Legislature(1997 - 1998)
05/05/1997 01:32 PM House JUD
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* first hearing in first committee of referral
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SSHB 189 - RESTRICT TOBACCO SALES SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC. HB 79 - MINOR IN POSSESSION OF TOBACCO Number 2150 CHAIRMAN GREEN called on Representative James for a subcommittee report on Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date"; Sponsor Substitute for House Bill No. 159, "An Act relating to sale, gift, exchange, possession, and purchase of tobacco and tobacco products; and providing for an effective date"; and House Bill No. 79, "An Act relating to the offense of possession of tobacco by a person under 19 years of age." The three bills had been assigned to the same subcommittee. REPRESENTATIVE JAMES, speaking as chair of that subcommittee, reported that they had met that morning and decided to let the decisions be made by the committee as a whole. SSHB 189 - RESTRICT TOBACCO SALES CHAIRMAN GREEN brought before the committee Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." Version 0- LS0711\F, Ford, 4/21/97, had been adopted as a work draft at the previous hearing. CASEY SULLIVAN, Legislative Administrative Assistant to Representative John Cowdery, spoke on behalf of the sponsor, saying this bill will limit public access to tobacco products in retail premises; require employees to learn the relevant statutes and sign an affidavit attesting to their understanding; and increase penalties for selling tobacco to minors. MR. SULLIVAN said one thing that passionately resonates throughout Alaska is that people don't want to see tobacco going to minors. This bill changes the penalties for selling or giving tobacco to a person under 19 years of age from a violation that carries a fine of not less than $300 to a class A misdemeanor carrying a penalty of up to $5,000; a second offense would be a class C felony carrying a penalty of up to $50,000. It is not their intent to punish minors beyond the penalties now in statute, and they hadn't addressed that. It is essentially for retailers selling tobacco to minors. MR. SULLIVAN referred to testimony during the House Labor and Commerce Standing Committee hearing, which indicated banning tobacco self-service displays is a popular approach endorsed by a couple of different establishments. He said this bill is the first to feature that self-service ban. MR. SULLIVAN referred to questions from the previous hearing in the present committee. The first regarded lack of fiscal notes. He'd checked with Anne Carpeneti of the Department of Law, who said she won't be issuing a fiscal note "due to the lack of history." All others received thus far have been zero fiscal notes. MR. SULLIVAN referred to a second question concerning the culpable mental state of "negligence" now in AS 11.76.100. He said that is not the commensurate term to use with the stricter penalties proposed here. For a class A misdemeanor, "knowingly" is more appropriate; for the class C felony, "recklessly" is more appropriate. Mike Ford from Legislative Legal Services had indicated that including both definitions within the bill would be okay, and those are consistent with the amendment Representative Porter had offered at the last hearing. MR. SULLIVAN next referred to a question asked by Chairman Green, relating to whether the penalty provisions would affect people who are not retail shop owners, such as those on the streets giving a few cigarettes to others. Review with Legislative Legal Services had indicated the standard of culpability for these penalties would make that highly improbable, just due to the circumstances. He stated, "But in a memo that we got today, just due to the actual definition of the statute, ... they would be responsible for that." CHAIRMAN GREEN said, "If somehow caught, they would be." MR. SULLIVAN agreed. He restated that the intent is not to punish minors or people on the street. They just want to restrict tobacco to public access, as much as possible, in retail establishments and to provide economic incentive for not selling to minors. Number 2315 REPRESENTATIVE BUNDE noted the repeated comment about not wanting to punish minors. He also recalled that the sponsor had once indicated he didn't want to punish those already addicted to nicotine. Yet a minor who attempts to purchase alcohol is subject to a punishment as well as the person who sells the product. He asked the reason for differentiating between illegally purchasing tobacco and illegally purchasing alcohol. Number 2345 MR. SULLIVAN replied that they just don't address it in this bill. He believes there are already penalty provisions for minors in possession of tobacco, "a violation of $300." He stated, "We thought that the responsibility ought to be on the people who distribute these products. And it is. And then there's new federal regulations, as you well know, that are coming out. And we thought that would be ... the eminent focus of our legislation." REPRESENTATIVE BUNDE asked, "If