CSSB 15(L&C): "An Act relating to possession of an electronic smoking product or a product containing nicotine by a minor and to selling or giving a product containing nicotine or an electronic smoking product to a minor; relating to business license endorsements to sell cigarettes, cigars, tobacco, products containing tobacco, electronic smoking products, or products containing nicotine; and relating to citations for certain offenses concerning tobacco, products containing nicotine, or electronic smoking products."
00 CS FOR SENATE BILL NO. 15(L&C) 01 "An Act relating to possession of an electronic smoking product or a product containing 02 nicotine by a minor and to selling or giving a product containing nicotine or an 03 electronic smoking product to a minor; relating to business license endorsements to sell 04 cigarettes, cigars, tobacco, products containing tobacco, electronic smoking products, or 05 products containing nicotine; and relating to citations for certain offenses concerning 06 tobacco, products containing nicotine, or electronic smoking products." 07 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 08 * Section 1. AS 11.76.105 is amended to read: 09 Sec. 11.76.105. Possession of tobacco, electronic smoking products, or 10 products containing nicotine by a minor. (a) A person under 19 years of age may 11 not knowingly possess a cigarette, a cigar, tobacco, [OR] a product containing 12 tobacco, an electronic smoking product, or a product containing nicotine in this 13 state. This subsection does not apply to a person who is a prisoner at an adult
01 correctional facility. 02 (b) Possession of tobacco, an electronic smoking product, or a product 03 containing nicotine by a minor is a violation. 04 * Sec. 2. AS 11.76.105 is amended by adding a new subsection to read: 05 (c) In a prosecution under (a) of this section for possession of an electronic 06 smoking product or a product containing nicotine, it is an affirmative defense that the 07 electronic smoking product or product containing nicotine possessed by the person 08 under 19 years of age was intended or expected to be consumed without being 09 combusted, and the electronic smoking product or product containing nicotine 10 (1) has been approved by the United States Food and Drug 11 Administration for sale as a tobacco use cessation or harm reduction product or for 12 other medical purposes; 13 (2) was being marketed and sold for the approved purposes; and 14 (3) was 15 (A) prescribed by a health care professional; 16 (B) given to the person by the person's parent or guardian; 17 (C) provided by a state-approved tobacco cessation program 18 administered by the Department of Health and Social Services; or 19 (D) provided by a pharmacist to a person 18 years of age or 20 older without a prescription. 21 * Sec. 3. AS 11.76.106(a) is amended to read: 22 (a) Except as provided under (b) of this section, a person may not sell 23 cigarettes, cigars, tobacco, products [OR A PRODUCT] containing tobacco, 24 electronic smoking products, or products containing nicotine unless the sale 25 occurs in a manner that allows only the sales clerk to control access to the cigarettes, 26 cigars, tobacco, products [OR PRODUCT] containing tobacco, electronic smoking 27 products, or products containing nicotine. 28 * Sec. 4. AS 11.76.106(b) is amended to read: 29 (b) Subsection (a) does not apply if the sale 30 (1) is by vending machine as provided under AS 11.76.100(b) or 31 11.76.109(f);
01 (2) is a wholesale transaction, the person is licensed as a manufacturer 02 or distributor under AS 43.50.010, and the sale occurs on premises where no retail 03 transactions occur; or 04 (3) is by a retailer who sells primarily cigarettes, cigars, tobacco, 05 products [OR A PRODUCT] containing tobacco, electronic smoking products, or 06 products containing nicotine and who restricts access to the premises to only those 07 individuals who are 19 years of age or older. 08 * Sec. 5. AS 11.76.107(a) is amended to read: 09 (a) A person commits the offense of failure to supervise a [CIGARETTE] 10 vending machine if the person owns premises licensed as a beverage dispensary under 11 AS 04.11.090 or licensed as a club under AS 04.11.110 or licensed as a package store 12 under AS 04.11.150 and with criminal negligence fails to have an employee supervise 13 a vending machine on those premises that dispenses cigarettes, cigars, tobacco, [OR] 14 products containing tobacco, electronic smoking products, or products containing 15 nicotine as required by AS 11.76.100(b)(1)(B) and 11.76.109(f)(1)(B). 16 * Sec. 6. AS 11.76.109(a) is amended to read: 17 (a) A person commits the offense of selling or giving an electronic smoking 18 product or a product containing nicotine to a minor if the person 19 (1) negligently sells an electronic smoking product or a product 20 containing nicotine to a person under 19 years of age; [OR] 21 (2) is 19 years of age or older and negligently exchanges or gives an 22 electronic smoking product or a product containing nicotine to a person under 19 23 years of age; 24 (3) maintains a vending machine that dispenses electronic smoking 25 products or products containing nicotine; or 26 (4) holds a business license endorsement under AS 43.70.075 and 27 allows a person under 19 years of age to sell an electronic smoking product or a 28 product containing nicotine. 29 * Sec. 7. AS 11.76.109(b) is amended to read: 30 (b) The provisions of (a) of this section do not apply to the sale, exchange, or 31 gift to a person under 19 years of age of an electronic smoking product or a product
