CSSB 15(JUD): "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(JUD) 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(b) is amended to read: 22 (b) Subsection (a) does not apply if the sale 23 (1) is by vending machine as provided under AS 11.76.100(b) or 24 11.76.109(f); 25 (2) is a wholesale transaction, the person is licensed as a manufacturer 26 or distributor under AS 43.50.010, and the sale occurs on premises where no retail 27 transactions occur; or 28 (3) is by a retailer who sells primarily cigarettes, cigars, tobacco, 29 products [OR A PRODUCT] containing tobacco, electronic smoking products, or 30 products containing nicotine and who restricts access to the premises to only those 31 individuals who are 19 years of age or older.
01 * Sec. 4. AS 11.76.107(a) is amended to read: 02 (a) A person commits the offense of failure to supervise a [CIGARETTE] 03 vending machine if the person owns premises licensed as a beverage dispensary under 04 AS 04.11.090 or licensed as a club under AS 04.11.110 or licensed as a package store 05 under AS 04.11.150 and with criminal negligence fails to have an employee supervise 06 a vending machine on those premises that dispenses cigarettes, cigars, tobacco, [OR] 07 products containing tobacco, electronic smoking products, or products containing 08 nicotine as required by AS 11.76.100(b)(1)(B) and 11.76.109(f)(1)(B). 09 * Sec. 5. AS 11.76.109(a) is amended to read: 10 (a) A person commits the offense of selling or giving an electronic smoking 11 product or a product containing nicotine to a minor if the person 12 (1) negligently sells an electronic smoking product or a product 13 containing nicotine to a person under 19 years of age; [OR] 14 (2) is 19 years of age or older and negligently exchanges or gives an 15 electronic smoking product or a product containing nicotine to a person under 19 16 years of age; 17 (3) maintains a vending machine that dispenses electronic smoking 18 products or products containing nicotine; or 19 (4) holds a business license endorsement under AS 43.70.075 and 20 allows a person under 19 years of age to sell an electronic smoking product or a 21 product containing nicotine. 22 * Sec. 6. AS 11.76.109(b) is amended to read: 23 (b) The provisions of (a) of this section do not apply to the sale, exchange, or 24 gift to a person under 19 years of age of an electronic smoking product or a product 25 containing nicotine that is intended or expected to be consumed without being 26 combusted if the electronic smoking product or product containing nicotine 27 (1) has been approved by the United States Food and Drug 28 Administration for sale as a tobacco use cessation or harm reduction product or for 29 other medical purposes; 30 (2) is being marketed and sold solely for the approved purposes; and 31 (3) is
01 (A) prescribed by a health care professional; 02 (B) given to a person by the person's parent or legal guardian; 03 (C) provided by a state-approved tobacco cessation program 04 administered by the Department of Health and Social Services; or 05 (D) provided by a pharmacist to a person 18 years of age or 06 older without a prescription. 07 * Sec. 7. AS 11.76.109(e) is amended to read: 08 (e) Selling or giving an electronic smoking product or a product containing 09 nicotine to a minor is a violation and, upon conviction, is punishable by a fine of not 10 less than $300. 11 * Sec. 8. AS 11.76.109 is amended by adding new subsections to read: 12 (f) Notwithstanding (a)(3) of this section, a person who maintains a vending 13 machine is not in violation of (a)(3) of this section if the vending machine is located 14 (1) on premises licensed as a beverage dispensary under AS 04.11.090, 15 licensed as a club under AS 04.11.110, or licensed as a package store under 16 AS 04.11.150, and is located 17 (A) as far as practicable from the primary entrance; and 18 (B) in a place that is directly and continually supervised by a 19 person employed on the licensed premises during the hours the vending 20 machine is accessible to the public; or 21 (2) in an employee break room or other controlled area of a private 22 work place that is not generally considered a public place and the room or area 23 contains a posted warning sign at least 11 inches by 8.5 inches indicating that 24 possession of electronic smoking products or products containing nicotine by a person 25 under 19 years of age without a prescription is prohibited under AS 11.76.109. 26 (g) The court shall forward a record of each person convicted under this 27 section who holds a business license endorsement under AS 43.70.075, or who is an 28 employee or agent of a person who holds a business license endorsement under 29 AS 43.70.075, to the Department of Commerce, Community, and Economic 30 Development. 31 * Sec. 9. AS 11.81.900(b) is amended by adding a new paragraph to read:
