Legislature(2001 - 2002)

04/23/2001 01:15 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 228 - SALE OF TOBACCO PRODUCTS                                                                                             
                                                                                                                                
Number 1427                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG  announced that  the last  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 1371                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG made  a motion to  adopt Amendment  1, which  read                                                              
[original punctuation provided]:                                                                                                
                                                                                                                                
     Page 7, line 4:                                                                                                            
          Delete "The"                                                                                                          
        Insert "A peace officer, or an agent or employee                                                                        
     of the"                                                                                                                    
                                                                                                                                
           Following "Department of Health and Social                                                                           
     Services":                                                                                                                 
         Insert    "who    is   authorized    by    the                                                                         
     commissioner of health and social services to enforce                                                                      
     this section,"                                                                                                             
                                                                                                                                
     Page 7, lines 6 - 7:                                                                                                       
         Delete "Each day a violation continues after a                                                                         
     citation for the violation has been issued constitutes                                                                     
     a separate violation."                                                                                                     
                                                                                                                                
     Page 7, line 14:                                                                                                           
          Delete "the issuance of"                                                                                              
          Insert "issuing to its agents or employees"                                                                           
                                                                                                                                
     Page 7, line 18:                                                                                                           
          Delete "department shall deposit the"                                                                                 
                                                                                                                                
          Following "citation":                                                                                                 
               Insert "shall be deposited"                                                                                      
                                                                                                                                
     Page 7, line 21:                                                                                                           
          Delete "The department may not dispose of a"                                                                          
          Insert "A"                                                                                                            
                                                                                                                                
     Page 7, line 22, following "issuance":                                                                                     
          Insert "may not be disposed of"                                                                                       
                                                                                                                                
     Page 7, line 24, following "by":                                                                                           
          Insert "an agent or employee of"                                                                                      
                                                                                                                                
     Page 7, line 25, following "copies of":                                                                                    
          Insert "such"                                                                                                         
                                                                                                                                
     Page 7, line 27, following "citation":                                                                                     
          Insert "issued by its agent or employee"                                                                              
                                                                                                                                
Number 1347                                                                                                                     
                                                                                                                                
JOHN MANLY, Staff to Representative John Harris, Alaska State                                                                   
Legislature, on behalf of Representative Harris, sponsor,                                                                       
explained that the  Department of Health & Social  Services (DHSS)                                                              
prepared Amendment 1.   At the previous hearing on  HB 228, it was                                                              
suggested  that  "sideboards"  should  be  placed  on  the  DHSS's                                                              
authority to  issue citations for  selling tobacco to minors.   He                                                              
offered that Amendment  1 would provide those sideboards;  it more                                                              
clearly defines  who exactly  would be  authorized to  issue these                                                              
citations.   The person has to  be authorized by  the commissioner                                                              
of the DHSS.   He also pointed  out that the portion  of Amendment                                                              
1  affecting  line 6-7  deletes  a  provision that  the  committee                                                              
considered unnecessary  since it refers to citations  issued under                                                              
the criminal statute, Title 11.                                                                                                 
                                                                                                                                
Number 1199                                                                                                                     
                                                                                                                                
ELMER LINDSTROM,  Special Assistant,  Office of the  Commissioner,                                                              
Department  of Health  &  Social Services  (DHSS),  said that  the                                                              
DHSS has  no objections  to deleting that  provision from  page 7,                                                              
lines 6-7.  He  added that the remainder of Amendment  1 is merely                                                              
conforming  language that  changes  the voice  of the  legislation                                                              
from  an  active  one to  a  passive  one.   With  regard  to  the                                                              
sideboard stipulating  that aside  from a  peace officer,  only an                                                              
authorized agent  or employee of  the DHSS could  issue citations,                                                              
he  noted that  similar authority  exists in  other statutes,  for                                                              
example, those pertaining to park employees.                                                                                    
                                                                                                                                
CHAIR  ROKEBERG  asked  whether  any  special  training  would  be                                                              
required in order for a person to become a "tobacco cop."                                                                       
                                                                                                                                
