Legislature(2005 - 2006)CAPITOL 106
03/01/2005 08:00 AM STATE AFFAIRS
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 166-VETERANS' MEMORIAL CERTIFICATES 8:06:09 AM CHAIR SEATON announced that the first order of business was HOUSE BILL NO. 116, "An Act relating to the liability of certain persons for entry and remaining on licensed premises." 8:06:21 AM REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, as sponsor of HB 116, said the proposed legislation would protect minors who work with peace officers in sting operations. 8:06:37 AM REPRESENTATIVE ELKINS moved to adopt the committee substitute (CS) for 116, Version 24-LS0379\G, Luckhaupt, 2/9/05, as a work draft. There being no objection, Version G was before the committee. 8:07:04 AM REPRESENTATIVE MEYER continued with his introduction of the bill. He noted that Version G would add a second section to the original version, applying the intent to both instances of civil liability as it pertains to alcohol beverage status. Version G corrects an oversight in the civil liability provisions of AS 4.16.049 and .065. He reminded the committee that, in the last legislative session, he had brought forth House Bill 428, which created a civil liability penalty for violations of AS 4.16.060. AS 4.16.049 and .065 allow a person with an alcoholic beverage license to bring civil action against a minor who violates the provisions of those statutes, including: a minor who is knowingly entering or remaining on a licensed premise; a minor soliciting others to purchase alcohol for them; and a minor presenting false identification. The fine can be up to $1,000. Representative Meyer said the problem is that when the original legislation was passed, [underage] volunteers who may be working with law enforcement on various sting operations were not exempted. REPRESENTATIVE MEYER said the compliance checks done are a good enforcement tool. Some establishments follow the law better than others. He related first-hand experience in having been asked by a minor to buy alcohol. When he refused, the minor told him that she was working with the Mothers Against Drunk Driving (MADD) Youth For Action group, and she was with a law enforcement officer who was in an unmarked car. He said [HB 116] would try to fill a loophole. He added, "I don't think we ever intended for establishments to take action against kids who were actually working with law enforcement on sting operations." 8:09:56 AM REPRESENTATIVE ELKINS asked how many youth have been prosecuted. 8:10:15 AM REPRESENTATIVE MEYER said he doesn't know the actual numbers, but it's "in the 100s." 8:10:55 AM REPRESENTATIVE ELKINS asked how many of the youth who signed up for the program may have been in trouble for minor consuming and did so to try to "clean up their slate." 8:12:20 AM REPRESENTATIVE MEYER indicated that others present to testify may be better able to answer that question. 8:13:35 AM DOUGLAS B. GRIFFIN, Director, Alcohol Beverage Control Board ("ABC" Board), Department of Public Safety, in response to Representative Elkins' question, said generally that's not the manner in which underage people are recruited; however, he said he's not 100 percent certain the situation Representative Elkins described doesn't exist. He listed some of the places from which youth are recruited, including: the Youth In Action program in Juneau, MADD, underage military personnel, college coeds, and some high school students. He noted that the youth are paid about $10 an hour. 8:14:43 AM REPRESENTATIVE ELKINS asked who runs the program. 8:14:56 AM MR. GRIFFIN responded that he has run the program through local police and it's still possible for local police to get their own grant to do this type of work; however, since moving the ABC Board over to the Department of Public Safety, the board has opted to have Alaska State Troopers run the operations. He emphasized that the intent is not to be deceptive; the desire is to use underage people who look their age. Mr. Griffin reported that since the program's inception, the failure rate has dropped from 50 percent to below 10 percent. 8:17:47 AM MR. GRIFFIN, in response to questions from Representative Ramras, said fake identification (ID) is not used and often an ID is not used at all. Sometimes a youth participant may use his/her existing ID. The average age of the youth is 18, while some 19 or 20 years of age are used. If someone is used who is approaching the age of 21, they are dressed to look young. He reiterated that the intent is not to fool people regarding the person's age. He added, "We prefer to call these compliance checks." 