01 (67) "electronic smoking product" 02 (A) means 03 (i) any product containing or delivering nicotine or any 04 other substance intended for human consumption that can be used by a 05 person through inhalation of vapor or aerosol from the product, of any 06 size or shape, whether the product is manufactured, distributed, 07 marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, vape pen, 08 or any other product name or descriptor; or 09 (ii) a component, solution, alternative tobacco product, 10 e-liquid, e-juice, vapor product, flavoring, or other related product of an 11 electronic cigarette, electronic cigar, electronic cigarillo, electronic 12 pipe, or other similar device of any size or shape used for, or to assist 13 with, aerosolizing and inhaling chemical substances that may cause an 14 adverse effect on human health; 15 (B) does not include marijuana as defined in AS 11.71.900. 16 * Sec. 10. AS 43.50.070(a) is amended to read: 17 (a) The department may suspend, revoke, or refuse to renew a license issued 18 under this chapter (1) for a negligent violation of AS 11.76.100, 11.76.106, 11.76.107, 19 11.76.109, or a violation of this chapter or a regulation of the department adopted 20 under this chapter; (2) if a licensee ceases to act in the capacity for which the license 21 was issued; or (3) if a licensee negligently sells tobacco or products containing 22 tobacco to a person who is required to, but does not, hold a license endorsement under 23 AS 43.70.075 or whose license endorsement under AS 43.70.075 has been suspended. 24 A person whose license is suspended or revoked may not sell cigarettes or tobacco 25 products, or permit cigarettes or tobacco products to be sold, during the period of the 26 suspension or revocation on the premises occupied or controlled by that person. A 27 disciplinary proceeding or action is not barred or abated by the expiration, transfer, 28 surrender, renewal, or extension of a license issued under this chapter. The department 29 shall comply with the provisions of AS 44.62 (Administrative Procedure Act), except 30 that a hearing officer of the department, rather than a hearing officer assigned under 31 AS 44.62.350, may conduct hearings.
01 * Sec. 11. AS 43.50.105(b) is amended to read: 02 (b) A person who is licensed under this chapter may not ship or cause to be 03 shipped cigarettes to a person in this state unless the person receiving the cigarettes 04 (1) is licensed under this chapter; 05 (2) holds a business license [TOBACCO] endorsement under 06 AS 43.70.075; 07 (3) is an operator of a customs bonded warehouse under 19 U.S.C. 08 1311 or 19 U.S.C. 1555; 09 (4) is an instrumentality of the federal government or an Indian tribal 10 organization authorized by law to possess cigarettes not taxed under this chapter; or 11 (5) is an individual 19 years of age or older receiving the cigarettes for 12 personal consumption and the tax imposed on the cigarettes under this chapter has 13 been paid. 14 * Sec. 12. AS 43.70.075(a) is amended to read: 15 (a) Unless a person has a business license endorsement issued under this 16 section for each location or outlet in a location where the person offers tobacco 17 products, electronic smoking products, or products containing nicotine for sale, a 18 person may not sell or allow a vending machine to sell in its location or outlet 19 cigarettes, cigars, tobacco, [OR OTHER] products containing tobacco, electronic 20 smoking products, or products containing nicotine as a retailer at that location or 21 outlet. Each endorsement required under this section is in addition to any other license 22 or endorsement required by law. A person may not apply for an endorsement under 23 this section for a location or outlet if an endorsement issued for the same location or 24 outlet is currently suspended or revoked. An endorsement issued for a location or 25 outlet to a person in violation of this subsection is void. 26 * Sec. 13. AS 43.70.075(d) is amended to read: 27 (d) If a person who holds an endorsement issued under this section, or an 28 agent or an employee of a person who holds an endorsement issued under this section 29 acting within the scope of the agency or employment, has been convicted of violating 30 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, the department shall impose 31 a civil penalty as set out in this subsection. However, following a hearing under (m) of
