Legislature(2001 - 2002)
04/21/2001 11:24 AM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 228 - SALE OF TOBACCO PRODUCTS Number 1501 CHAIR ROKEBERG announced that the next order of business would be HOUSE BILL NO. 228, "An Act relating to the offense of selling or giving tobacco to a minor, to the accounting of fees from business license endorsements for tobacco products, to the disclosure of certain confidential cigarette and tobacco product information, to notification regarding a cigarette manufacturer's noncompliance with the tobacco product Master Settlement Agreement, to business license endorsements for sale of tobacco products, to citations and penalties for illegal sales of tobacco products; and providing for an effective date." [Before the committee was CSHB 228(L&C).] Number 1477 JOHN MANLY, Staff to Representative John Harris, Alaska State Legislature, presented HB 228 on behalf of Representative Harris, the sponsor. He explained that Representative Harris, as chairman of the House Finance Subcommittee on the Department of Health and Social Services (DHSS) budget, became quite alarmed to learn that Alaska is going to lose $1.5 million of a substance abuse grant from the federal government as a penalty because too many Alaskan merchants sell cigarettes to kids. He said HB 228 attempts to bolster the state's efforts to stop those sales. MR. MANLY noted that because of changes that occurred in the House Labor and Commerce Standing Committee (HL&C), the fines have been reduced and have been relocated from the criminal statutes to the civil statutes. He opined that "the hammer" for a merchant who sells tobacco [products] to minors is the suspension of his/her ability to sell tobacco products at all. He noted that current law merely provides for a $300 fine for the clerk who sells a tobacco product to a minor. The current version of HB 228 includes an additional $300 fine for the endorsement holder and a 20-day suspension of the tobacco endorsement. He confirmed that the fine for the clerk remains $300 regardless of how many repeat offenses occur, but the fine for the endorsement holder and the length of time the endorsement is suspended increases with each repeat offense: $300 for a first offense, $500 for a second offense, $1,000 for a third offense, and $2,500 for a fourth [or subsequent] offense. MR. MANLY relayed that the sponsor is interested in affecting any ongoing sales to minors by these businesses; thus the suspension of the endorsements is really the hammer in HB 174. CHAIR ROKEBERG mentioned that he is concerned that the fines proposed by HB 228 are too high. REPRESENTATIVE MEYER noted that the problem is one of preventing kids from getting tobacco products. He remarked that Anchorage has improved but could improve more, in addition to making improvements in the rural areas. He said putting all the tobacco products behind the counter is going to help prevent access by minors, but more should also be done. Number 1087 REPRESENTATIVE OGAN relayed that some minors whom he knows have informed him that they are able to simply go into stores and purchase tobacco products; hence, enforcement is often lacking. Notwithstanding this and the fact that $1.5 million of federal funds will be lost because of these violations, he said he still has concerns regarding the expansion of [the DHSS's] enforcement authority. Number 0992 ELMER LINDSTROM, Special Assistant, Office of the Commissioner, Department of Health & Social Services (DHSS), explained that Section 10 gives authority to the DHSS to issue citations. Conceptually, what [the DHSS] is doing currently and wants to continue to do is contract with local law enforcement agencies to undertake this activity. Historically, local law enforcement has not been aggressive in enforcing the tobacco laws; they have limited resources and have had to set priorities, and this issue, unfortunately, has not risen to the top of their list. Part of the funding provisions of HB 228 will go towards continuing and increasing the contracts with local law enforcement so that they can do "undercover buys" and other enforcement activities. He noted, however, that there will be locations in the state where either there is no local law enforcement or local law enforcement (for whatever reason) is unable or unwilling to participate; yet the state is still going to have an obligation under the federal law to do enforcement activities in all areas of the state. He explained that Section 10 is a fall back provision that will give [the DHSS], in the absence of local law enforcement, the authority to initiate its own enforcement activities. It is the desire of [the DHSS] to use persons who have a law enforcement background in order to ensure that these activities are undertaken appropriately. Number 0862 EDWIN J. SASSER, Tobacco Enforcement Coordinator, Division of Public Health (DPH), Department of Health & Social Services (DHSS), noted that he himself is a retired law enforcement administrator. He said he is currently putting together contracts, and speaking and negotiating with 15 different police chiefs across the state. There are agreements and contracts ready to go for this period; he noted that this was also done last year, very successfully, with three jurisdictions. He said he anticipates that [these contracts] will grow, and thus a majority of activity for the enforcement of tobacco laws (especially those related to selling to minors) will be through the contracts that [the DHSS] will have with local police. MR. SASSER, too, noted that there are a number of areas that either have no local police or, for one reason or another, the local police don't want to get involved personally. However, through the meetings that he is having with the police chiefs, he has been assured that if he is in their area and lets them know that he is there and working, they'll provide support and backup should he need it. He explained that in areas of the state that do not have borough police protection, since the Department of Public Safety (DPS) is tasked with other things, he could be the only person in those areas enforcing the tobacco laws. He noted that he is an experienced officer and thus feels comfortable in that role, and that he has participated in this type of activity with the full knowledge and support of whatever local agencies are in those areas. REPRESENTATIVE OGAN said he is wondering what tactics are used to enforce tobacco laws in rural villages where new faces in town are closely scrutinized. MR. SASSER replied that it may very well be the case that new people stand out, but a survey conducted last year indicated that in 61 percent of the cases, those new faces were sold to anyway. He said "we" don't always use new faces; sometimes kids who live in the communities are used for "control buy" activities. Whatever the case, whether the