in which the sale of other products is incidental; 16 (iii) that derives at least 90 percent of its gross revenue 17 from the sale of cigarettes, e-cigarettes, cigars, tobacco and products 18 containing tobacco, and pipes and other smoking or e-cigarette 19 accessories; and 20 (iv) that is a freestanding building not attached to 21 another business or to a residence; 22 (B) does not include 23 (i) a tobacco or e-cigarette department or section of a 24 business that does not meet the criteria in (A) of this paragraph; 25 (ii) a business that is also a restaurant, a grocery store, 26 or licensed to sell alcoholic beverages or pull-tabs; or 27 (iii) a retail store that is within an indoor public place or 28 a workplace. 29 (c) Nothing in this section authorizes smoking prohibited under another law. 30 Sec. 18.35.331. Obligations of employers, owners, and operators. (a) A 31 person who is in charge of a place or vehicle where smoking is prohibited under
01 AS 18.35.301 shall conspicuously display in the place or vehicle a sign that reads 02 "Smoking Prohibited by Law--Maximum Fine $100" and includes the international 03 symbol for no smoking or, in the alternative, the words "No Puffin" with a pictorial 04 representation of a Horned Puffin or Tufted Puffin holding a burning cigarette 05 enclosed in a red circle crossed with a red bar. 06 (b) A person in charge of a building at which smoking is prohibited within a 07 specific distance from the entrance of the building under AS 18.35.301 shall 08 conspicuously display a sign that reads "Smoking within (number of feet) Feet of 09 Entrance Prohibited by Law--Maximum Fine $100" visible from the outside of each 10 entrance to the building. 11 (c) The owner, operator, manager, or other person who manages a building or 12 other place where smoking is prohibited under AS 18.35.301 may not provide ashtrays 13 or other smoking accessories for use in that building or place. 14 (d) The department shall furnish signs required under this section to a person 15 who requests them with the intention of displaying them. 16 (e) An employer may not permit an employee, customer, or other person to 17 smoke inside an enclosed area at a place of employment. 18 Sec. 18.35.344. Violations and civil penalties. (a) The commissioner shall 19 adopt by regulation procedures for filing, processing, and investigating reports of 20 violations of AS 18.35.301, 18.35.331, and 18.35.357. 21 (b) If, after investigating a report made under this section, the commissioner 22 determines that a violation has occurred, the commissioner may 23 (1) file a civil complaint in the district court to enforce the provisions 24 of AS 18.35.301, 18.35.331, and 18.35.357; or 25 (2) issue a citation under AS 18.35.345(b). 26 (c) A person who violates AS 18.35.301 and against whom the commissioner 27 has filed a civil complaint under this section is punishable by a civil penalty of not 28 more than $100. 29 (d) A person who fails to comply with a duty imposed on that person by 30 AS 18.35.331 and against whom the commissioner has filed a civil complaint under 31 this section is punishable by a civil penalty not to exceed
01 (1) $100 for a first failure to comply; 02 (2) $200 for a second failure to comply that occurs within 24 months 03 after the date the person was fined for a first failure to comply; 04 (3) $500 for each failure to comply that occurs within 24 months after 05 the date the person was fined for a second failure to comply. 06 (e) A person who violates AS 18.35.357 and against whom the commissioner 07 has filed a civil complaint under this section is punishable by a civil penalty not to 08 exceed $1,000. 09 (f) The department may provide for the payment of a civil penalty under this 10 section by mail. 11 Sec. 18.35.345. Citations; fines. (a) A peace officer may issue a citation for a 12 violation of AS 18.35.301 committed in the officer's presence or for a violation of 13 AS 18.35.331 or 18.35.357. The provisions of AS 12.25.175 - 12.25.230 apply to the 14 issuance of a citation under this subsection. 15 (b) An employee of the department designated by the commissioner to enforce 16 the provisions of AS 18.35.301, 18.35.331, or 18.35.357 may issue a citation for a 17 violation of AS 18.35.301, 18.35.331, or 18.35.357 regardless of whether the violation 18 was committed in the employee's presence. A citation issued under this subsection 19 shall be in the same form and shall be processed in the same manner as a citation 20 issued by a peace officer under (a) of this section. An employee of the department may 21 not arrest a person for a violation of AS 18.35.301, 18.35.331, or 18.35.357. 22 (c) A person who violates AS 18.35.301 as alleged in a citation under (a) or 23 (b) of this section is guilty of a violation, as defined in AS 11.81.900, and punishable 24 by a fine not to exceed $100 for each violation. 25 (d) A person who fails to comply with a duty imposed on that person by 26 AS 18.35.331 as alleged in a citation under (a) or (b) of this section is guilty of a 27 violation as defined in AS 11.81.900(b) and punishable by a fine 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 under this section 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 under this section for a second failure to comply. 02 (e) A person who violates AS 18.35.357 as alleged in a citation under (a) or 03 (b) of this section is guilty of a violation, as defined in AS 11.81.900, and punishable 04 by a fine not to exceed $1,000 for each violation. 