Legislature(1997 - 1998)
04/16/1997 03:20 PM House L&C
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SSHB 159 - TOBACCO PURCHASE, POSSESSION, SALE, ETC. Number 0517 CHAIRMAN ROKEBERG 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 0555 REPRESENTATIVE BILL HUDSON made a motion to adopt 0-LS0287\L, Ford, 4/14/97, as a work draft. There being no objection, that version was before the committee. Number 0572 REPRESENTATIVE PETE KOTT, sponsor, addressed changes in the proposed committee substitute. Referring to page 4, line 8, he said the $100 was changed to $250 to add internal consistency. Page 4, line 3, added a new subsection (f) to prohibit the sale of loose cigarettes, an idea suggested by Chairman Rokeberg. On page 3, line 2, the phrase, "for consumption on the licensed premises", which appeared in version K immediately after "sold", was deleted. CHAIRMAN ROKEBERG asked the reason for that. REPRESENTATIVE KOTT said current law permits vending machines in package stores; this retains the present law. Page 5, line 15, adds the language, "and may not apply for a license endorsement under AS 43.70.075 under a different name." As discussed at the last hearing, they didn't want a person applying for another endorsement under a different name if that person's license was suspended. Number 0741 REPRESENTATIVE KOTT said in Section 9 on page 6, the phrase, "ADOPTED UNDER AS 43.70.090", was deleted. In version K, this phrase occurred three times, whereas in version L, it no longer occurs. The statute in question, AS 43.70.090, authorizes the promulgation of regulations to determine and collect fees. By removing this limitation, a violation of any regulation implementing Section 9 of the bill may be used as an aggregating factor in imposing a suspension or revocation. This change was requested by the Division of Occupational Licensing; someone from that division had testified at the previous hearing. REPRESENTATIVE KOTT provided the rationale for not adopting other suggestions made at the previous hearing. They had gone through the tapes and tried to cover some of the issues brought forth. Several people had suggested that the language should be removed which makes it a violation for minors to attempt to purchase tobacco, or that they should provide a law enforcement exemption. However, to his knowledge, present law does not contain such an exemption. Neither does he believe they should encourage kids to become undercover operatives. Number 0884 CHAIRMAN ROKEBERG asked whether that was the "Synar amendment" on the federal statute. He requested clarification. REPRESENTATIVE KOTT said he wasn't familiar with that, but if it was covered under federal law, it wouldn't change under state law. CHAIRMAN ROKEBERG, noting that Anchorage had adopted ordinances, asked whether anything in the bill would prohibit a local municipality from doing that. REPRESENTATIVE KOTT said no, then specified it was a weak no. CHAIRMAN ROKEBERG requested that Representative Kott check on that. Number 0929 REPRESENTATIVE KOTT said there were suggestions that fees collected be rebated to the municipalities. He explained, "We already have some intent language in here that would provide funding, based on legislative approval, back to municipalities and boroughs. And the fee structure, as it currently exists, as we were discussing it in relationship with the ABC Board, just wouldn't work. There's a total of about $66,000 generated in license fees. And if you divided that among the municipalities and boroughs equally, you probably wouldn't have enough for one-tenth of an enforcement officer. So, that in and of itself really wasn't worthy of further evaluation." Number 0973 CHAIRMAN ROKEBERG asked: What about the fines? REPRESENTATIVE KOTT said the fines themselves would be reimbursed to the municipalities, stating, "That's, again, why we have the $8,000 court note, to determine what municipalities collected and what would be rebated." He emphasized that there is no guarantee of that going back to the municipalities. However, the intent language ensures that the legislature understands the reason it was inserted in the bill in the first place. Number 1002 REPRESENTATIVE BRICE referred to the change from 19 to 21 years of age. He asked whether that action was taken in the last committee. REPRESENTATIVE KOTT said it was not new language. CHAIRMAN ROKEBERG said they had adopted that in the committee substitute. Number 1020 REPRESENTATIVE RYAN asked whether Representative Kott had thought about the administrative costs of collecting these fines through the state instead of having a direct reimbursement to the municipality from the court system. REPRESENTATIVE KOTT replied that they had not considered it, nor did he believe there would be a tremendous administrative cost associated with that reimbursement, according to discussions they had with the division. REPRESENTATIVE KOTT addressed Chairman Rokeberg and Representative Ryan regarding whether clerks under the age of 21 could sell tobacco on behalf of their employers. He said the present law does not contain an express exemption. In discussions with Mike Ford, the drafting attorney, Mr. Ford didn't feel that the courts would construe these activities as possession, as that word is used in this bill. Mr. Ford believed the court would give that a narrow interpretation but said it would be all right to clarify that in the bill, which a proposed amendment does. Number 1118 REPRESENTATIVE KOTT said Representative Kubina had questioned the wisdom of including mail orders and had asked whether some proof of age should be required in such transactions. Representative Kott stated, "We believe that this would be unfair, especially as it