In July, the Anchorage Assembly passed an ordinance called "Tobacco 21″ to try to cut down on teen smoking. Part of that change, which went into effect Aug. 20, was stripping the penalty for minors in possession of tobacco and vaping products.
However, Anchorage police have not followed the intent of the city’s legislative body and have instead relied on state code to continue penalizing minors in possession.
The city and police have said the Anchorage Police Department has discretion on how it enforces state and local laws, a position backed by a former state prosecutor. However, some Assembly members are indignant after APD ignored their decision.
“I am a little surprised to hear that,” said Assemblywoman Suzanne LaFrance, who co-sponsored the ordinance. “I definitely need to go to APD to understand that perspective, because that’s not what my intent, the intent of Tobacco 21 is. It’s deliberately not punitive toward young people.”
Between Aug. 29 and Oct. 30, APD officers issued 23 citations for minors in possession of tobacco or vaping products, according to department spokeswoman Renee Oistad. Oistad said since the ordinance was changed, officers have issued three citations under the municipal code. Those will be voided or reissued under state code, she said.
Oistad said prior to the Assembly’s decision, police usually used state code anyway. From Jan. 1 to July 1, APD officers wrote 44 citations under the state code and two under municipal code. Oistad said the records don’t reflect whether the citations are for tobacco or vaping.
Tobacco 21 was modeled after national policy created by health organizations. In addition to LaFrance, it was co-sponsored by John Weddleton and Austin Quinn-Davidson. It passed unanimously.
LaFrance said the Assembly initially looked at increasing the penalty for possession, but research showed that’s an ineffective approach. Instead, the Assembly increased the penalty for selling to minors.
“Removing the section that had to due with minors in possession was very deliberate,” LaFrance said.
The Assembly worked with Emily Nenon, the Alaska government relations director for the American Cancer Society Cancer Action Network, to craft the ordinance.
"We’re not interested in criminalizing the youths that are victims of the tobacco industry’s tremendous marketing,” Nenon said.
“Knowing how many millions of dollars the tobacco industry spends marketing to kids, the focus should be on the adults,” she said.
The issue is also being reviewed by the city’s ombudsman, which received a complaint from the father of a 15-year-old who was issued a citation by a school resource officer.
LaFrance was troubled to learn that relying on the state penalty includes a stiff fine.
Before it was changed, municipal code imposed a maximum $100 fine for minors in possession of tobacco. State code imposes a maximum $500 fine and a mandatory appearance in court.
LaFrance said she has has reached out to the mayor’s administration and APD Chief Justin Doll to better understand why police are enforcing state code. She has also talked with Assembly attorney Dean Gates about drafting a resolution to clarify the Assembly’s intent in removing the penalty for minors in possession of tobacco and vaping products.
LaFrance said she recalls the process being collaborative, and said police were likely present at the Assembly meetings where this was taken up. Doll and Deputy Chief Ken McCoy are often at the meetings.
APD officers have the ability to enforce both state and local laws. They also have discretion in deciding how to enforce the laws, said University of Alaska Anchorage legal studies professor Robert Henderson. Henderson was a prosecutor for 15 years and served as deputy attorney general under Gov. Bill Walker and oversaw the Alaska Department of Law’s Criminal Division.
Henderson said there is nothing improper with a local officer using state code to issue a citation. And, he said, there is nothing wrong with them siding with Assembly in not issuing a citation. It’s up to the individual officer or department policy, he said.
"Officers are able to exercise their discretion in determining whether to cite somebody,” Henderson said. "That’s their prerogative.”
Doll and his communications staff declined to be interviewed for this story. In a statement, spokesman MJ Thim reiterated the department has the authority to enforce state laws.
“There is no targeted enforcement planned at this time focusing on this statute, however officers have discretion to enforce the law as deemed appropriate,” he said.
Anchorage Mayor Ethan Berkowitz and his staff also declined to be interviewed.
“Where there is a difference of opinion between those bodies, that is a political issue for the lawmakers to resolve,” Berkowitz said in an emailed statement. "Except in the most dire of circumstances, it is inappropriate for civilian authority to direct law enforcement in the execution of its duties, and I support the efforts of our chief of police to allocate his department’s resources to best serve our municipality.”