8:20:40 AM REPRESENTATIVE RAMRAS said the program is successful; however, he expressed concern that hard-working servers would think that a person showing an ID wouldn't do so unless he/she was 21 or older. 8:22:02 AM MR. GRIFFIN said that's unfortunate, but a server must do his/her job. If the action is fought, perhaps a prosecutor would decide not to prosecute, but it's not the ABC board's decision. 8:24:00 AM CHAIR SEATON asked the committee members to keep their questions within the context of the bill. 8:24:23 AM REPRESENTATIVE GRUENBERG directed attention to the phrase "otherwise observes" on [page 1 of Version G], lines 7 and 13, and he remarked that that implies visualization. He asked if there is a possibility of using wiring in the future. 8:25:01 AM MR. GRIFFIN said that's a good point for possible instances where there may not be direct visualization. 8:25:54 AM REPRESENTATIVE GRUENBERG said he would work on that in the House Judiciary Standing Committee. He said there are similar kinds of situations regarding underage persons purchasing cigarettes, and he suggested considering similar language for that. 8:26:47 AM MR. GRIFFIN said cigarettes are outside the ABC Board's jurisdiction. 8:27:15 AM REPRESENTATIVE GRUENBERG asked about a possible cooperative sting involving someone underage trying to buy both alcohol and cigarettes in a bar. 8:27:57 AM MR. GRIFFIN reiterated that the ABC Board does not do anything related to tobacco and, to his knowledge, said the tobacco industry doesn't oversee anything related to the sale of alcohol. He said there are situations where a person old enough to buy tobacco, but not old enough to buy liquor, gets his/her license revoked because of going into a liquor store to buy the tobacco. 8:29:09 AM REPRESENTATIVE GRUENBERG suggested finding a way to combine tobacco and alcohol as they relate to compliance, and to consider narrowing the title of the bill. 8:29:17 AM REPRESENTATIVE MEYER said he is concerned about youth having access to tobacco; however, he said, "I don't believe we have the civil liability with the tobacco as we do the alcohol." 8:29:37 AM REPRESENTATIVE GATTO asked if there are people "unaccompanied, unobserved, and unwired" who are simply patrolling areas to calculate which areas need the most concentration. 8:30:41 AM MR. GRIFFIN answered no. He said that does not comport with the way the ABC Board operates its program. He outlined the program again and added that all the stores are blanketed, and some bars as well. 8:31:20 AM REPRESENTATIVE GATTO asked if it is possible to say someone is "otherwise observed" if he/she comes back with a voice recording, video recording, or photograph. 8:31:47 AM MR. GRIFFIN said that may be a legal question. He reiterated that recording equipment is not currently used. An attempt is made to have direct observation, with a police officer or state trooper nearby. 8:32:44 AM CHAIR SEATON directed attention to page 1, [lines 11-12], which read as follows: "if a person performs an act proscribed under this section". He asked if that refers to participation in the project or the purchasing of alcohol. 8:33:06 AM MIKE PAWLOWSKI, Staff to Representative Kevin Meyer, Alaska State Legislature, testifying on behalf of Representative Meyer, sponsor, clarified that the language refers to the acts listed in AS 04.16.060 [which read as follows]: Sec. 04.16.060. Purchase by or delivery to persons under the age of 21. (a) A person under the age of 21 years may not purchase alcoholic beverages or solicit another to purchase alcoholic beverages for the person under the age of 21. (b) A person may not influence the sale, gift, or service of an alcoholic beverage to a person under the age of 21 years, by misrepresenting the age of that person. (c) A person may not order or receive an alcoholic beverage from a licensee, an agent or employee of the licensee, or another person, for the purpose of selling, giving, or serving it to a person under the age of 21 years. (d) A person under the age of 21 years may not enter licensed premises where alcoholic beverages are sold and offer or present to a licensee or an agent or employee of the licensee a birth certificate or other written evidence of age, that is fraudulent or false or that is not actually the person's own, or otherwise misrepresent the person's age, for the purpose of inducing the licensee or an agent or employee of the licensee to sell, give, serve, or furnish alcoholic beverages contrary to law. (e) A person under the age of 21 who is seeking to enter and remain in a licensed premises under AS 04.16.049(a)(2) or (3) may not misrepresent the person's age or having obtained the consent of the parent or guardian required by that section. 