relates to rural Alaska, out in the bush, where mail orders are often done." He indicated there was another amendment that might tighten it up, under which an initial transaction would require that a photo identification showing the person's age be faxed to the wholesaler. CHAIRMAN ROKEBERG asked whether there was a federal law relating to using the mail to distribute tobacco products to underage people. REPRESENTATIVE KOTT said no, not that he was aware of. He had looked at a catalog two days before, and there was no requirement to send in photo identification. However, there was a signature block and check-off block, and he believed most mail orders require a person to be 21 years of age. That was the extent of the requirement for potential purchasers. REPRESENTATIVE KOTT mentioned a question by the chairman as to whether the exception to the general prohibition on vending machines covered by page 2, line 31, was redundant. Representative Kott said there is no redundancy. This covers places that exclude persons under age 21, such as smoking clubs. It is not the same as the next exception concerning places where alcohol is sold. CHAIRMAN ROKEBERG acknowledged the three proposed amendments that Representative Kott had handed out. REPRESENTATIVE BRICE offered Amendment 1, 0-LS0287\L.1, Ford, 4/16/97, which read: Page 5, line 16: Delete "endorsement under AS 43.70.075" Insert "under AS 43.50.010 - 43.50.180" Page 6, following line 20: Insert a new bill section to read: "*Sec. 10. AS 43.70.075(e) is amended to read: (e) If a person who receives an endorsement under this section has multiple retail outlets, a suspension imposed under (d) of this section applies only to the retail outlet in which the violation occurs. If a person receives a suspension under (d) of this section, the person may not apply for a license endorsement under this section under a different name." Renumber the following bill sections accordingly. CHAIRMAN ROKEBERG objected for purposes of discussion. REPRESENTATIVE KOTT explained that Amendment 1 was basically what had been discussed by the division. If one retail outlet was suspended, they would not want that outlet to apply for another endorsement under a different name. This tightens it up. Otherwise, there could be multiple endorsements from the same retail establishment, and the suspension or revocation would serve no real purpose. Number 1296 CHAIRMAN ROKEBERG removed his objection and asked whether there were further objections. There being none, Amendment 1 was adopted. REPRESENTATIVE BRICE made a motion to adopt Amendment 2, 0- LS0287\L.2, Ford, 4/16/97, which read: Page 2, following line 13: Insert a new subsection to read: "(c) In this section, "possess" does not include possession for the purpose of retail sale by a person under 21 years of age who holds a license endorsement under AS 43.70.075 or who is the employee of a person who holds a license endorsement under AS 43.70.075." Number 1305 An unidentified member objected for discussion purposes. REPRESENTATIVE KOTT explained that this amendment relates to the drafting attorney's suggestion that they could make it clear to the courts that for a person under age 21 who was working for a retail establishment, selling tobacco products of itself would not be considered possession and a violation of the statute. Currently, a person who is 18 years old may sell tobacco products. CHAIRMAN ROKEBERG asked whether there was any objection. He then noted that the objection was removed and Amendment 2 was adopted. Number 1365 REPRESENTATIVE HUDSON said he was moving Amendment 3 for discussion purposes. Amendment 3, 0-LS0287\L.3, Ford, 4/16/97, read: Page 2, line 25, following "order": Insert ", and the person selling the tobacco product has a copy of the purchaser's photo identification indicating that the purchaser is at least 21 years of age" REPRESENTATIVE KOTT explained that Amendment 3 requires that photo identification be supplied when a purchaser orders by mail. Number 1400 REPRESENTATIVE JOHN COWDERY mentioned the possibility of it not being that person's identification, saying he didn't know how to correct that. REPRESENTATIVE KOTT acknowledged there are several ways to get around the under-age prohibition; this just tightens it up. He believes a photo identification stating the person's age would at least give the vendor more assurance that the mail-order purchaser is of legal age. REPRESENTATIVE RYAN suggested it would take the liability off the vendor, who could produce a photocopy of the identification and state that he or she had acted in good faith. Number 1446 REPRESENTATIVE HUDSON made a motion to adopt Amendment 3. There being no objection, it was so ordered. Number 1462 CHAIRMAN ROKEBERG called a brief at-ease at 3:50 p.m. He called the meeting back to order at 3:51 p.m. CHAIRMAN ROKEBERG expressed concern about the age of 21, having been drafted as a youth into the U.S. Army, where they provided "gags" in C-ration boxes overseas. Number 1502 REPRESENTATIVE KOTT said they no longer do that. The same situation had been discussed when the age for legally drinking was raised to 21. He believes the military establishments would conform, as they did then. He also believes the state has an interest in protecting the public health, and by elevating this to 21, it gives those contemplating smoking an opportunity to reevaluate it. He suggested at some point the federal government would probably elevate the age for possession to 21 as well. Number 1551 CHAIRMAN ROKEBERG asked how many military personnel now serve in Alaska. REPRESENTATIVE KOTT said there are approximately 8,500 active-duty personnel. He suggested that in the military, both nationwide and