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