Legislature(1995 - 1996)

03/05/1996 08:03 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 HB 365 - MINOR IN POSSESSION OF TOBACCO                                     
 The first order of business to come before the House State Affairs            
 Committee was HB 365.                                                         
 CHAIR JEANNETTE JAMES called on the sponsor of HB 365,                        
 Representative Con Bunde.                                                     
 Number 0042                                                                   
 REPRESENTATIVE CON BUNDE explained there were laws against minors             
 consuming alcohol and tobacco.  Unfortunately, unlike minors                  
 consuming alcohol, a glitch existed in the laws that prevented the            
 enforcement of the prohibition against minors consuming tobacco.              
 He explained "sting operations" were not allowed in tobacco                   
 compliance checks, and HB 365 would take care of that.  The problem           
 was addressed at the federal level with the passage of the Synar              
 Amendment that required states to conduct local random checks for             
 illegal sells.  Alaska had been out of compliance because as the              
 laws were written it could be conceived that the minor was breaking           
 the law and the law enforcement official was contributing to the              
 delinquency of a minor.  Therefore, HB 365 would allow undercover             
 minors working with law enforcement to buy tobacco under a random             
 unannounced inspection.  He said, if there were no compliance                 
 checks, there was no way to know which stores were selling tobacco            
 to children preventing the enforcement of the law.  In addition,              
 many substance abuse prevention and treatment efforts would suffer,           
 if federal substance abuse block grants were reduced as a result.             
 He called HB 365 a simple bill and encouraged the support of the              
 committee members.                                                            
 Number 0287                                                                   
 CHAIR JAMES said HB 365 was a good bill of which she signed on as             
 a cosponsor.                                                                  
 CHAIR JAMES called on the first witness via teleconference in                 
 Anchorage, Delisa Culpepper.                                                  
 Number 0335                                                                   
 DELISA CULPEPPER Member, Alaska Public Health Association, said the           
 Association supported HB 365.  She explained tobacco was related to           
 a number of health problems in the United States and the world.               
 She commented many people believed it was a common rite of passage            
 for the youth when in actuality many of the adults that smoked                
 started before the age of 18 and never stopped.  She cited a survey           
 in Anchorage where 31 percent of young males smoked and 34 percent            
 of young women smoked in the age group of 18 to 24.  Moreover,                
 another survey indicated children were beginning to smoke on a                
 regular basis at a younger age.  She suggested educating children             
 at an earlier age, increasing tobacco rates, and making sure                  
 cigarettes were not readily available as a few solutions to the               
 problem.  Laws existed that said it was illegal to smoke under the            
 age of 19, yet cigarettes were readily available.  She concluded by           
 stating "lets stop the habit."                                                
 Number 0495                                                                   
 CHAIR JAMES asked Representative Bunde what the penalty was in the            
 law for a minor in possession of a tobacco product?                           
 Number 0550                                                                   
 REPRESENTATIVE BUNDE replied, in Anchorage according to news                  
 reports, a citation was being issued rather than making an arrest.            
 Number 0591                                                                   
 REPRESENTATIVE CAREN ROBINSON replied a fine was issued in Juneau             
 of about $300.                                                                
 Number 0605                                                                   
 REPRESENTATIVE BRIAN PORTER asked Representative Robinson if the              
 fine amount was in a municipal ordinance or in a state statute?               
 REPRESENTATIVE ROBINSON replied I think it is in a state statute.             
 CHAIR JAMES called on the next witness in Juneau, Chris Stockard,             
 Lt., Department of Public Safety, to answer her question.                     
 CHRIS STOCKARD, Lt., Research and Planning Division, Office of the            
 Commissioner, Department of Public Safety, replied he was here to             
 answer questions.  He did not have a prepared statement.  The                 
 penalty of a minor in possession of a tobacco product was a class             
 B misdemeanor.                                                                
 CHAIR JAMES called on the next witness in Juneau, Glen Ray,                   
 Department of Health and Social Services.                                     
 Number 0671                                                                   
 GLEN RAY, Health Promotion Program Manager, Community Health and              
 Emergency Medical Services, Division of Public Health, Department             
 of Health and Social Services, said the division was in favor of HB
 365.  He explained every state in the United Stated discouraged               
 tobacco use through banning sells to minors.  He cited an estimated           
 3,000 minors started smoking every day which translated to about 1            
 million addicted minors every year.  He explained tobacco use                 
 usually started in early adolescence, and cited a 1992 behavioral             
 risk survey of which 84.5 percent of the current smokers reported             
 the use of tobacco before the age of 20.  He further cited in 1995            
 a behavioral risk survey indicated 36.5 percent surveyed identified           
 themselves as current smokers, defined as at least one cigarette in           
 the last 30 days; and 21 percent identified themselves as frequent            
 smokers, defined as at least 20 cigarettes in the last 30 day.                