01 this section, and based on evidence admitted at that hearing concerning questions 02 specified in (m)(4) and (6) of this section, the department may reduce by not more 03 than 10 days a suspension under (1) of this subsection, or by not more than 20 days a 04 suspension under (2) of this subsection, or increase by not more than 10 days a 05 suspension under (1) of this subsection, or by not more than 20 days a suspension 06 under (2) of this subsection. If a hearing is not requested, or if a hearing is requested 07 and the department determines that the evidence admitted does not support increasing 08 or decreasing the suspension, the department shall suspend the endorsement [FOR A 09 PERIOD OF] 10 (1) for a period of 20 days and impose a civil penalty of $1,000 11 [$300] if the person has not been previously convicted of violating AS 11.76.100, 12 11.76.106, [OR] 11.76.107, or 11.76.109 and is not otherwise subject to the sanctions 13 described in (2) - (4) of this subsection; 14 (2) for a period of 45 days and impose a civil penalty of $2,000 15 [$500] if, within the 24 months before the date of the department's notice under (m) of 16 this section, the person, or an agent or employee of the person while acting within the 17 scope of the agency or employment of the person, was convicted once of violating 18 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 19 (3) for a period of 90 days and impose a civil penalty of $4,000 20 [$1,000] if, within the 24 months before the date of the department's notice under (m) 21 of this section, the person, or an agent or employee of the person while acting within 22 the scope of the agency or employment of the person, was convicted twice of violating 23 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, or a provision of this section 24 or a regulation implementing this section adopted under AS 43.70.090; or 25 (4) indefinitely [ONE YEAR] and impose a civil penalty of $10,000 26 [$2,500] if, within the 24 months before the date of the department's notice under (m) 27 of this section, the person, or an agent or employee of the person while acting within 28 the scope of the agency or employment of the person, was convicted three or more 29 times [THAN TWICE] of violating AS 11.76.100, 11.76.106, [OR] 11.76.107, or 30 11.76.109. 31 * Sec. 14. AS 43.70.075(f) is amended to read:
01 (f) A person who holds a license endorsement issued under this section shall 02 post on the licensed premises a warning sign as described in this subsection. A 03 warning sign required by this subsection must be at least 8.5 [6] inches by 11 [18] 04 inches and must read [, IN LETTERING AT LEAST 1.25 INCHES HIGH]: "The sale 05 of electronic smoking products or products containing nicotine without a 06 prescription or tobacco products to persons under age 19 is illegal." A person holding 07 an endorsement issued under this section shall display the warning sign in a manner 08 conspicuous to a person purchasing or consuming tobacco products, electronic 09 smoking products, or products containing nicotine on the licensed premises. The 10 department shall make available the [, WITHOUT CHARGE, FURNISH] warning 11 signs required under this section to a person who holds an endorsement issued under 12 this section or a person who requests the sign with the intention of displaying it. 13 * Sec. 15. AS 43.70.075(i) is amended to read: 14 (i) The commissioner or the commissioner of revenue may seize cigarettes, 15 electronic smoking products, or products containing nicotine that do not comply 16 with this section. After notice and an opportunity for a hearing, the commissioner or 17 the commissioner of revenue shall destroy cigarettes, electronic smoking products, 18 or products containing nicotine seized under this subsection. 19 * Sec. 16. AS 43.70.075(l) is amended to read: 20 (l) Notwithstanding (a) of this section, a person owning vending machines that 21 offer tobacco products, electronic smoking products, or products containing 22 nicotine for sale need obtain only one business license endorsement under this section 23 even if the person has vending machines in more than one outlet or location in the 24 state. The person who owns a vending machine that offers tobacco products, 25 electronic smoking products, or products containing nicotine for sale and the 26 person who owns the premises where the vending machine is located are both required 27 to obtain a business license endorsement issued under this section. If the endorsement 28 of the person owning the vending machine is suspended or revoked, the person may 29 not sell cigarettes, cigars, [OR OTHER] products containing tobacco, electronic 30 smoking products, or products containing nicotine during the period of suspension 31 or revocation through the use of vending machines at the location or outlet where the
01 violation occurred. During the period of suspension or revocation, the person owning 02 that vending machine may not use that machine to sell tobacco products, electronic 03 smoking products, or products containing nicotine at another location or outlet. 