01 containing nicotine that is intended or expected to be consumed without being 02 combusted if the electronic smoking product or product containing nicotine 03 (1) has been approved by the United States Food and Drug 04 Administration for sale as a tobacco use cessation or harm reduction product or for 05 other medical purposes; 06 (2) is being marketed and sold solely for the approved purposes; and 07 (3) is 08 (A) prescribed by a health care professional; 09 (B) given to a person by the person's parent or legal guardian; 10 (C) provided by a state-approved tobacco cessation program 11 administered by the Department of Health and Social Services; or 12 (D) provided by a pharmacist to a person 18 years of age or 13 older without a prescription. 14 * Sec. 8. AS 11.76.109(e) is amended to read: 15 (e) Selling or giving an electronic smoking product or a product containing 16 nicotine to a minor is a violation and, upon conviction, is punishable by a fine of not 17 less than $300. 18 * Sec. 9. AS 11.76.109 is amended by adding new subsections to read: 19 (f) Notwithstanding (a)(3) of this section, a person who maintains a vending 20 machine is not in violation of (a)(3) of this section if the vending machine is located 21 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 22 licensed as a club under AS 04.11.110, or licensed as a package store under 23 AS 04.11.150, and is located 24 (A) as far as practicable from the primary entrance; and 25 (B) in a place that is directly and continually supervised by a 26 person employed on the licensed premises during the hours the vending 27 machine is accessible to the public; or 28 (2) in an employee break room or other controlled area of a private 29 work place that is not generally considered a public place and the room or area 30 contains a posted warning sign at least 11 inches by 8.5 inches indicating that 31 possession of electronic smoking products or products containing nicotine by a person
01 under 19 years of age without a prescription is prohibited under AS 11.76.109. 02 (g) The court shall forward a record of each person convicted under this 03 section who holds a business license endorsement under AS 43.70.075, or who is an 04 employee or agent of a person who holds a business license endorsement under 05 AS 43.70.075, to the Department of Commerce, Community, and Economic 06 Development. 07 * Sec. 10. AS 11.81.900(b) is amended by adding a new paragraph to read: 08 (67) "electronic smoking product" means 09 (A) an electronic cigarette, electronic cigar, electronic cigarillo, 10 electronic pipe, or other similar device that is used to aerosolize and deliver 11 nicotine, a synthetic of nicotine, or another substance that may cause an 12 adverse effect on the person inhaling from the device; and 13 (B) a component, solution, alternative tobacco product, e- 14 liquid, e-juice, vapor product, flavoring, or other related product of an 15 electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, or 16 other similar device of any size or shape used for, or to assist with, 17 aerosolizing and inhaling chemical substances that may cause an adverse effect 18 on human health. 19 * Sec. 11. AS 43.50.070(a) is amended to read: 20 (a) The department may suspend, revoke, or refuse to renew a license issued 21 under this chapter (1) for a negligent violation of AS 11.76.100, 11.76.106, 11.76.107, 22 11.76.109, or a violation of this chapter or a regulation of the department adopted 23 under this chapter; (2) if a licensee ceases to act in the capacity for which the license 24 was issued; or (3) if a licensee negligently sells tobacco or products containing 25 tobacco to a person who is required to, but does not, hold a license endorsement under 26 AS 43.70.075 or whose license endorsement under AS 43.70.075 has been suspended. 27 A person whose license is suspended or revoked may not sell cigarettes or tobacco 28 products, or permit cigarettes or tobacco products to be sold, during the period of the 29 suspension or revocation on the premises occupied or controlled by that person. A 30 disciplinary proceeding or action is not barred or abated by the expiration, transfer, 31 surrender, renewal, or extension of a license issued under this chapter. The department