05 (f) The supreme court shall establish a schedule of bail amounts for violations 06 of AS 18.35.301, 18.35.331, and 18.35.357, but in no event may the bail amount 07 exceed the maximum fine that may be imposed for the violation under (c) - (e) of this 08 section. The bail amount for a violation must appear on the citation. 09 (g) If a person cited for a violation under this section does not contest the 10 citation, the person may, on or before the 30th day after the date of the citation, mail 11 or personally deliver to the clerk of the court in which the citation is filed 12 (1) the amount of bail indicated on the citation for that violation; and 13 (2) a copy of the citation indicating that the right to an appearance is 14 waived, a plea of no contest is entered, and the bail is forfeited. 15 (h) When bail has been forfeited under (g) of this section, a judgment of 16 conviction shall be entered. Forfeiture of bail is a complete satisfaction for the 17 violation. The clerk of the court accepting the bail shall provide the violator with a 18 receipt stating that fact if requested. 19 (i) A person cited under this section is guilty of failure to obey a citation under 20 AS 12.25.230 if the person fails to pay the bail amount established under (f) of this 21 section or fails to appear in court as required. 22 Sec. 18.35.346. Injunctions. The commissioner or another affected party may 23 bring a civil action in the superior court to enjoin a violation of AS 18.35.301, 24 18.35.331, or 18.35.357. 25 Sec. 18.35.351. Powers and duties of the commissioner. (a) The 26 commissioner shall 27 (1) administer and enforce the requirements of AS 18.35.301 - 28 18.35.366; 29 (2) adopt regulations under AS 44.62 (Administrative Procedure Act) 30 necessary to carry out the duties under this section. 31 (b) In addition to other powers granted the commissioner under AS 18.35.301
01 - 18.35.366, the commissioner may delegate to another agency the authority to 02 implement and enforce one or more provisions of AS 18.35.301 - 18.35.366. 03 (c) Nothing in this section limits the authority of a peace officer to enforce 04 law. 05 Sec. 18.35.356. Public education. (a) The commissioner shall ensure 06 employers, property owners, property operators, and other members of the public are 07 provided ongoing access to 08 (1) a program of education regarding the requirements in AS 18.35.301 09 - 18.35.366; 10 (2) an electronically published printable brochure that summarizes the 11 requirements in AS 18.35.301 - 18.35.366. 12 (b) The program of education under (a) of this section may be provided in 13 combination with the comprehensive smoking education, tobacco use prevention, and 14 tobacco control program established in AS 44.29.020(a)(14). 15 Sec. 18.35.357. Nonretaliation. (a) An employer may not discharge, refuse to 16 hire, or in any other manner retaliate against an employee or applicant for employment 17 because the employee or applicant cooperates with or initiates enforcement of a 18 requirement in AS 18.35.301 - 18.35.366. 19 (b) The owner or operator of a vehicle or other place that is subject to a 20 requirement in AS 18.35.301 - 18.35.366 may not retaliate against a customer or other 21 member of the public for cooperating with or initiating enforcement of a requirement 22 in AS 18.35.301 - 18.35.366. 23 Sec. 18.35.359. Conflicts with local requirements. Nothing in AS 18.35.301 24 - 18.35.366 prohibits a municipality adopting and enforcing a law that establishes 25 (1) additional prohibitions on smoking; or 26 (2) additional duties for employers, owners, operators, and other 27 persons who are subject to the requirements of AS 18.35.331 related to smoking. 28 Sec. 18.35.361. Local option to permit smoking in public places. (a) The 29 following question, appearing alone, may be placed before the voters of a municipality 30 in accordance with AS 18.35.363: "Shall (name of municipality) exercise its option 31 not to comply with AS 18.35.301 - 18.35.346, relating to smoking in certain public
01 places? (yes or no)." 02 (b) If a majority of the voters vote "yes" on the question set out in (a) of this 03 section, AS 18.35.301 - 18.35.346 do not apply within the boundaries of the 04 municipality. 05 Sec. 18.35.362. Procedure for local option elections. (a) The local governing 06 body of a municipality shall, whenever a number of registered voters equal to at least 07 10 percent of the number of votes cast at the last regular municipal election petition 08 the local governing body to do so, place on a separate ballot at the next regular 09 election or at a special election the question set out in AS 18.35.361(a) that is the 10 subject of the petition. The local governing body shall conduct the election in 11 accordance with the election ordinance of the municipality. 12 (b) Notwithstanding any other provision of law, an election under (a) of this 13 section to reverse the results imposed under AS 18.35.361 may not be conducted more 14 than once every 12 months. 15 (c) If a majority of the persons voting on the question vote to 16 (1) adopt the option to allow smoking in public places, the option is 17 effective the first day of the month following the certification of the results of the 18 election; 19 (2) remove the option to permit smoking in public places, the option is 20 repealed effective the first day of the month following certification of the results of the 21 election. 22 (d) AS 29.26.110 - 29.26.160 apply to a petition under (a) of this section in a 23 general law municipality except the 24 (1) number of required signatures is determined under (a) of this 25 section rather than under AS 29.26.130; 26 (2) application filed under AS 29.26.110 must contain the question set 27 out in AS 18.35.361 rather than containing an ordinance or resolution; 28 (3) petition must contain the question set out in AS 18.35.361 rather 29 than the material required under AS 29.26.120(a)(1) and (2). 30 Sec. 18.35.363. Property owners may impose restrictions. Notwithstanding 31 AS 18.35.361 and 18.35.362, an owner of property, including a local, state, or federal
