Legislature(2001 - 2002)
04/23/2001 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.