01 shall comply with the provisions of AS 44.62 (Administrative Procedure Act), except 02 that a hearing officer of the department, rather than a hearing officer assigned under 03 AS 44.62.350, may conduct hearings. 04 * Sec. 12. AS 43.50.105(b) is amended to read: 05 (b) A person who is licensed under this chapter may not ship or cause to be 06 shipped cigarettes to a person in this state unless the person receiving the cigarettes 07 (1) is licensed under this chapter; 08 (2) holds a business license [TOBACCO] endorsement under 09 AS 43.70.075; 10 (3) is an operator of a customs bonded warehouse under 19 U.S.C. 11 1311 or 19 U.S.C. 1555; 12 (4) is an instrumentality of the federal government or an Indian tribal 13 organization authorized by law to possess cigarettes not taxed under this chapter; or 14 (5) is an individual 19 years of age or older receiving the cigarettes for 15 personal consumption and the tax imposed on the cigarettes under this chapter has 16 been paid. 17 * Sec. 13. AS 43.70.075(a) is amended to read: 18 (a) Unless a person has a business license endorsement issued under this 19 section for each location or outlet in a location where the person offers tobacco 20 products, electronic smoking products, or products containing nicotine for sale, a 21 person may not sell or allow a vending machine to sell in its location or outlet 22 cigarettes, cigars, tobacco, [OR OTHER] products containing tobacco, electronic 23 smoking products, or products containing nicotine as a retailer at that location or 24 outlet. Each endorsement required under this section is in addition to any other license 25 or endorsement required by law. A person may not apply for an endorsement under 26 this section for a location or outlet if an endorsement issued for the same location or 27 outlet is currently suspended or revoked. An endorsement issued for a location or 28 outlet to a person in violation of this subsection is void. 29 * Sec. 14. AS 43.70.075(d) is amended to read: 30 (d) If a person who holds an endorsement issued under this section, or an 31 agent or an employee of a person who holds an endorsement issued under this section
01 acting within the scope of the agency or employment, has been convicted of violating 02 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, the department shall impose 03 a civil penalty as set out in this subsection. However, following a hearing under (m) of 04 this section, and based on evidence admitted at that hearing concerning questions 05 specified in (m)(4) and (6) of this section, the department may reduce by not more 06 than 10 days a suspension under (1) of this subsection, or by not more than 20 days a 07 suspension under (2) of this subsection, or increase by not more than 10 days a 08 suspension under (1) of this subsection, or by not more than 20 days a suspension 09 under (2) of this subsection. If a hearing is not requested, or if a hearing is requested 10 and the department determines that the evidence admitted does not support increasing 11 or decreasing the suspension, the department shall suspend the endorsement [FOR A 12 PERIOD OF] 13 (1) for a period of 20 days and impose a civil penalty of $1,000 14 [$300] if the person has not been previously convicted of violating AS 11.76.100, 15 11.76.106, [OR] 11.76.107, or 11.76.109 and is not otherwise subject to the sanctions 16 described in (2) - (4) of this subsection; 17 (2) for a period of 45 days and impose a civil penalty of $2,000 18 [$500] if, within the 24 months before the date of the department's notice under (m) of 19 this section, the person, or an agent or employee of the person while acting within the 20 scope of the agency or employment of the person, was convicted once of violating 21 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 22 (3) for a period of 90 days and impose a civil penalty of $4,000 23 [$1,000] if, within the 24 months before the date of the department's notice under (m) 24 of this section, the person, or an agent or employee of the person while acting within 25 the scope of the agency or employment of the person, was convicted twice of violating 26 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, or a provision of this section 27 or a regulation implementing this section adopted under AS 43.70.090; or 28 (4) indefinitely [ONE YEAR] and impose a civil penalty of $10,000 29 [$2,500] if, within the 24 months before the date of the department's notice under (m) 30 of this section, the person, or an agent or employee of the person while acting within 31 the scope of the agency or employment of the person, was convicted three or more