04 * Sec. 17. AS 43.70.075(m) is amended to read: 05 (m) The department may initiate suspension of a business license endorsement 06 or the right to obtain a business license endorsement under this section by sending the 07 person subject to the suspension a notice by certified mail, return receipt requested, or 08 by delivering the notice to the person. The notice must contain information that 09 informs the person of the grounds for suspension, the length of any suspension sought, 10 and the person's right to administrative review. A suspension begins 30 days after 11 receipt of notice described in this subsection unless the person delivers a timely 12 written request for a hearing to the department in the manner provided by regulations 13 of the department. If a hearing is requested under this subsection, an administrative 14 law judge of the office of administrative hearings (AS 44.64.010) shall determine the 15 issues by using the preponderance of the evidence test and shall, to the extent they do 16 not conflict with regulations adopted under AS 44.64.060, conduct the hearing in the 17 manner provided by regulations of the department. A hearing under this subsection is 18 limited to the following questions: 19 (1) was the person holding the business license endorsement, or an 20 agent or employee of the person while acting within the scope of the agency or 21 employment of the person, convicted by plea or judicial finding of violating 22 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 23 (2) if the department does not allege a conviction of AS 11.76.100, 24 11.76.106, [OR] 11.76.107, or 11.76.109, did the person, or an agent or employee of 25 the person while acting within the scope of the agency or employment of the person, 26 violate a provision of (a) or (g) of this section; 27 (3) within the 24 months before the date of the department's notice 28 under this subsection, was the person, or an agent or employee of the person while 29 acting within the scope of the agency or employment of the person, convicted of 30 violating AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 or adjudicated for 31 violating a provision of (a) or (g) of this section;
01 (4) did the person holding the business license endorsement establish 02 that the person holding the business license endorsement had adopted and enforced an 03 education, a compliance, and a disciplinary program for agents and employees of the 04 person as provided in (t) of this section; 05 (5) did the person holding the business license endorsement overcome 06 the rebuttable presumption established in (w) of this section; 07 (6) within five years before the date of the violation that is the subject 08 of the hearing, did the department establish that the person holding the business 09 license endorsement 10 (A) previously violated (a) or (g) of this section; 11 (B) previously violated AS 11.76.100, 11.76.106, [OR] 12 11.76.107, or 11.76.109 at a location or outlet in a location for which the 13 person holds a business license endorsement, or had an agent or employee 14 previously violate AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 15 this subparagraph does not apply to a prior conviction that served to enhance a 16 suspension period under (d)(2) - (4) of this section; or 17 (C) engaged at a location owned by the person in other conduct 18 that was or is likely to result in the sale of tobacco, electronic smoking 19 products, or products containing nicotine to a person under 19 years of age 20 in violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109. 21 * Sec. 18. AS 43.70.075(r) is amended to read: 22 (r) For purposes of this section, the sale of a product containing tobacco, 23 electronic smoking product, or product containing nicotine by an agent or 24 employee of a person who holds or is required to hold a business license endorsement 25 under this section at the location or outlet in a location for which the endorsement was 26 or was required to be issued is rebuttably presumed to have been a sale within the 27 person's scope of agency or employment. 28 * Sec. 19. AS 43.70.075(t) is amended to read: 29 (t) Based on evidence provided at the hearing under (m)(4) - (6) of this 30 section, the department may reduce the license suspension period under (d) of this 31 section if the person holding the business license endorsement establishes that, before
01 the date of the violation, the person had 02 (1) adopted and enforced a written policy against selling cigarettes, 03 cigars, tobacco, [OR] products containing tobacco, electronic smoking products, or 04 products containing nicotine to a person under 19 years of age in violation of 05 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109; 06 (2) informed the person's agents and employees of the applicable laws 07 and their requirements and conducted training on complying with the laws and 08 requirements; 09 (3) required each agent and employee of the person to sign a form 10 stating that the agent and employee has been informed of and understands the written 11 policy and the requirements of AS 11.76.100, 11.76.106, [AND] 11.76.107, and 12 11.76.109; 13 (4) determined that the agents and employees of the person had 14 sufficient experience and ability to comply with the written policy and requirements of 15 AS 11.76.100, 11.76.106, [AND] 11.76.107, and 11.76.109; 16 (5) required the agents and employees of the person to verify the age 17 of purchasers of cigarettes, cigars, tobacco, [OR] other products containing tobacco, 18 electronic smoking products, or products containing nicotine by means of a valid 19 government issued photographic identification; 20 (6) established and enforced disciplinary sanctions for noncompliance 21 with the written policy or the requirements of AS 11.76.100, 11.76.106, [AND] 22 11.76.107, and 11.76.109; and 23 (7) monitored the compliance of the agents and employees of the 24 person with the written policy and the requirements of AS 11.76.100, 11.76.106, 25 [AND] 11.76.107, and 11.76.109. 