01/28/1998 09:00 AM Senate HES

                                                                               
                HB 189 - RESTRICT TOBACCO SALES                                
                                                                               
REPRESENTATIVE COWDERY, sponsor of HB 189, deferred to Marco                   
Pignalberi to explain the changes made in the proposed committee               
substitute.                                                                    
                                                                               
MARCO PIGNALBERI, staff to Representative Cowdery, noted the draft             
committee substitute is SCS CSSSHB 189(HES), version 0-LS0711\L.               
                                                                               
SENATOR WARD moved to adopt that version as the working document of            
the committee.  There being no objection, the motion carried.                  
                                                                               
MR. PIGNALBERI, explained the committee substitute contains five               
key changes recommended by the committee and the attorney general's            
office.  Those changes are as follows.                                         
                                                                               
     1.  The culpability standard was changed back from "knowingly"            
     to "negligently" throughout the bill;                                     
     2.  On page 2, lines 12-13, new language was added requiring              
     a sign to be posted in employee break rooms and applies to                
     businesses that have cigarette vending machines in employee               
     break rooms and employ minors;                                            
     3.  On page 2, lines 29-31, new language was added to clarify             
     that wholesale businesses that also sell retail must adhere to            
     the self service prohibition for retail sales;                            
     4.  On page 3, lines 1 and 2, language has been added that                
     applies to shops that sell only tobacco products.  Those shops            
     do not allow entry to individuals under the age of 19 so there            
     is no reason to prohibit self-service tobacco displays in                 
     those locations.                                                          
                                                                               
TAPE 98-5, SIDE B                                                              
                                                                               
     5.  Section 6 ties the penalty provision to the occupational              
     licensing statute.  It was not clear to the Attorney General's            
     Office that the penalty could be invoked against people who               
     had licenses under that statute.                                          
                                                                               
SENATOR LEMAN noted one other significant change:  Section 3 (page             
2) changes the class B misdemeanor penalty to a violation.                     
                                                                               
MR. PIGNALBERI affirmed that was correct.  He also noted that the              
provision that mandated that maximum effect be given to both HB 159            
and HB 189 if enacted was deleted because the vending machine                  
statutes were included in HB 189.                                              
                                                                               
Number 570                                                                     
                                                                               
SENATOR LEMAN advised that current law, and HB 189, state that the             
violation shall be punishable by a fine of not less than $300.  He             
asked what the maximum amount of the fine for a violation is.  MR.             
PIGNALBERI said a previous speaker testified that the fine could be            
as high as $1,000, but he suggested asking a representative from               
the Attorney General's Office.                                                 
                                                                               
SENATOR LEMAN thought the $300 fine was adequate to change                     
behavior, especially if judgment is swift and sure.                            
                                                                               
SENATOR GREEN asked Mr. Pignalberi to review the difference between            
the "knowing" and "negligent" standard.  MR. PIGNALBERI explained              
the culpability standard for "negligently" applies to a violation              
and is a lower standard.  If the penalty or fine is increased, the             
law requires the standard of culpability to be increased, placing              
a more difficult burden on the State to prove.  Law enforcement                
officials requested the lower penalty because it requires a lower              
burden of proof and is easier to achieve in the course of a                    
prosecution.                                                                   
                                                                               
ANNE MARIE HOLEN, representing the Sealaska Native Health Board and            
Citizens to Protect Kids from Tobacco, thanked the committee for               
considering suggestions made at the last meeting and asked the                 
following questions of the Department of Law.                                  
                                                                               
CHAIRMAN WILKEN announced Anne Carpeneti of the Department of Law              
had joined members at the table.                                               
                                                                               
MS. HOLEN asked how this legislation will be enforced in the real              
world and how police will determine if a vendor is violating the               
provision that all sales must be clerk-assisted.  She questioned               
whether a police officer can simply look in a store and cite a                 
merchant if the officer sees self-service tobacco displays, or                 
whether the officer would have to witness a purchase attempt.                  
                                                                               
MS. CARPENETI replied she would prefer to have Department of Public            
Safety personnel answer that but it is her understanding that the              
purpose of the bill is to avoid having to have sting operations to             
enforce the tobacco statutes.  That is why it requires controlled              
sales behind the counter.  She thought the section that does that              
could be drafted a little more clearly.                                        
                                                                               
Number 525                                                                     
                                                                               
MS. HOLEN asked how it will be determined that a retailer who sells            
only tobacco products should be exempted, and whether that retailer            
could be cited if a teenager entered the store even though a sign              
is posted requiring those who enter to be 19.                                  
                                                                               
MS. CARPENETI said it has been suggested that Section 4(b) be                  
redrafted to clarify that the exception applies only to retailers              
who sell mainly tobacco products and not the 7-11 stores that sell             
cigarettes.  She thought Ms. Holen's concerns could be addressed in            
that subsection if it is redrafted.                                            
                                                                               
MS. CARPENETI thanked the Chairman for including the Department of             
Law's suggested amendments in the committee substitute.  The                   
department also believes Section 2 (AS 11.76) should be rewritten              
in terms of positives rather than negatives, for purposes of                   
clarification, and that a penalty provision be added.  She added if            
the provision that applies to retailers who sell only tobacco                  
products is not restricted to those retailers only, it could create            
a loophole that could be applied to all retailers.                             
                                                                               
Number 496                                                                     
                                                                               
REPRESENTATIVE COWDERY agreed with the changes suggested by Ms.                
Carpeneti.  CHAIRMAN WILKEN announced the bill will be redrafted               
and rescheduled next week.                                                     
                                                                               
MARK HICKEY, representing the Coalition of Citizens to Protect Kids            
from Tobacco, agreed with the previous speaker's comments.  He                 
expressed concern that subsection(b) on page 3, lines 1 and 2,                 
might negatively affect enforcement actions as drafted.  He                    
suggested adding a lead in phrase that says, "In the case of a                 
retailer that principally sells only tobacco products,...."                    
                                                                               
SENATOR LEMAN thought the word "only" could be eliminated because              
some tobacco shops do sell a few other products.                               
                                                                               
REPRESENTATIVE COWDERY stated he will present a revised committee              
substitute to the committee next week.                                         
                                                                               
There being no further business to come before the committee,                  
CHAIRMAN WILKEN adjourned the meeting at 10:02 a.m.