01 times [THAN TWICE] of violating AS 11.76.100, 11.76.106, [OR] 11.76.107, or 02 11.76.109. 03 * Sec. 15. AS 43.70.075(f) is amended to read: 04 (f) A person who holds a license endorsement issued under this section shall 05 post on the licensed premises a warning sign as described in this subsection. A 06 warning sign required by this subsection must be at least 8.5 [6] inches by 11 [18] 07 inches and must read [, IN LETTERING AT LEAST 1.25 INCHES HIGH]: "The sale 08 of electronic smoking products or products containing nicotine without a 09 prescription or tobacco products to persons under age 19 is illegal." A person holding 10 an endorsement issued under this section shall display the warning sign in a manner 11 conspicuous to a person purchasing or consuming tobacco products, electronic 12 smoking products, or products containing nicotine on the licensed premises. The 13 department shall make available the [, WITHOUT CHARGE, FURNISH] warning 14 signs required under this section to a person who holds an endorsement issued under 15 this section or a person who requests the sign with the intention of displaying it. 16 * Sec. 16. AS 43.70.075(i) is amended to read: 17 (i) The commissioner or the commissioner of revenue may seize cigarettes, 18 electronic smoking products, or products containing nicotine that do not comply 19 with this section. After notice and an opportunity for a hearing, the commissioner or 20 the commissioner of revenue shall destroy cigarettes, electronic smoking products, 21 or products containing nicotine seized under this subsection. 22 * Sec. 17. AS 43.70.075(l) is amended to read: 23 (l) Notwithstanding (a) of this section, a person owning vending machines that 24 offer tobacco products, electronic smoking products, or products containing 25 nicotine for sale need obtain only one business license endorsement under this section 26 even if the person has vending machines in more than one outlet or location in the 27 state. The person who owns a vending machine that offers tobacco products, 28 electronic smoking products, or products containing nicotine for sale and the 29 person who owns the premises where the vending machine is located are both required 30 to obtain a business license endorsement issued under this section. If the endorsement 31 of the person owning the vending machine is suspended or revoked, the person may
01 not sell cigarettes, cigars, [OR OTHER] products containing tobacco, electronic 02 smoking products, or products containing nicotine during the period of suspension 03 or revocation through the use of vending machines at the location or outlet where the 04 violation occurred. During the period of suspension or revocation, the person owning 05 that vending machine may not use that machine to sell tobacco products, electronic 06 smoking products, or products containing nicotine at another location or outlet. 07 * Sec. 18. 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, [OR] 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, [OR] 11.76.107, or 11.76.109, did the person, or an agent or employee of 28 the 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, [OR] 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, [OR] 15 11.76.107, or 11.76.109 at a location or outlet in a location for which the 16 person holds a business license endorsement, or had an agent or employee 17 previously violate AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 18 this subparagraph does not apply to a prior conviction that served to enhance a 19 suspension period under (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 19 years of age 23 in violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109. 24 * Sec. 19. AS 43.70.075(r) is amended to read: 25 (r) For purposes of this section, the sale of a product containing tobacco, 26 electronic smoking product, or product containing nicotine by an agent or 27 employee of a person who holds or is required to hold a business license endorsement 28 under this section at the location or outlet in a location for which the endorsement was 29 or was required to be issued is rebuttably presumed to have been a sale within the 30 person's scope of agency or employment. 31 * Sec. 20. AS 43.70.075(t) is amended to read:
01 (t) Based on evidence provided at the hearing under (m)(4) - (6) of this 02 section, the department may reduce the license suspension period under (d) of this 03 section if the person holding the business license endorsement establishes that, before 04 the date of the violation, the person had 05 (1) adopted and enforced a written policy against selling cigarettes, 06 cigars, tobacco, [OR] products containing tobacco, electronic smoking products, or 07 products containing nicotine to a person under 19 years of age in violation of 08 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 09 (2) informed the person's agents and employees of the applicable laws 10 and their requirements and conducted training on complying with the laws and 11 requirements; 12 (3) required each agent and employee of the person to sign a form 13 stating that the agent and employee has been informed of and understands the written 14 policy and the requirements of AS 11.76.100, 11.76.106, [AND] 11.76.107, and 15 11.76.109; 16 (4) determined that the agents and employees of the person had 17 sufficient experience and ability to comply with the written policy and requirements of 18 AS 11.76.100, 11.76.106, [AND] 11.76.107, and 11.76.109; 19 (5) required the agents and employees of the person to verify the age 20 of purchasers of cigarettes, cigars, tobacco, [OR] other products containing tobacco, 21 electronic smoking products, or products containing nicotine by means of a valid 22 government issued photographic identification; 23 (6) established and enforced disciplinary sanctions for noncompliance 24 with the written policy or the requirements of AS 11.76.100, 11.76.106, [AND] 25 11.76.107, and 11.76.109; and 26 (7) monitored the compliance of the agents and employees of the 27 person with the written policy and the requirements of AS 11.76.100, 11.76.106, 28 [AND] 11.76.107, and 11.76.109. 29 * Sec. 21. AS 43.70.075(v) is amended to read: 30 (v) Notwithstanding (d) of this section, in place of a hearing under (m) of this 31 section, the department and the person holding the business license endorsement may