8:34:24 AM CINDY CASHEN, Executive Director, Mothers Against Drunk Driving (MADD), Juneau Chapter, stated her support of HB 116. She told the committee that the Juneau Chapter's Youth In Action members are trained to do the compliance checks. She confirmed that those picked to participate are young - one of them is a 14- year-old with braces - and in no way are supposed to look 21 to fool people. Ms. Cashen noted that those who are following the law are publicly thanked. 8:37:08 AM MR. GRIFFIN, in response to a question from Representative Elkins regarding how many cases involve minors buying liquor in a store versus how many involve minors asking someone outside the store to purchase the liquor for them, said he would have to investigate an answer. He said the main focus of the ABC Board has been to get clerks trained, and he expressed pleasure at the numbers dropping under 10 percent. He said the secondary step is getting people not to buy for those underage. Mr. Griffin said the "shoulder tap" method of getting an of-age person to buy for an underage person [in a compliance check] is relatively new. 8:39:08 AM REPRESENTATIVE ELKINS offered his understanding that most people who buy alcohol for underage people are in their early twenties. 8:39:31 AM MR. GRIFFIN responded that one study shows "that 65 percent of the alcohol provided to underage people [is] provided by parents of ... old-enough friends or siblings." He stated that the compliance check will not, in and of itself, solve the problem of underage access to alcohol, but it's one step to solving the problem. He said the next step is to try to educate the public, which will probably be done initially with a media campaign. He said several groups are working together to pool money for the media effort. 8:41:11 AM REPRESENTATIVE ELKINS asked Mr. Griffin how he would rate the Techniques in Alcohol Management (TAM) program, overall. 8:41:35 AM MR. GRIFFIN replied that the program is not perfect, because the participants probably don't learn everything they need to know in a four- to five-hour class; however, it provides a certain level of understanding and professionalism to people who sell alcohol. 8:42:26 AM MR. GRIFFIN, in response to a question from Chair Seaton, explained that TAM is one of about three alcohol server programs that the ABC Board has approved. The training is required and those who have it must get recertified every three years. Anyone working in an establishment that serves alcohol must be able to show their certification to a police officer or ABC Board member upon demand. 8:44:49 AM MR. GRIFFIN, in response to a question from Representative Gatto, said to his knowledge there have not been any studies done to find out whether one particular age clerk is more likely to sell to a minor than another. In response to Representative Gatto's example that a 21-year-old clerk may be more likely to sell to a minor, he pointed out that there actually may be an advantage to a younger clerk's knowing who's of age. He emphasized that he doesn't want to jump to any conclusions regarding a certain age clerk being better than another. 8:46:43 AM REPRESENTATIVE GRUENBERG suggested it may be a good idea to add a subsection (e) to AS 04.16.065 specifically saying that a minor not be subject to civil penalty. 8:47:50 AM MR. PAWLOWSKI responded that "the civil liability in [AS 04.16.065] doesn't trigger until there's a violation of [04.16.060]." 8:49:32 AM REPRESENTATIVE GRUENBERG explained that the purpose of HB 116 is to provide some immunization and assurance that if a young person works for ABC Board in conducting a compliance check, they are not going to be "hit with a civil penalty." 8:51:03 AM REPRESENTATIVE GRUENBERG asked Mr. Griffin if there is a statutory requirement in regulations that requires bartenders and servers to have training. 8:51:35 AM MR. GRIFFIN answered yes. He noted that the regulation is 13 AAC 104.465 and the statutory requirement is AS 04.21.025. In response to a follow-up question from Representative Gruenberg, he said there is no provision in AS 04.24.025 that requires that a person who sells to a minor be ordered to undergo additional training. He said it may be something that occurs, but very often that person is fired. 8:53:51 AM REPRESENTATIVE GRUENBERG asked if the ABC Board would like to have the authority in AS 04.24.025 to require the licensee and clerk to have additional training. 8:54:15 AM MR. GRIFFIN said he would like to think about that. He said he thinks the board has the authority to do that now. Something in statute making it clear that the board has that option wouldn't hurt, he added, but it may not be necessary. 8:55:26 AM CHAIR SEATON asked the committee to refocus on the issue of exempting liability. 