Number 1154                                                                                                                     
                                                                                                                                
EDWIN  J. SASSER,  Tobacco  Enforcement Coordinator,  Division  of                                                              
Public  Health  (DPH),  Department  of Health  &  Social  Services                                                              
(DHSS), mentioned  that the provision being deleted  via Amendment                                                              
1  dealt  with the  issue  of  vending  machines being  moved  and                                                              
cigarettes  not   being  locked  up.    Regarding   the  sideboard                                                              
pertaining  to  who will  be  authorized  to issue  citations,  he                                                              
explained  that the  language  inserted in  the  first portion  of                                                              
Amendment  1 is  patterned  after language  in  AS 45.75.131  that                                                              
gives  authority  to  issue  citations   related  to  weights  and                                                              
measures violations.   In none of the language  already in statute                                                              
relating to  issuing citations, he  added, is there  any reference                                                              
to  training  requirements.    He  suggested,  however,  that  the                                                              
language  stipulating  that  the  commissioner of  the  DHSS  must                                                              
authorize the agent  or employee does imply  training requirements                                                              
and standards.   He offered  that it would  not be hard  to expand                                                              
any Memorandum  of [Understanding]  (MOU) that  the DHSS  has with                                                              
the  Department  of  Public  Safety   (DPS)  to  include  specific                                                              
standards for any agent or employee selected to issue citations.                                                                
                                                                                                                                
Number 1045                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether   there  were  any  objections  to                                                              
Amendment 1.  There being no objection, Amendment 1 was adopted.                                                                
                                                                                                                                
CHAIR ROKEBERG mentioned  a concern regarding the  potential for a                                                              
disgruntled  employee   to  subject  the  endorsement   holder  to                                                              
cumulative  fines  and  penalties  simply by  continuing  to  sell                                                              
tobacco products to minors.                                                                                                     
                                                                                                                                
MR. MANLY  said  that he did  not know  whether any  of the  cases                                                              
that   have  been   prosecuted   thus  far   have  included   such                                                              
circumstances.  Most  of the time the sale is  inadvertent or done                                                              
in ignorance.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  MEYER opined  that  it would  be hard  for such  a                                                              
situation to  occur; the  employee would have  to know  in advance                                                              
that  he/she  was  selling  to an  undercover  minor  in  a  sting                                                              
operation.                                                                                                                      
                                                                                                                                
MR.  SASSER said  that  he is  not aware  of  any such  situations                                                              
occurring,  nor  was  he  aware  of any  state  that  has  adopted                                                              
language that  would allow such  a situation to be  an affirmative                                                              
defense.                                                                                                                        
                                                                                                                                
MR.  LINDSTROM,  on the  issue  of  penalties to  the  endorsement                                                              
holder,   noted  that   current   statute   stipulates  that   the                                                              
endorsement may  be suspended  up to 45  days for a  first offense                                                              
and up  to 90  days for  a subsequent  offense occurring  within a                                                              
24-month period.   On  the issue of  compliance, he  remarked that                                                              
surveys done  last September indicate  that on a  statewide basis,                                                              
minors  were able  to purchase  tobacco up  to 34  percent of  the                                                              
time  notwithstanding  all  the preventative  measures  that  have                                                              
been taken  to date.   He  added that  this noncompliance  rate is                                                              
unacceptably high.                                                                                                              
                                                                                                                                
REPRESENTATIVE  COGHILL pondered  whether  the high  noncompliance                                                              
rate is "a vendor responsibility."                                                                                              
                                                                                                                                
CHAIR ROKEBERG said  he has received a letter from  Costa Alton of                                                              
C.J.  Enterprises, expressing  the  concern that  Section 8(l)  is                                                              
unfair to the  owner of vending machines.  Chair  Rokeberg offered                                                              
the  point that  if  there  is a  problem  with one  machine,  the                                                              
people at  that location who  are responsible for  supervising the                                                              
vending machine  should be subject  to the penalties,  rather than                                                              
the vending  company.  Section8(l)  stipulates "if  an endorsement                                                              
... for the sale  of tobacco products through  vending machines is                                                              
suspended  or revoked,  the person  may not sell  ... tobacco  ...                                                              
products  through any  of the  person's  other vending  machines".                                                              
He suggested  that this  provision should be  altered to  apply to                                                              
the  owner  of the  establishment  where  the vending  machine  is                                                              
located.                                                                                                                        
                                                                                                                                
