Legislature(2001 - 2002)

04/21/2001 11:24 AM JUD

Audio Topic
* first hearing in first committee of referral
+ 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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