8:55:46 AM REPRESENTATIVE RAMRAS congratulated the ABC Board on its "splendid approach" over the last few years. Notwithstanding that, he said he would oppose [HB 116]. He indicated that there is a difference between using the word "compliance" versus the word "sting," and he mentioned being on "the receiving end of this." He related an anecdote regarding a young woman he overheard on a plane who was worried about using her real ID to buy alcoholic drinks at bars on her twenty-first birthday, because she had been using her sister's ID for many years in those same bars. 8:58:07 AM REPRESENTATIVE RAMRAS referred to a sentence in the letter from the ABC Board [included in the committee packet], which read as follows: One tactic that has been raised by liquor licensees that do not like this increased oversight and enforcement is the claim that law enforcement agents are breaking the law to enforce the law by sending underage persons on to licensed premises in violation of AS 04.16.049. REPRESENTATIVE RAMRAS said, "I guess that's my issue." He observed that people who work in the food service industry are often there because it's the best fit for them. He said he is in favor of prosecuting people who [serve alcohol] to people who say they have left there IDs at home, for example; however, he expressed concern for those who are being shown IDs, but don't catch that they aren't valid. Representative Ramras said his professional bartenders take the time to really look at an ID, but he indicated that his servers are often in a rush and dealing with many customers. Some of them have been in the industry for a short time, and it's those servers who, he indicated, are being preyed upon. He asked, "How long do you look at a piece of ID for?" 9:03:55 AM CHAIR SEATON asked, "Is the law that you can't serve to someone under 21, or is the law that you have to check everyone's ID?" REPRESENTATIVE RAMRAS answered, "Both." 9:04:37 AM CHAIR SEATON asked if it would be in violation of law if someone over 21 is served alcohol, "with or without ID." 9:04:50 AM REPRESENTATIVE ELKINS noted that most establishments have a form that a person can fill out swearing that they are 21. 9:06:20 AM CHAIR SEATON said it's obvious that showing the [ID] is not law, or everyone would have to show their ID every time. He asked the committee to refocus on the intent of the bill, which he said is to allow a minor to participate in a compliance check without fear of civil action. 9:07:44 AM REPRESENTATIVE GARDNER said she thinks everyone present is aware of Alaska's problem with alcohol. She said the state has agreed to a minimum drinking age, and those serving alcohol cannot do so to those underage. She indicated that there are a lot of programs to ensure the law is followed; HB 116 would protect those minors working with law enforcement. She stated her support of [HB 116]. 9:09:29 AM REPRESENTATIVE GATTO revealed that in his 26 years working in an ambulance and fire truck he has responded to more traffic accidents than he can count, and many of those accidents were caused by either someone "drinking too much or drinking too young." He said the innocent people are often the ones who are the victims. 9:09:56 AM CHAIR SEATON asked the committee to refocus on the bill. 9:10:14 AM REPRESENTATIVE GRUENBERG, in response to Representative Gatto's reference to the ABC Board's letter, said there are many instances where the law is broken to enforce law, and he said that's an issue that should be considered. 9:11:28 AM CHAIR SEATON clarified that if the committee were to pass HB 116, those underage youth who work with law enforcement on compliance checks would not be breaking the law, because there would be a built-in exception to the law. 9:12:02 AM REPRESENTATIVE GRUENBERG concurred. He referred to AS 11.81.420 [(a)], which read as follows: Sec. 11.81.420. Justification: Performance of public duty. (a) Unless inconsistent with AS 11.81.320 - 11.81.410, conduct which would otherwise constitute an offense is justified when it is required or authorized by law or by a judicial decree, judgment, or order. 9:12:29 AM REPRESENTATIVE GATTO moved to report HB 116 out of committee with individual recommendations and the accompanying fiscal notes. CHAIR SEATON noted that an objection had been voiced. 9:13:51 AM A roll call vote was taken. Representatives Gardner, Gruenberg, Gatto, and Seaton voted in favor of CSHB 116, Version 24- LS0379\G, Luckhaupt, 2/9/05. Representatives Elkins and Ramras voted against it. Therefore, CSHB 116(STA) was reported out of the House State Affairs Standing Committee by a vote of 4-2. 9:14:02 AM REPRESENTATIVE GRUENBERG asked that the record show that the bill passed by a majority of the committee.