MR.  SASSER  clarified  that  this provision  does  apply  to  the                                                              
endorsement holder  of the establishment  in which the  machine is                                                              
placed.   He  said  that  the only  time  the endorsement  of  the                                                              
vending company  can be  suspended is  if the company  negligently                                                              
places the machine in an unsuitable location.                                                                                   
                                                                                                                                
CHAIR ROKEBERG called an at-ease from 2:46 p.m. to 2:55 p.m.                                                                    
                                                                                                                                
Number 0382                                                                                                                     
                                                                                                                                
CHAIR ROKEBERG made a motion to adopt Conceptual Amendment 2:                                                                   
                                                                                                                                
     Section  8, subsection  (l)  should conform  ... to  the                                                                   
     concept  that  the  vending  machine  company's  tobacco                                                                   
     business  license/endorsement can  not be suspended  for                                                                   
     one  violation.  However,  the machine  on the  premises                                                                   
     could be removed  or immobilized; the operator  would be                                                                   
     prohibited   from  operating   it   at  the   particular                                                                   
     location, not all of his locations.                                                                                        
                                                                                                                                
CHAIR  ROKEBERG explained  that  with the  adoption of  Conceptual                                                              
Amendment  2, a  violation would  result in  the machine  operator                                                              
being suspended  from operating  that particular  machine  at that                                                              
location,  and penalties  would also  be imposed  on the owner  of                                                              
the establishment for a lack of supervision at that location.                                                                   
                                                                                                                                
REPRESENTATIVE   COGHILL   remarked  that   anyone   who  has   an                                                              
endorsement,  whether  vending  company  or  establishment  owner,                                                              
should  be aware  of the  laws regarding  sale to  minors and  the                                                              
possible penalties for violations.                                                                                              
                                                                                                                                
MR. MANLY  noted that  there is  a provision  in HB 228  requiring                                                              
that  vendor education  materials accompany  the endorsement  when                                                              
it is sent out.                                                                                                                 
                                                                                                                                
TAPE 01-73, SIDE A                                                                                                              
Number 0001                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether  "they"  would  be  subject  to  a                                                              
monetary   fine  in   addition  to   having  his/her   endorsement                                                              
suspended  for  having  a  vending  machine  in  an  inappropriate                                                              
location.                                                                                                                       
                                                                                                                                
Number 0089                                                                                                                     
                                                                                                                                
CATHERINE   REARDON,  Director,   Central   Office,  Division   of                                                              
Occupational  Licensing,   Department  of  Community   &  Economic                                                              
Development  (DCED), explained  that having  a vending machine  in                                                              
an inappropriate  location is  a crime under  AS 11.76,  and would                                                              
therefore be punishable.                                                                                                        
                                                                                                                                
MR.  SASSER added  that AS  11.76.100(d) provides  that a  vending                                                              
machine operator  who negligently  places  a vending machine  will                                                              
be subject  to a  $300 fine.   He  noted that  this fine does  not                                                              
increase for multiple violations.                                                                                               
                                                                                                                                
Number 0177                                                                                                                     
                                                                                                                                
CHAIR  ROKEBERG  asked  whether   there  were  any  objections  to                                                              
Conceptual  Amendment 2.   There  being  no objection,  Conceptual                                                              
Amendment 2 was adopted.                                                                                                        
                                                                                                                                
Number 0234                                                                                                                     
                                                                                                                                
REPRESENTATIVE MEYER  moved to report  CSHB 228(L&C),  as amended,                                                              
out  of   committee  with   individual  recommendations   and  the                                                              
accompanying  fiscal  notes.    There  being  no  objection,  CSHB
228(JUD)   was  reported   from  the   House  Judiciary   Standing                                                              
Committee.                                                                                                                      

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