Legislature(1995 - 1996)
03/05/1996 08:03 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.