a minor is using a false ID and purchases, do you feel that's still adequately addressed in existing legislation?" MR. SULLIVAN answered that to the best of his knowledge, it is not covered extensively. Number 2378 REPRESENTATIVE CROFT noted the class C felony for the second sale of tobacco. He asked what the penalties are for selling marijuana. MR. SULLIVAN said he didn't know. They had fashioned these penalty provisions to be similar to those in statute for providing alcohol to minors, although there is a stiffer fine. Number 2411 REPRESENTATIVE BERKOWITZ noted that this also covers exchanging or giving tobacco. He suggested a person giving a cigarette to a 16- year-old or 18-year-old would come under the reach of the statute. MR. SULLIVAN affirmed that. He mentioned Mike Ford of Legislative Legal Services and read: "Accidentally giving a cigarette only causes a crime to occur if the act is a gross deviation from what ... a reasonable person would do in that situation." He said it is a culpable mental state. Number 2463 REPRESENTATIVE JAMES asked how they envision enforcement happening. CHAIRMAN GREEN asked: With a zero fiscal note? TAPE 97-76, SIDE B Number 0006 MR. SULLIVAN indicated they hope the penalties will encourage enforcement and discourage retail owners and employees from breaking the law. He stated, "There's obviously an increase in education that is going on right now through federal regulations. Throughout all the shops in Alaska, we're seeing the `we card' program and others similar to that. I think that the education is very high, and once they're also educated on the penalties that will be incurred if they sell, if they deviate from this, I think that you will find, with these increased penalties, that the sales ... of tobacco to minors will decrease." CHAIRMAN GREEN asked: Without catching someone in the act of selling to a minor, what would the penalty be for an owner who didn't enforce it or who didn't cause employees to enforce it? MR. SULLIVAN said he didn't know. Number 0070 REPRESENTATIVE PORTER restated his concern about passing this bill out with a "violation standard for a misdemeanor and a felony." He said they'd have big trouble if they had a negligence standard for committing a felony, which he believes is totally inappropriate for a misdemeanor. He proposed changing that. CHAIRMAN GREEN asked whether the sponsor had concerns about that; Mr. Sullivan's reply was indiscernible due to simultaneous speech. Number 0102 REPRESENTATIVE NORMAN ROKEBERG said along that same line, he is concerned that the culpable person is the employee. The five-year window where it goes from a first-offense class A misdemeanor to a class C felony seemed a bit draconian. With too stiff a penalty, there is a tendency not to enforce it if it seems unreasonable. Number 0123 REPRESENTATIVE PORTER agreed. As discussed in other bills relating to whether an offense should be a violation, misdemeanor or felony, there is a practical side. A person will get whatever sentence the court feels is appropriate within legal guidelines. A clerk convicted of a C felony for a second offense of selling cigarettes to a minor will get no more than for a misdemeanor. He explained, "You can sentence someone on an A misdemeanor up to a year in jail. A C felony is not going to get any more than that. It might even get less because of a serious suspended imposition of sentence or something. With that in mind, we're moving from a violation, which is no jail time, into the criminal area." REPRESENTATIVE PORTER suggested making this a B misdemeanor and an A misdemeanor, as opposed to an A misdemeanor and a C felony, and changing the standard to "knowingly" and not "negligently," so that it is consistent with other criminal offenses. CHAIRMAN GREEN asked whether that was being offered as an amendment. REPRESENTATIVE PORTER moved that as an amendment, specifying that the initial offense of selling or giving tobacco to a minor would be a B misdemeanor, and the second offense would be an A misdemeanor. In addition, under AS 11.76.100(a)(1), the word "negligently" would be replaced by the word "knowingly". CHAIRMAN GREEN asked whether there were questions or an objection to the amendment. There being none, the amendment was adopted. REPRESENTATIVE ROKEBERG made a motion to move committee substitute 0-LS0711\F, Ford, 4/21/97, as amended, from the committee with attached zero fiscal notes and individual recommendations. There being no objection, CSSSHB 189(JUD) moved from the House Judiciary Standing Committee. SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC. [Contains extensive comparisons with CSSSHB 189(JUD)] CHAIRMAN GREEN announced the next item of business was Sponsor Substitute for House Bill No. 159, "An Act relating to sale, gift, exchange, possession, and purchase of tobacco and tobacco products; and providing for an effective date." Number 0282 NICOLE POIRRIER, Legislative Intern for Representative Pete Kott, read the sponsor statement into the record, noting that Representative Kott would join the meeting shortly. She read: "The state