statewide, tobacco use is being deglamorized as much as possible. He estimated that of those 8,500, ten percent use tobacco. Number 1612 REPRESENTATIVE RYAN said having been employed at a military installation for some time, he found the general policy is that the military makes its people adhere to the laws of the local community in which they are stationed, as well as to the uniform military justice code. If they enact this legislation, Representative Ryan believes the commanders would instruct their troops accordingly. Number 1645 REPRESENTATIVE BRICE said he didn't see any grandfather clause to provide, for example, for a 20-year-old smoker who will suddenly be made underage. Recalling that there had been discussion of that relating to alcohol consumption, he asked whether there had been similar discussion about this. REPRESENTATIVE KOTT replied, "In my opinion, and it's strictly that, there was no discussion on grandfathering-in anyone. There is an effective date on the bill, obviously, and someone who has been smoking a relatively short period of time, hopefully, if they've been abiding by the laws as they currently exist, should be able to kick the habit. And there's a number of tools out there that will help." He commented on the chairman's efforts to quit. Number 1714 REPRESENTATIVE COWDERY said there are people age 14 or 15 who are addicted to "crack," and that didn't mean they should adjust laws to make that legal. He said no bill is perfect. This is a health bill, to try to keep youth from starting to smoke. "And the ones that have started early, God bless them, I guess," he said. He himself had begun at age nine, smoked for 40 years, and quit. He believes this goes a long way towards solving the concerns that many people have of youths' smoking. Number 1766 REPRESENTATIVE HUDSON asked the justification for raising the age from 19 to 21 in Section 2. He also had served in the military. He expressed concern that many young men and women are emancipated by age 18 and out of school. He asked whether they may be trying to over-protect that upper-age group of young people. Number 1844 REPRESENTATIVE KOTT said the main thought was to conform it to essentially the same standards as for alcohol use. Based on what he had heard, he believes that a small percentage of young people start smoking once they leave school and get into another environment. This would at least postpone that potential for a couple of years, providing an opportunity to perhaps make a more rational decision. Number 1838 REPRESENTATIVE HUDSON asked whether there is any bar in the federal law to people this age smoking. REPRESENTATIVE KOTT replied, "We can be more stringent but not less." REPRESENTATIVE HUDSON asked what the federal law is currently. REPRESENTATIVE KOTT said he wasn't sure. He thought it was under 19. Number 1857 REPRESENTATIVE SANDERS commented that had this law been in effect 50 years ago, his mother might still be alive. She had her first cigarette at age 20 and died of emphysema at 74. REPRESENTATIVE KOTT recounted that he had joined the U.S. Air Force at age 19. The drill instructor marched them around for a couple of hours and then said those who smoked could fall out, whereas those who didn't had to stand at-ease in formation. The best way to get under the shade was to light a cigarette, and that was his introduction to tobacco products. He suggested if the law was 21, he wouldn't have had his initial contact. CHAIRMAN ROKEBERG said he started at age 12 or 14 and had smoked for more than 40 years. He mentioned movie stars and sports celebrities who had influenced him. Number 1949 CHAIRMAN ROKEBERG offered a conceptual amendment to change the age from 21 to 19, the age of majority in Alaska. Because the committee substitute raised the age without a grandfather clause, they would be telling somebody who is fully emancipated that, at age 20, it is now illegal to do what they already do. He did not condone smoking but believed this would be "socially dislocating." Mentioning the alcohol prohibition era, he pointed out that when something is prohibited, that itself can entice a young person. The transition period between the late-teen stage into young adulthood is a difficult time. For numerous reasons, he was offering a conceptual amendment to move the age from 21 to 19 in all portions of the legislation. Number 2011 REPRESENTATIVE SANDERS objected. REPRESENTATIVE RYAN asked to hear from the sponsor. REPRESENTATIVE KOTT stated, "My thoughts are that tobacco use is prevalent among our youth, whether we like to know it or not. But beyond that, if there are any young individuals out there in the community that have the thought of starting once they are of the existing legal age, we can at least postpone that for a couple of years and protect them from the negative effects of nicotine and tobacco use in general." CHAIRMAN ROKEBERG requested a roll-call vote. Voting for the amendment were Representatives Rokeberg and Hudson. Voting against it were Representatives Cowdery, Sanders, Brice and Ryan. Representative Kubina was absent. Therefore, it failed, 4 to 2. Number 2089 REPRESENTATIVE RYAN made a motion to move 0-LS0287\L, Ford, 4/14/97, as amended, from committee with individual recommendations and accompanying fiscal notes. CHAIRMAN ROKEBERG pointed out that the fiscal notes were for the sponsor substitute: $7,900 from the Alaska Court System, 66.3 thousand dollars from the Department of Commerce and Economic Development, and the rest for zero. Number 2115 CHAIRMAN ROKEBERG asked whether there was any objection. There being none, CSSSHB 159(JUD) moved out of the House Labor and Commerce Standing Committee.
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