 There was a high rate of tobacco use in Alaska compared to the rest           
 of the United States.  A report by the Center for Disease Control             
 (CDC) indicated the overall percentage of smokers was higher in               
 1993 than in 1989, while the trend was increasing among the youth,            
 this was directly associated with the sell of tobacco from small              
 vending stores.  He further explained nicotine was the most                   
 difficult addiction to overcome.  Therefore, if the supply was                
 restricted, the amount of addicted smokers would decrease in the              
 long run.  A recent study indicated only 28 percent of the vendors            
 obeyed the laws.  The easy access, he asserted, sent a wrong                  
 message to minors.  In conclusion, he said HB 365 would reduce the            
 number of tobacco products acquired by minors thereby reducing the            
 number of people becoming addicted to tobacco, and improving the              
 health of the state.                                                          
 CHAIR JAMES called on the next witness in Juneau, Forest Ray.                 
 Number 1160                                                                   
 FOREST RAY said he was a sophomore at Juneau Douglas High School.             
 He was part of a sting operation this summer of which 10 places               
 were hit.  He explained around six of the places sold to him easily           
 of which only about one-half asked him for identification.  He                
 expressed his support for HB 365.  He did not like to be around               
 smokers, and to breath the smoke and chemicals.                               
 Number 1211                                                                   
 REPRESENTATIVE ROBINSON asked Mr. Ray if he was instructed not to             
 lie about his age?  She wondered if that was an important part of             
 a sting operation.                                                            
 Number 1233                                                                   
 MR. RAY replied he did not hear that part.                                    
 CHAIR JAMES called on the next witness via teleconference in                  
 Ketchikan, Frances Young.                                                     
 Number 1248                                                                   
 FRANCES YOUNG said she agreed with the previous testifiers, Ms.               
 Culpepper and Mr. Ray.  She said the mortality and the cost related           
 to tobacco use added to the problem.  She explained in Ketchikan a            
 judge required a 10 page report for a first offense on the effects            
 of tobacco.  She further explained, if the minor was caught on                
 school property with a tobacco product, a one day in-house                    
 suspension was enforced.  Moreover, a second offense required a 20            
 page report, and a two day in-house suspension.  Consequently, the            
 smoking rate in Ketchikan appeared to be down.  According to a                
 compliance check in Ketchikan, three out of five vendors sold                 
 cigarettes to minors.  The vendors did not sell the second time               
 around, however.  She called HB 365 a helpful bill.                           
 CHAIR JAMES called on the next witness via teleconference in                  
 Ketchikan, Lynda Adams.                                                       
 Number 1424                                                                   
 LYNDA ADAMS, Regional Board Member, Seven Circles Council, said the           
 Council represented communities in Ketchikan, Juneau, and Sitka.              
 The Council supported HB 365, and further felt the House State                
 Affairs Committee should also hear HB 431.  The Council supported             
 HB 365 because it would make sting operations easier for                      
 communities.  She reiterated the Council supported HB 365, and                
 hoped the committee would hear HB 431 as well.                                
 CHAIR JAMES called on the next witness via teleconference in                  
 Anchorage, Michael Livingston.                                                
 Number 1488                                                                   
 MICHAEL LIVINGSTON congratulated Representative Con Bunde on                  
 proposing HB 365.  He urged the committee members to pass the bill            
 forward to the next committee of referral.  He also urged the                 
 committee members to consider the penalties for businesses cited              
 selling tobacco products to minors.  He recommended considering an            
 optional court appearance with a $300 fine.  The reason, he said,             
 was because magistrates often dismissed businesses cited creating             
 a waste of time for a police officer to issue a citation.                     
 Number 1550                                                                   
 CHAIR JAMES asked Representative Bunde to address the suggestion              
 Mr. Livingston made regarding the optional court appearance and the           
 $300 fine.                                                                    
 Number 1568                                                                   
 REPRESENTATIVE BUNDE deferred to the experts in the Department of             
 Public Safety to answer the question.                                         
 Number 1594                                                                   
 LT. STOCKARD replied the Department did not handle a lot of these             
 cases.  He cited in 1995 there were 3 cases of sales and 19 cases             
 of possession.  The Department knew about the sting operations in             
 some communities, and that Judge Peter B. Froehlich pursued the               
 issue seriously and to the maximum in Juneau.  The issue, however,            
 laid with the court system and not with law enforcement.                      
 Number 1649                                                                   
 REPRESENTATIVE PORTER responded, unlike district court judges or              
 superior court judges, magistrates did not run for confirmation.              
 He said magistrates were employees of the court system, and                   
 suggested sending a letter to the superior court judge when the               
 magistrate did not want to enforce the law.                                   