of Alaska has a serious problem with underage consumption of tobacco products. Statistics compiled by the Department of Health and Social Services indicate that 21 percent of Alaska's high school students regularly smoke and that 25 percent of our ... middle school students smoked at least one cigarette in the last month. As reported by the February 27, 1997, edition of The Wall Street Journal, the Center for Disease Control and Prevention has concluded that approximately one million children each year take up smoking and that unless they quit, over one-third of them will die from tobacco-related illnesses. "These statistics are cause for great concern. It is estimated that 18,000 of Alaska's children will succumb prematurely to tobacco-related illnesses. This is a tragedy, not only for the individuals but for our state as a whole. I think that we can do better. "Under existing law, no one under 19 years of age is permitted to possess tobacco. Obviously, large numbers of our children are being accorded illegal access to this product. House Bill 159 would have the salutary effect of limiting that access. This bill requires that merchants, prior to the sale of tobacco, demand proof of age from any prospective patron who appears to be under 27 years of age. House Bill 159 requires all clerks involved in the retail sale of tobacco to sign an acknowledgment that they have been advised of this proof-of-age requirement. In addition, House Bill 159 increases the penalties for underage sale or possession of tobacco. I urge your support." Ms. Poirrier deferred to the sponsor, who had not yet arrived, to answer questions. Number 0366 REPRESENTATIVE BERKOWITZ noted that they'd just passed out legislation that defined, by statute, that this is an A misdemeanor. Now, they were reverting and calling it a violation. He suggested that since this is a subsequent action, it may supersede their preceding action if it passed out of committee. REPRESENTATIVE ROKEBERG stated his understanding that there are two different "offendee potentials," as the bills speak to different parties. One is a giver, seller, barterer or distributor, whereas the other is the underage receiver or possessor. Number 0408 REPRESENTATIVE CROFT agreed. He said it makes it a violation for a person under 21 years of age to knowingly possess tobacco or to present false identification. He asked what the current penalty is, if any, for minors who purchase tobacco. REPRESENTATIVE BERKOWITZ responded that he was talking about just the provisions of AS 11.76.100. REPRESENTATIVE PORTER asked, "As stated in the bill or as existing in law now?" REPRESENTATIVE BERKOWITZ said as stated in both SSHB 159 and SSHB 189. Number 0450 REPRESENTATIVE BUNDE referred to page 4, lines 9 through 18, and said it talks about a person with a business license who violates this section. It isn't only talking about a minor. REPRESENTATIVE CROFT added, "And similarly, as you just said, on page 1, lines 13 and 14, and page 2, lines 1 and 2, a person who violates it is given a violation." He agreed there are two areas where the seller is getting a violation, whereas they'd just made it a misdemeanor. REPRESENTATIVE BERKOWITZ said he'd be happy to supersede with this. REPRESENTATIVE ROKEBERG asked whether it would be appropriate to do a conceptual amendment to conform the legislation. He said he'd hoped the subcommittee would have taken up those issues. CHAIRMAN GREEN agreed and said he hadn't realized there was the conflict. REPRESENTATIVE ROKEBERG said, "I sit corrected. Representative Berkowitz is correct in those areas that do have overlap with the other bill." REPRESENTATIVE CROFT advised members that he had a "side-by-side" of the different tobacco bills. CHAIRMAN GREEN asked whether that had been presented to the subcommittee. REPRESENTATIVE CROFT said no, they'd just made it in-house. REPRESENTATIVE BERKOWITZ indicated his staff member, currently out of town, had prepared it. Number 0541 CHAIRMAN GREEN explained to Representative Kott, "We're at the point of saying that we may be duplicative or in conflict with the bill we just passed out." REPRESENTATIVE PETE KOTT, sponsor of SSHB 159, replied that he couldn't comment on CSSSHB 189(JUD) because he wasn't present when it was heard. He said, "This bill makes it a violation, the ... first offense being $250, within a two-year period, and subsequent increasing fines." CHAIRMAN GREEN advised him that the previous bill was punishing only for selling tobacco to minors, with a couple of different classifications of misdemeanors. REPRESENTATIVE KOTT explained, "This does not take it to a misdemeanor level. It's just a violation and does cover not only those who sell it but those who provide it to the minor. It could be someone else of legal age, outside of a retailer or wholesaler." REPRESENTATIVE BUNDE said he didn't see one bill superseding the other or being duplicative until voted on, on the House floor. Two levels of violation were being offered. While he wouldn't expect both bills to become law, they provided the body a choice. Number 0612 