people were recognized as local folks or not, the "buy" rate in the rural environment is still nearly two out of three successful attempts. The areas with the most contract activity with local law enforcement (for example, in the Fairbanks/Northstar areas) are down to a 21.5 [percent] noncompliance rate, with the goal being a 20 percent noncompliance rate. Statewide, he noted, the noncompliance rate is 33-34 percent, which means "we" still have a ways to go in most areas of the state. Number 0630 REPRESENTATIVE MEYER asked Mr. Sasser whether he checks with village government before proceeding with enforcement activities, and whether there is any animosity regarding these activities. MR. SASSER said he has not run into any animosity, although most of the activity in the villages thus far has merely been survey activity. He added that he has been working with Volunteer Public Safety Officers (VPSOs), that he has a memorandum of [understanding] (MOU) with the courts and the DPS going into place, and that he always touches base with the local police. He explained that his goal in this process is to take the time on the front end to put together a system that works for years to come. He noted that in the past, [the DHSS] has "done some hurry-up-collect-data" to satisfy federal reporting requirements. From a cost accounting standpoint and an effectiveness standpoint, it makes the most sense to merge the compliance and data collection process with enforcement whenever possible; it doesn't make any sense to buy two tickets to New Stuyahok, for example, when one will suffice. He said a goal is to combine enforcement with the data collection that the "feds" require and tie all of that into the vendor [advertisement] and the other pieces of tobacco control; enforcement is just one small piece of tobacco control but it's the piece that his contracting officers and he can do something about. CHAIR ROKEBERG asked Mr. Sasser to comment on the reluctance of local law enforcement officers in small communities to enforce the tobacco laws because of a fear of retribution. MR. SASSER, after noting that he is no expert on this topic, said he has spoken with many VPSOs who have indicated that there are a number of laws that they are reluctant to administer because of the nature of a small community. There are also, in all fairness, a number of laws that they are not equipped to deal with; putting together an operation that involves employing an underage confidential informant to participate in an enforcement activity is one of those. As far as the larger departments go, he added, the argument that he hears is that felonies take priority over misdemeanors and misdemeanors take priority over violations; without "emphasis-patrol highway- dollars," certain types of "minor" violations would not be pursued. He added that this method of funding is an accepted practice in law enforcement. Number 0316 CHAIR ROKEBERG said that he, too, has concerns about giving the DHSS the legal authority to issue citations for violations, which are one step below criminal activity. He asked whether the [DHSS] would have any objections to an amendment clarifying that [the DHSS] is contracting with local law enforcement and/or using designated personnel who are properly trained in determining probable cause and other legal issues. MR. SASSER opined that neither he nor another appropriate agent from the DPH would necessarily need to meet the "police standards equivalency". He pointed out that in most cases, [the DHSS} will be contracting with local law enforcement, and under the authority granted by HB 228, will be able to use existing officers outside of their jurisdictions once some procurement difficulties are overcome. He noted that this is a narrow band of authority and involves training personnel - similar to the Food and Drug Administration (FDA) training - prior to investing them with the authority to cite. He offered to place any appropriate requirements within the protocols that he has established. CHAIR ROKEBERG noted that currently there are no statutory "sideboards" included in HB 228. He said he would like to see an amendment that will narrow the list of who will have the authority to give out citations. MR. LINDSTROM said that conceptually [the DHSS] agrees; along with the Department of Law (DOL), [the DHSS] will try to work up an appropriate amendment. Number 0072 DWAYNE D. JONES, Anchorage Police Department (APD), testified via teleconference and explained that he is taking over the tobacco enforcement section of the APD. He noted that when they went into rural areas, the minors used for enforcement purposes did not, unfortunately, have any problems purchasing tobacco products from local stores. TAPE 01-71, SIDE A Number 0001 MR. JONES noted that the suspension of the tobacco endorsement is "a pretty big thing for these businesses out here." He mentioned a desire to bring the frequency of identification (ID) checks for the sale of tobacco products up to the same level as for the sale of alcohol. MR. LINDSTROM, in response to questions regarding page 7, pointed out that the language stating, "Each day a violation continues after a citation for a violation has been issued constitutes a separate violation" refers to the requirements for signage - the sign that says no one can purchase tobacco products if they are under the age of 19 - and to the law relative to "loosies." MR. SASSER added that this provision could also apply to an inappropriately placed vending machine. He explained that if a business receives a citation but does not respond, each additional day constitutes a separate violation. CHAIR ROKEBERG pointed out that the language also refers to the statute pertaining to the sale of tobacco products to minors and is redundant. MR. SASSER replied, "I don't know why [AS 11.76.]100 is included there. CHAIR ROKEBERG requested that this provision be "cleaned up by Monday." Number 0380 DAN BRANCH, Assistant Attorney General, Commercial Section, Civil Division (Juneau), Department of Law (DOL), explained that this language on page 7, lines 6-7, does refer to violation of Title 11 that involves the placement of vending machines. Current statute says that a vending machine cannot be placed in a location that is generally accessible to someone under the age of 19. If law enforcement issues a citation, and the vending machine is not moved, law enforcement can come back and issue another citation. CHAIR ROKEBERG suggested that any cumulative effect of those penalties should be clarified via an amendment. He said he did not mind penalizing someone for selling tobacco products to minors, but opined that if it is simply a case of having a vending machine inadvertently placed in the wrong location, it is not fair to impose the same high penalties. [HB 228 was held over.]
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