01 enter into a memorandum of agreement regarding the imposition of a suspension and 02 civil penalties based on a violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 03 11.76.109. The memorandum of agreement must contain a provision that the person 04 holding the business license endorsement admits or does not contest that a violation of 05 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 occurred and accepts the 06 imposition of suspension and civil penalty under this section. Based on the 07 memorandum of agreement, the department may reduce the period of suspension. For 08 violations involving AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, the 09 department may not reduce the period of suspension by more than 10 days under 10 (d)(1) of this section or by more than 20 days under (d)(2) of this section. The 11 department may not agree to a reduction in the period of suspension more than once in 12 a 12-month time period for a location or outlet in a location for which the person holds 13 a business license endorsement. 14 * Sec. 22. AS 43.70.075(w) is amended to read: 15 (w) For purposes of (m)(5) of this section, a conviction for a violation of 16 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 by the agent or employee of 17 the person who holds the business license endorsement is rebuttably presumed to 18 constitute proof of the fact that the agent or employee negligently sold a cigarette, a 19 cigar, or tobacco, [OR] a product containing tobacco, electronic smoking product, or 20 product containing nicotine to a person under 19 years of age. The person who holds 21 the business license endorsement may overcome the presumption by establishing by 22 clear and convincing evidence that the agent or employee did not negligently sell a 23 cigarette, a cigar, or tobacco, [OR] a product containing tobacco, electronic smoking 24 product, or product containing nicotine to a person under 19 years of age in 25 violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 as alleged in the 26 citation issued to the agent or employee. The presentation of evidence authorized by 27 this subsection does not constitute a collateral attack on the conviction described in 28 this subsection. 29 * Sec. 23. AS 43.70.075(x) is amended to read: 30 (x) Notwithstanding (d), (t), or (v) of this section, a period of suspension may 31 not be reduced for a violation of AS 11.76.100(a)(4) or 11.76.109(a)(3).
01 * Sec. 24. AS 43.70.105(b) is amended to read: 02 (b) Notwithstanding an exemption provided by (a) of this section, a person 03 who sells cigarettes, cigars, tobacco, [OR OTHER] products containing tobacco, 04 electronic smoking products, or products containing nicotine as a retailer must 05 have a business license under AS 43.70.020 and a business license endorsement 06 required under AS 43.70.075. 07 * Sec. 25. AS 43.70.110 is amended by adding new paragraphs to read: 08 (6) "electronic smoking product" has the meaning given in 09 AS 11.76.900; 10 (7) "product containing nicotine" does not include a cigarette, a cigar, 11 tobacco, or a product containing tobacco. 12 * Sec. 26. AS 44.29.092 is amended to read: 13 Sec. 44.29.092. Citation for certain offenses concerning tobacco, products 14 containing nicotine, or electronic smoking products. A peace officer or an agent or 15 employee of the Department of Health and Social Services who is authorized by the 16 commissioner of health and social services to enforce this section may issue a citation 17 for a violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 if there is 18 probable cause to believe a person has violated AS 11.76.100, 11.76.106, [OR] 19 11.76.107, or 11.76.109. 20 * Sec. 27. The uncodified law of the State of Alaska is amended by adding a new section to 21 read: 22 APPLICABILITY. AS 11.76.105, as amended by sec. 1 of this Act, AS 11.76.106(a), 23 as amended by sec. 3 of this Act, AS 11.76.106(b), as amended by sec. 4 of this Act, 24 AS 11.76.107(a), as amended by sec. 5 of this Act, AS 11.76.109(a), as amended by sec. 6 of 25 this Act, AS 11.76.109(b), as amended by sec. 7 of this Act, AS 11.76.109(e), as amended by 26 sec. 8 of this Act, and AS 11.76.109(f), added by sec. 9 of this Act, apply to offenses 27 committed on or after the effective date of this Act.