REPRESENTATIVE ROKEBERG recalled, from the House Labor and Commerce Standing Committee hearing, that testimony indicated additional provisions in SSHB 159 relate to authorities' ability to revoke or suspend a business's endorsement for a violation. He believes this bill goes somewhat beyond the previous bill and has merit in those areas. Whereas he believed CSSSHB 189(JUD) focused on the sales clerk, this focuses on the business itself, because the business has a responsibility to the state and has the endorsement granted by the department to conduct that type of business. CHAIRMAN GREEN pointed out that this also covers a person. Number 0678 REPRESENTATIVE ROKEBERG said he appreciated that. On the one hand, it may be appropriate to ask legal counsel, via a conceptual amendment, to conform the two bills, if that is the sponsor's wish. Or, as Representative Bunde mentioned, the bills could be forwarded to stand on their own merits. Number 0697 REPRESENTATIVE PORTER said while Sections 1 and 2 are obviously not in conformance with CSSSHB 189(JUD), there is another element in here. Noting the existence of amendments to lower the age, he said he'd vote for those. He believes it would be inconsistent to have two military bases where smoking is legal for 19-year-olds and 20- year-olds and then to preclude them from coming into the city where other adults could smoke and they couldn't. REPRESENTATIVE PORTER stated, "So, to the extent that we have already amended ... the one section, and the major difference in the second section is the age anyway, because ... it is, by law, now a violation to possess or purchase, I would suggest we just delete Sections 1 and 2, and Section 3, if it is the will of the committee, to the current age and pass the bill." Number 0760 REPRESENTATIVE ROKEBERG suggested it would be easier to vote on his own amendment regarding the age first. He offered Amendment 1, 0- LS0287\P.1, Ford, 4/17/97, which read: Page 1, line 5: Delete "21" Insert "19" Page 1, line 6: Delete "21" Insert "19" Page 1, line 7: Delete "21" Insert "19" Page 1, line 8: Delete "21" Insert "19" Page 2, line 5: Delete "21" Insert "19" Delete "21" Insert "19" Page 2, line 15: Delete "21" Insert "19" Page 2, line 31: Delete "21" Insert "19" Page 3, line 7: Delete "21" Insert "19" Page 3, line 21: Delete "21" Insert "19" Page 3, line 22: Delete "21" Insert "19" Page 3, line 30: Delete "21" Insert "19" Page 4, line 25: Delete "21" Insert "19" Page 6, line 22, through page 7, line 1: Delete all material. Renumber the following bill sections accordingly. REPRESENTATIVE ROKEBERG explained that this lowers the age in the committee substitute from 21 to 19, which conforms it to existing state law and to CSSSHB 189(JUD). REPRESENTATIVE CROFT objected for discussion purposes. He asked what the testimony was in the House Labor and Commerce Standing Committee that caused the change from 19 to 21. Number 0827 REPRESENTATIVE KOTT explained that the change was the result of a sponsor substitute, not an amendment. The amendment offered in the Labor and Commerce Standing Committee was to return it to age 19, which he believed had failed by a vote of 5 to 1. Representative Kott said, "It's my understanding that the military establishments would conform to state law, although I would have to confirm that. ... So, I don't think you'd have that hodgepodge of being able to smoke on base and then not being able to smoke downtown." REPRESENTATIVE KOTT said the rationale for increasing it to 21 is that perhaps 3 or 4 percent of smokers begin beyond age 19, such as when they get into the workplace where they are surrounded by adults with the habit. It was just an opportunity to give them an extra year to think about it. Having said that, Representative Kott advised members that he wasn't opposed to the amendment. REPRESENTATIVE CROFT indicated he had no objection to bringing the age back down. He removed his objection. CHAIRMAN GREEN asked whether there was any further objection. There being none, Amendment 1 was adopted. REPRESENTATIVE PORTER offered as Amendment 2 the deletion of Sections 1 and 2, with renumbering as appropriate. REPRESENTATIVE CROFT objected for discussion purposes. REPRESENTATIVE KOTT stated his understanding that this would conform it to the previous bill. He explained, "The reason why we put this in, in this fashion, is that it does establish a penalty, not a flexible penalty that could be adjusted by the magistrate, since it's my understanding that on first offenses, anyone caught using tobacco products under the age are taken before the magistrate, at which point they are issued a $25 fine, even though there is up to $250. ... You know, $25 is not that much of an incentive not to do it. So, the incentive here is to establish a firm $250, no adjustment." REPRESENTATIVE PORTER said since they had reconformed everything to below age 19, he would amend his motion to delete only Section 1, not Section 2. REPRESENTATIVE BERKOWITZ suggested it would have perhaps been simpler if they'd deleted Sections 1 and 2 from the previous bill. He said there is