26 * Sec. 20. AS 43.70.075(v) is amended to read: 27 (v) Notwithstanding (d) of this section, in place of a hearing under (m) of this 28 section, the department and the person holding the business license endorsement may 29 enter into a memorandum of agreement regarding the imposition of a suspension and 30 civil penalties based on a violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 31 11.76.109. The memorandum of agreement must contain a provision that the person
01 holding the business license endorsement admits or does not contest that a violation of 02 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 occurred and accepts the 03 imposition of suspension and civil penalty under this section. Based on the 04 memorandum of agreement, the department may reduce the period of suspension. For 05 violations involving AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109, the 06 department may not reduce the period of suspension by more than 10 days under 07 (d)(1) of this section or by more than 20 days under (d)(2) of this section. The 08 department may not agree to a reduction in the period of suspension more than once in 09 a 12-month time period for a location or outlet in a location for which the person holds 10 a business license endorsement. 11 * Sec. 21. AS 43.70.075(w) is amended to read: 12 (w) For purposes of (m)(5) of this section, a conviction for a violation of 13 AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 by the agent or employee of 14 the person who holds the business license endorsement is rebuttably presumed to 15 constitute proof of the fact that the agent or employee negligently sold a cigarette, a 16 cigar, or tobacco, [OR] a product containing tobacco, electronic smoking product, or 17 product containing nicotine to a person under 19 years of age. The person who holds 18 the business license endorsement may overcome the presumption by establishing by 19 clear and convincing evidence that the agent or employee did not negligently sell a 20 cigarette, a cigar, or tobacco, [OR] a product containing tobacco, electronic smoking 21 product, or product containing nicotine to a person under 19 years of age in 22 violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 as alleged in the 23 citation issued to the agent or employee. The presentation of evidence authorized by 24 this subsection does not constitute a collateral attack on the conviction described in 25 this subsection. 26 * Sec. 22. AS 43.70.075(x) is amended to read: 27 (x) Notwithstanding (d), (t), or (v) of this section, a period of suspension may 28 not be reduced for a violation of AS 11.76.100(a)(4) or 11.76.109(a)(3). 29 * Sec. 23. AS 43.70.105(b) is amended to read: 30 (b) Notwithstanding an exemption provided by (a) of this section, a person 31 who sells cigarettes, cigars, tobacco, [OR OTHER] products containing tobacco,
01 electronic smoking products, or products containing nicotine as a retailer must 02 have a business license under AS 43.70.020 and a business license endorsement 03 required under AS 43.70.075. 04 * Sec. 24. AS 43.70.110 is amended by adding new paragraphs to read: 05 (6) "electronic smoking product" has the meaning given in 06 AS 11.76.900; 07 (7) "product containing nicotine" does not include a cigarette, a cigar, 08 tobacco, or a product containing tobacco. 09 * Sec. 25. AS 44.29.092 is amended to read: 10 Sec. 44.29.092. Citation for certain offenses concerning tobacco, products 11 containing nicotine, or electronic smoking products. A peace officer or an agent or 12 employee of the Department of Health and Social Services who is authorized by the 13 commissioner of health and social services to enforce this section may issue a citation 14 for a violation of AS 11.76.100, 11.76.106, [OR] 11.76.107, or 11.76.109 if there is 15 probable cause to believe a person has violated AS 11.76.100, 11.76.106, [OR] 16 11.76.107, or 11.76.109. 17 * Sec. 26. The uncodified law of the State of Alaska is amended by adding a new section to 18 read: 19 APPLICABILITY. AS 11.76.105, as amended by sec. 1 of this Act, AS 11.76.106(b), 20 as amended by sec. 3 of this Act, AS 11.76.107(a), as amended by sec. 4 of this Act, 21 AS 11.76.109(a), as amended by sec. 5 of this Act, AS 11.76.109(b), as amended by sec. 6 of 22 this Act, AS 11.76.109(e), as amended by sec. 7 of this Act, and AS 11.76.109(f), added by 23 sec. 8 of this Act, apply to offenses committed on or after the effective date of this Act.