 CHAIR JAMES called on the next witness via teleconference in                  
 Anchorage, Diane Cropper.                                                     
 Number 1676                                                                   
 DIANE CROPPER explained she was the mother of five children in                
 Anchorage.  She explained a Tesoro Northstore Company (7-Eleven)              
 store in Anchorage sold a tobacco product to her 16 year old son.             
 The receptionist of the Anchorage Police Department advised her to            
 call the Borough or Alcohol and Tobacco and Firearms for                      
 information who in turn referred her to the Anchorage Police                  
 Department.  She said it was amazing that there was a law that no             
 one was enforcing.  Furthermore, after several more phone calls she           
 was passed around until she talked to a Sergeant Nelson.  She                 
 explained to Sergeant Nelson she had a receipt showing the date and           
 time of the purchase and she wanted to file a complaint.  She could           
 not identify the clerk and was told without positive identification           
 there was nothing that could be done.  However, the police could              
 give her son a $300 ticket, and talk to the employees of the 7-               
 Eleven.  The fact that she had a receipt did not matter.  In                  
 response, she said she would organize her own sting operation.  The           
 police officer explained she would go to jail for aiding and                  
 abetting a minor, receive a $300 fine, her son would receive a $300           
 fine, and lastly the store would get off because the evidence was             
 gathered while she was committing a crime.  She was told tobacco              
 sells to minors were not a big enough crime to warrant anyone to              
 enforce the law.  She explained her son looked like the average 16            
 year old, and he shared with her that the small stores were the               
 easiest to purchase tobacco products from.                                    
 Number 1885                                                                   
 REPRESENTATIVE PORTER replied sometimes the police department was             
 the messenger rather than the creator of the rules.  The fact that            
 a case could not be made using her receipt was not an arbitrary               
 decision by the police department, but a decision made in law by              
 the courts.  House Bill 365 was trying to correct her frustrations.           
 MS. CROPPER replied, "that's what I'd like to see happen."                    
 Number 1928                                                                   
 REPRESENTATIVE ROBINSON wondered if the police officer could notify           
 the business owner a complaint had been reported.                             
 Number 1935                                                                   
 REPRESENTATIVE PORTER replied, according to the testimony of Ms.              
 Cropper, that was what the officer suggested.                                 
 Number 1946                                                                   
 REPRESENTATIVE ROBINSON reiterated her concern about minors lying             
 about their age in a sting operation.  She wondered if it needed to           
 be clarified in the bill.                                                     
 Number 1976                                                                   
 REPRESENTATIVE BUNDE replied the individuals were lying in a sting            
 operation, but not about their age.  He cited the response, "I lost           
 my drivers license," was a lie.  He did not view this as                      
 entrapment, however.  He said it was the obligation of the store              
 clerk to investigate the age further.                                         
 Number 2008                                                                   
 REPRESENTATIVE ROBINSON reiterated it was important to create a               
 program that did not encourage minors participating in a sting                
 operation to lie about their age.                                             
 Number 2046                                                                   
 REPRESENTATIVE BUNDE replied, nonetheless, when entrapment was                
 involved it was not a good case.                                              
 Number 2066                                                                   
 CHAIR JAMES said it was more proper to ask for identification than            
 to ask how old was the person.                                                
 Number 2078                                                                   
 REPRESENTATIVE ROBINSON said, according to the experts in Juneau,             
 the program worked because the clerks and business owners were                
 educated to the extent of the law.  Her goal was to educate the               
 clerks to prevent the sale of tobacco products to minors.                     
 Number 2137                                                                   
 REPRESENTATIVE PORTER replied it was preferable to educate as                 
 Representative Robinson suggested.  However, there were times when            
 a vendor intentionally violated the law, and that was when it was             
 important to allow law enforcement to make a case.                            
 Number 2165                                                                   
 REPRESENTATIVE BUNDE stated the age requirement for tobacco                   
 products should match the age requirement for alcohol.                        
 Identification was required when alcohol was purchased.                       
 Number 2189                                                                   
 REPRESENTATIVE ROBINSON reiterated she had a problem with creating            
 a situation that supported a minor to lie about his or her age.               
 Number 2199                                                                   
 REPRESENTATIVE BUNDE replied the fact that a minor tried to buy was           
 a lie.  He said he did not want to encourage children to be                   
 dishonest either.                                                             
 REPRESENTATIVE ROBINSON asked Representative Bunde to think about             
 the issue further and to talk to the experts here in Juneau.                  
 Number 2222                                                                   
 REPRESENTATIVE BUNDE moving forward, responded to the $300 fine               
 discussed earlier.  He said he would consider increasing the fine             
 to $1,000, for example.                                                       
 CHAIR JAMES said she would support an increase in the fine.                   
 Number 2242                                                                   
 REPRESENTATIVE PORTER moved that HB 365 move from committee with              
 individual recommendations, and attached fiscal notes.  Hearing no            
 objection, it was so moved from the House State Affairs Committee.            

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