consistency in Representative Kott's bill. CHAIRMAN GREEN noted that there was already a motion on the floor. REPRESENTATIVE PORTER asked for clarification. CHAIRMAN GREEN said, "He was suggesting that we go back to the bill we just passed and rescind their Sections 1 and 2, and leave these here; I believe that's what you had in mind." REPRESENTATIVE BERKOWITZ replied, "That's what I had in mind. And I'm not speaking for or against; I'm speaking during the discussion phase here." Number 1018 REPRESENTATIVE PORTER stated, "In my understanding, the effect of it would be that Section 2 would alter, by increasing the fine capability, not affect anything else that we did in the first bill. Deleting Section 1 would then leave in place what we did in the first bill in that whole area. Whereas Section 3, of course, is a new area." REPRESENTATIVE JAMES asked whether he was talking about the first paragraph of Section 1 or the whole section. REPRESENTATIVE BUNDE said it was the whole section. CHAIRMAN GREEN specified it was (a), (b) and (c). Number 1065 REPRESENTATIVE CROFT noted that CSSSHB 189(JUD) had just amended (d) and added "(g), (h), on through." He stated, "I don't see it affecting (a), (b) and (c) as [SSHB] 159 does." He asked Representative Porter, "If we remove Section 1, you believe that would leave all ... the misdemeanor, now, penalties for selling, and by leaving Section 2 in, would establish, for the first time, a violation for possession?" Number 1107 REPRESENTATIVE PORTER replied, "No. It is currently a violation, ... and we didn't do anything in that area in the first bill. What it would do would set up a higher level of capability of fine ... for an existing violation of possession." REPRESENTATIVE CROFT said he understood Section 2. He asked, "What you're doing on Section 1 would have what effect, as compared to if we didn't adopt your amendment?" REPRESENTATIVE PORTER explained, "By deleting Section 1, this bill then will have no impact on that particular statute, and what will go forward is what we did to that particular statute in the first bill, 189, which was change a violation to a two-stage misdemeanor." REPRESENTATIVE CROFT said, "It leaves (a), (b) and (c) alone in statute, because 189 never touched it, and we're getting rid of the section that touched it in 159. So, we'd leave (a), (b) and (c) of [AS] 11.76.100 as it stands." REPRESENTATIVE PORTER responded, "With the exception that we would change `negligently' to `knowingly', which is what we did in 189 with the amendment." He specified that they'd left in effect AS 11.76.100 in terms of what offenses it incorporates. "And it incorporates the giving or selling of tobacco to a minor," he said. "It changes the standard in that from `negligently' to `knowingly', but when you get down to the (d), which establishes what kind of an offense it is, it takes away the violation and adds the two-stage misdemeanor (indisc.). By deleting Section 1 of the bill we're considering now, we leave all of that in place." Number 1285 REPRESENTATIVE CROFT withdrew his objection. CHAIRMAN GREEN reminded members that Amendment 2 does away with Section 1 and renumbers accordingly. He asked whether there was an objection. There being none, Amendment 2 was adopted. Number 1352 REPRESENTATIVE ROKEBERG noted that page 3, lines 16 through 18, says, "A prosecution for violation of this subsection may not be brought unless a prosecution is also brought for violation of AS 11.76.100." He was double-checking to make sure this wouldn't present a conflict. REPRESENTATIVE PORTER asked whether the concern was about the word "violation." He then explained that a violation of the statute means that one has committed the offense, not that it is or isn't a "violation" or a "misdemeanor." REPRESENTATIVE ROKEBERG said this is okay; AS 11.76.100 is a "broad brush," and there is no citation of an individual subsection. Number 1414 REPRESENTATIVE BUNDE noted the sponsor's indication that underage people caught possessing tobacco receive a $25 fine, which doesn't get their attention; now, with a $250 fine, it will get their attention. He agreed tobacco use is price-sensitive. REPRESENTATIVE PORTER made a motion to move from committee CSHB 159(L&C), as amended, with individual recommendations and any attached fiscal notes. Number 1470 REPRESENTATIVE ROKEBERG objected. He directed members' attention to page 4, lines 13 through 18, which says, "(g) A person who violates this section is guilty of a violation and upon conviction ...." Noting that it relates to the endorsement and to restrictions on the sale of tobacco and tobacco products, he asked whether they need to conform this to CSSSHB 189(JUD) as well. REPRESENTATIVE CROFT replied that this is AS 11.76.107, selling without the proper endorsement or without doing the proper carding, which logically may be a violation. Number 1535 REPRESENTATIVE PORTER stated, "The offense for which this (g) section refers, I think, is a person engaging in the business failing to properly instruct their employees. I think that is sufficiently different from the other