01 government agency, may limit or prohibit smoking on the owner's property. 02 Sec. 18.35.366. Definitions. In AS 18.35.301 - 18.35.366, 03 (1) "business" means a for-profit or nonprofit sole proprietorship, 04 partnership, joint venture, corporation, professional corporation, private club, retail 05 seller of goods or services, or other business entity; 06 (2) "commissioner" means the commissioner of health and social 07 services or the commissioner's designee; 08 (3) "department" means the Department of Health and Social Services; 09 (4) "e-cigarette" means an electronic device that uses a heating 10 element, battery, or electronic circuit to issue a vapor for inhalation in a manner that 11 simulates smoking a lighted or heated cigar, cigarette, or pipe, or other lighted or 12 heated tobacco or plant product intended for inhalation; 13 (5) "employee" means a person who is employed by a business for 14 compensation or works for a business as a volunteer without compensation; 15 (6) "employer" means the state, a municipality, a regional educational 16 attendance area, and a person or a business with one or more employees; 17 (7) "enclosed area" means space between a floor and a ceiling that is 18 bounded on two or more sides by a combination of walls, doorways, windows, or 19 other physical barriers that may be open, partially open, closed, retractable, temporary, 20 or permanent; 21 (8) "health care facility" means a private, municipal, or state hospital; 22 independent diagnostic testing facility; primary care outpatient facility; skilled nursing 23 facility; kidney disease treatment center, including freestanding hemodialysis units; 24 intermediate care facility; ambulatory surgical facility; Alaska Pioneers' Home or 25 Alaska Veterans' Home administered by the Department of Health and Social Services 26 under AS 47.55; long-term care facility; psychiatric hospital; residential psychiatric 27 treatment center, as defined in AS 18.07.111 or AS 47.32.900, and other facilities, 28 places of employment or offices operated for use by doctors, nurses, surgeons, 29 chiropractors, physical therapists, physicians, psychiatrists, or dentists or other 30 professional health care providers to provide health care; 31 (9) "place of employment" means work areas, private offices, hotel and
01 motel rooms, employee lounges, restrooms, conference rooms, classrooms, cafeterias, 02 hallways, vehicles, and other employee work areas that are under the control of an 03 employer; 04 (10) "private club" means a building or portion of a building used only 05 for a recreational, fraternal, social, patriotic, political, benevolent, or athletic purpose 06 by one organization that has been granted an exemption from the payment of federal 07 income tax as a club under 26 U.S.C. 501 (Internal Revenue Code); 08 (11) "public place" means an area to which the public is invited or into 09 which the public is permitted, including but not limited to, educational facilities, 10 entertainment venues, food and beverage service establishments, offices, retail stores, 11 and transportation facilities and vehicles accessible to the public; and 12 (12) "smoking" means using or operating an e-cigarette or other oral 13 smoking device or inhaling, exhaling, or burning, a lighted or heated cigar, cigarette, 14 or pipe or other lighted or heated tobacco or plant product intended for inhalation. 15 * Sec. 2. AS 29.10.200 is amended by adding a new paragraph to read: 16 (63) AS 29.35.082 (smoking). 17 * Sec. 3. AS 29.35 is amended by adding a new section to read: 18 Sec. 29.35.082. Smoking. (a) A municipality may regulate smoking to the 19 extent permitted by AS 18.35.359 - 18.35.363. 20 (b) This section applies to home rule and general law municipalities. 21 * Sec. 4. AS 18.35.300, 18.35.305, 18.35.310, 18.35.320, 18.35.330, 18.35.340, 18.35.341, 22 18.35.342, 18.35.343, 18.35.350, 18.35.355, and 18.35.365 are repealed. 23 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 24 read: 25 APPLICABILITY. AS 18.35.301 - 18.35.366, added by sec. 1 of this Act, apply to 26 violations or failures to comply that occur on or after the effective date of sec. 1 of this Act. 27 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 28 read: 29 TRANSITION; REGULATIONS. The Department of Health and Social Services may 30 adopt regulations necessary to implement AS 18.35.301 - 18.35.366, added by sec. 1 of this 31 Act. The regulations take effect under AS 44.62 (Administrative Procedure Act), but not
01 before the effective date of sec. 1 of this Act. 02 * Sec. 7. Section 6 of this Act takes effect immediately under AS 01.10.070(c). 03 * Sec. 8. AS 18.35.361 and 18.35.362, enacted by sec. 1 of this Act, take effect October 1, 04 2016. 05 * Sec. 9. Except as provided in secs. 7 and 8 of this Act, this Act takes effect October 1, 06 2014.