offenses of actually giving to the minor that I would not be uncomfortable with that designation. ... I don't feel strongly one way or the other. ... But we made a crime out of the offense of giving it to the minor; this is a violation for an employer not appropriately notifying his employees of something." REPRESENTATIVE CROFT indicated he'd stopped to make sure he was correct. He stated, "I read it as it being a violation to sell this without the proper license; to not demand proof of age when you should; to put your vending machine in an improper place; or to not, as Representative Porter says, train your clerks correctly. ... It would be appropriate to have those technical, if you will, violations be a violation and the actual proved selling to a minor be a misdemeanor." He said it wouldn't be inconsistent. He suggested the committee could make that choice. Number 1620 REPRESENTATIVE PORTER referred to page 3, lines 19 and 29, which says, "(d) A person engaged in the retail business of selling a tobacco product shall notify each individual employed" of all of those things. He stated, "So, the offense that we're saying is a violation is his or her failure to notify the employees that those things are offenses. If the employee violates that provision, they still are guilty of a misdemeanor, as we have established." REPRESENTATIVE CROFT agreed but pointed out that it says, "A person who violates this section"; it doesn't say "subsection". He stated, "So, it's the entire .107. ... You're right on that, but in addition, (a), (b). [Subsection] (b) says you may not sell tobacco via vending machine; so, if you do, even to someone overage, if it's in the improper place, you could commit a violation. [Subsection] (c) says a person engaged shall demand proof. If you fail to demand proof of somebody who is 26, that's a violation; if they're 19, that's a misdemeanor." REPRESENTATIVE CROFT continued, "And so, all down the line, it seems at least a reasonable distinction it's making between violating some of the technical I-put-my-machine-in-the-wrong- place, I-didn't-card-when-I-should-have, but it didn't turn out to be selling to a minor; it's just it violated these prophylactic measures, if you will. And so, in each of those, I think you can make at least a reasonable argument that violating them is somewhat lesser ... than doing the misdemeanor of selling, actually, to a minor." REPRESENTATIVE ROKEBERG asked whether that is the sponsor's interpretation. REPRESENTATIVE KOTT said that is his interpretation. Number 1743 REPRESENTATIVE ROKEBERG expressed concern about sales provisions, being consistent with the prior bill. He mentioned particular concern about vending machines. REPRESENTATIVE JAMES said the prior bill didn't deal with vending machines. CHAIRMAN GREEN agreed but noted that it is still a sale. REPRESENTATIVE ROKEBERG said, "It's a sale, right. I mean, you have an endorsed premise, you have the right to have the vending machine, but then this is a matter of control over it. ... Here, in this bill, you have a violation subject to the penalty clause only, whereas in the other bill, you'd have a misdemeanor." REPRESENTATIVE PORTER stated, "But again, if I may, Mr. Chairman, the offense is for just inappropriately having the vending machine someplace, not selling to the minor. Any situation that results in selling to the minor turns out to be a crime." REPRESENTATIVE ROKEBERG referred to page 1 of CSSSHB 189(JUD), lines 12 through 14. He then stated, "In existing law, it says, `who maintains a vending machine in violation of (a)(2) of this subsection commits a violation and upon ... a conviction is punishable by a fine of not less than $300.' Well, we got a little inconsistent, 50 bucks' worth. And the $300 is in existing statute now. But I think, Mr. Chairman, if I recall the bill sponsor's endeavor, he wanted to stair-step it, rather than just keep it a flat $300." CHAIRMAN GREEN asked whether the sponsor would entertain a friendly amendment that the first step would be $300, as it is in existing law, rather than $250, with the second step being $500. REPRESENTATIVE KOTT said he'd go along with whatever the committee wanted. REPRESENTATIVE ROKEBERG offered Amendment 3: "Page 4, line 14, deleting `$250' and adding `$300'." Number 1933 REPRESENTATIVE BERKOWITZ objected for discussion purposes. He mentioned district court and asked Anne Carpeneti about potential problems in terms of raising the amount above $250, which may entitle someone to a jury trial. ANNE CARPENETI, Assistant Attorney General, Legal Services Section, Criminal Division, Department of Law, explained, "The supreme court recently held in Dutch Harbor Seafoods that a person who could be fined for $250 under the civil provisions of ... the constitution would be given a right to a jury trial if ... the civil fine was more than $250. That has been withdrawn by the court, and we have asked them to reconsider that decision. And they are reconsidering it now. ... We are proceeding as if they hadn't made that decision at this point. But we're not very firm on that because they haven't reissued their opinion. But they did withdraw it, and it is being briefed as we speak. We don't expect a decision before fall." CHAIRMAN GREEN asked, "So, are you suggesting, then, in the prior bill, where we still have it in statute at $300, that that should perhaps be reduced?" MS. CARPENETI replied, "At this point, I wouldn't suggest that because the opinion has been withdrawn, and when it happens, I suppose, then ... we would recommend that you make adjustments. But until that decision is issued finally, I wouldn't suggest that. I personally wouldn't. Number 2092 REPRESENTATIVE BERKOWITZ said he wanted to be clear on what the Dutch Harbor Seafoods case did, as he hadn't seen it. He stated, "Anything, whether it comes under the criminal code or not under the criminal code, ... a potential fine of $250 or more would allow the defendant to seek a jury trial." MS. CARPENETI said although she hadn't read the opinion in several months, she believed it was in excess of $250. After reading that opinion, they'd concluded $250 was "safe" from having a jury trial hinge on it. REPRESENTATIVE BERKOWITZ asked whether the access to a jury trial is contingent upon the amount of potential fine, rather than the fine actually imposed. MS. CARPENETI replied, "I believe so, yes." Number 2164 REPRESENTATIVE CROFT said his concern was different. He referred to Representative Porter's amendment and noted that they'd left in (a), (b) and (c) of AS 11.76.100. He stated, "It defines where you can and cannot have a vending machine and defines, as we're looking at it, that is a violation, a fine of $300. We have a violation of $250 here. So, that's one ... inconsistency." REPRESENTATIVE CROFT continued, "The more important inconsistency, I think, is that it restricts it in different places. And so, under the provision in current law, it says, basically, `you can't sell to a minor or have a vending machine at all,' and then (b) says, `but you can have it in these situations.' So, in (b), it says you can have it on a licensed premises, generally, as long as it's as far as practical from the primary entrance and supervised. In this section, we say, `you can have it where alcoholic beverages are sold,' basically the same thing. And it has the supervision. But is says, `and inaccessible.' So, ... they both have to be supervised in a place where alcohol is served, but one has to be as far as practical from the primary entrance; if you don't do that, you get hit for $300. If it's not inaccessible to the public where the licensed public is closed, a different kind of thing, it's $250. And I guess you'd have to do all three to escape liability by these two competing sections." REPRESENTATIVE CROFT continued, "Not only that, the only other section in .100 is a break room exception. So, you can either have it on a `licensed alcohol' with these, or a break room, and this has other partially overlapping but somewhat contradictory exceptions to it." TAPE 97-77, SIDE A Number 0006 REPRESENTATIVE PORTER offered a conceptual amendment. Considering that they didn't know what the result of the jury trial issue would be, he'd feel more comfortable "moving the $300 back to $250 but adding, instead of the mandatory $250, the language that we had in the $300, `no less than'." He explained, "The $250, we've got a fine of $250, period. But in the section that we're concerned about, that's inconsistent with the $300, it says, `no less than $300,' wherever the heck it was." An unidentified speaker said he believed it was .100(d). Number 0043 REPRESENTATIVE PORTER continued, "So, what I would suggest would be that we ask the bill drafter to do two things: Make the two fines no less than $250 and the middle one there, also, no less than $500, so as to be consistent. Can you fine for more than $1,000 in a violation? I think you can. So, no less than $1,000, also. And to adopt ... the more restrictive language for the placement of the vending machine, in both areas." He indicated he didn't know whether the new or old language was more restrictive. CHAIRMAN GREEN asked whether they'd still have a conflict, as this says "no less than $250", while the prior bill says "no less than $300." He mentioned going back to the previous bill. REPRESENTATIVE PORTER replied, "We don't have to change that bill." REPRESENTATIVE ROKEBERG suggested they could easily rescind the action on the previous bill, so that it would be on the record, after Representative Porter proceeded with the current amendment. CHAIRMAN GREEN concurred. REPRESENTATIVE PORTER continued with his conceptual amendment, "sans dealing with the $300." He asked that the bill drafter adopt the more restrictive of the language for placement of the vending machine and add to the stepped-up violation fines of no less than $250, no less than $500, and no less than $1,000. Number 0310 REPRESENTATIVE CROFT objected to say he interprets the more restrictive language to be "part of one and part of another, that is, the `where alcoholic beverages are sold.'" He didn't know which was more restrictive, "not near the entrance" or "you can't get into it when it's closed." REPRESENTATIVE PORTER said the more specific one. REPRESENTATIVE CROFT suggested they should choose, because he was a little confused about which is more specific. He asked whether he could make a friendly amendment regarding that, then stated, "Regarding a place where alcoholic beverages are sold, ... both provisions would require supervision. One says, `and far away from the primary entrance.' The other says, `you can't get at them when it's closed.' Which one do we ....?" REPRESENTATIVE JAMES said, "All of them." REPRESENTATIVE CROFT asked, "You want to make all three? I guess it shouldn't be near the entrance and you shouldn't be able to ...." CHAIRMAN GREEN said he liked that. REPRESENTATIVE PORTER agreed. REPRESENTATIVE CROFT continued, "And then just one more thing, so that they know and we don't have a question come back: In the other area, it says, `or you can have one in an employee break room or other controlled area of a private workplace that is not generally considered a public place.' The bill we have in front of us says you can either have it in a factory, business, office, or other place that is not open to the public or a place that is open to the public but to which a person under the age of 21 is denied access. Which of those alternatives does the committee feel is more restrictive?" REPRESENTATIVE ROKEBERG mentioned subsection (2) on page 3, which refers to persons under the age of 21. REPRESENTATIVE CROFT noted that it is now 19. REPRESENTATIVE ROKEBERG agreed, then suggested they could also delete subsection (3), unless there is another area they'd be denied access to, which didn't have alcoholic beverages. REPRESENTATIVE CROFT responded, "I don't know." REPRESENTATIVE ROKEBERG asked whether Representative Croft was worried about the break room. REPRESENTATIVE CROFT indicated he was just worried that they say which is more specific. He said, "And I don't even know in these two." He mentioned the break room or other controlled area of a private workplace. REPRESENTATIVE ROKEBERG suggested that would be more restrictive than subsection (1). REPRESENTATIVE CROFT agreed that the statute, as it stands, "with section (2), employee break room or other controlled area of a private work place," would be the more restrictive and, therefore, the one they intend to incorporate. REPRESENTATIVE PORTER responded, "That's it. And we incorporated the best of both out of the first one." CHAIRMAN GREEN and REPRESENTATIVE CROFT agreed. REPRESENTATIVE ROKEBERG asked whether this is part of a change to Amendment 3 or another amendment. REPRESENTATIVE PORTER said it is a new amendment. CHAIRMAN GREEN named it Amendment 4. REPRESENTATIVE ROKEBERG asked whether they had adopted Amendment 3, "which raised it up to $300." CHAIRMAN GREEN said, "We did, yes." He asked for a clarification so that there was no question about Amendment 4. REPRESENTATIVE PORTER explained that the noncontroversial part is what they are doing to subsection (c), beginning at page 1, line 13, and continuing to page 2, lines 1 and 2, adding "no less than" in front of the $250 figure, the $500 figure, and the $1,000 figure. In addition, they are adopting, in the placement of the vending machine, "both languages, the existing statute and the bill, that would end up saying, `not available after closing and as far away as practical,' or whatever the wording is, `from the entrance.'" CHAIRMAN GREEN commented, "You can't access it." REPRESENTATIVE CROFT said, "Right. And that's for ... places where alcoholic beverages are sold. And the more restrictive other definition, which is in place of (1) and (2) on page 3, lines 4 through 7, we used the language from the current statute, which is 11.76.100(b)(1), (b)(2), `in an employee break room or other controlled area of a private workplace that is not generally considered a public workplace', and that that's more restrictive than (1) and (2) in ... those sections." REPRESENTATIVE CROFT removed his objection. CHAIRMAN GREEN asked whether there was any further objection. There being none, Amendment 4 was adopted. REPRESENTATIVE ROKEBERG made a motion to rescind Amendment 3. There being no objection, it was so ordered. REPRESENTATIVE ROKEBERG made a motion to temporarily table SSHB 159 for the purposes of rescinding their action on SSHB 189 and making a specific amendment. There being no objection, it was so ordered. SSHB 189 - RESTRICT TOBACCO SALES CHAIRMAN GREEN announced that the committee would again hear Sponsor Substitute for House Bill No. 189, "An Act relating to sale of tobacco and tobacco products; and providing for an effective date." REPRESENTATIVE ROKEBERG made a motion to adopt an amendment to page 1, line 14, to delete "$300" and insert "$250". There being no objection, it was so ordered. Number 0835 REPRESENTATIVE ROKEBERG made a motion to move 0-LS0711\F, Ford, 4/21/97, as amended, from the committee. There being no objection, CSSSHB 189(JUD) moved from the House Judiciary Standing Committee.
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