Legislature(2009 - 2010)BELTZ 211
02/17/2009 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB85 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 85 | TELECONFERENCED | |
SB 85-ALCOHOL: LOCAL OPTION/LICENSING/MINORS
CHAIR OLSON announced the consideration of SB 85.
ANNE CARPENETI, Attorney, Criminal Division, Department of Law
(DOL), said the original bill lowered the limits [of alcohol]
that a person could possess without giving rise to the
presumption - just a presumption - that the possession was for
purposes of sale. There were concerns, so she drew up a
committee substitute (CS) that addresses the time frame that a
package store can send alcohol to a local option community but
does not reduce the amounts. Under current law, in response to a
written order from a damp community, a package store can send
10.5 liters of distilled alcohol to every individual every
month. The CS changes the time period, so the licensees can send
the same amount but only one shipment in two calendar months. It
would not change the amounts of alcohol that a person can
possess without giving rise to the presumption, and it doesn't
change the threshold amount for bootlegging between a
misdemeanor and a felony.
SENATOR FRENCH asked if it does or doesn't affect the felony
threshold.
MS. CARPENETI said it does not change it. The bill also adopts
civil penalties on licensees whose employees or agents are
convicted of furnishing alcohol to minors. The first would be a
letter of warning from the ABC board, and the second and
subsequent would be civil fines of $1,000. The bill also
addresses the errors in last year's bills for minor consuming
and the problems with mandatory minimums. The mandatory minimums
were supposed to be the same as those for drunken driving (DWI),
and because the definition of "previously convicted" is
different, the legislation did not do what it was supposed to
do.
SENATOR FRENCH summarized that the bill cleans up minor
consuming and changes the penalties to make them consistent with
DWI, "and the only thing it really does, just to be blunt, is it
goes from one month to two months on the amount of distilled
liquor, wine, and alcohol you can have shipped to you."
3:38:38 PM
MS. CARPENETI said it does that and it adopts the civil
penalties to licensees. Right now there is no penalty. If the
ABC board sees a pattern of violation, it has the ability to do
something. But she has represented the ABC board for several
years, and it has never happened. This consequence is to
encourage licensees to make sure their employees "card"
[customers]. Most licensees are highly responsible, but there
are some that don't take it seriously.
SENATOR MENARD asked if a person in rural areas can't get 24
bottles of wine for a party in two months.
3:39:58 PM
MS. CARPENETI said, "You can get it in a two-month period, but
this is one individual every month." A couple can get twice that
amount.
SENATOR MENARD said she has heard concerns about wanting alcohol
for a party, which wouldn't mean the individual is consuming or
bootlegging it. "So the ABC board would issue a letter of
caution that this has been in violation and then it would be
$1,000?"
MS. CARPENETI said that is for a bar owner, for example, whose
bartender was convicted of furnishing alcohol to a minor on that
licensee's own premises.
3:40:51 PM
SENATOR KOOKESH joined the meeting.
SENATOR MENARD asked if that is in line with DWI laws.
MS. CARPENETI said that is separate. Drunk driving has mandatory
minimum penalties in statute for people convicted of drunk
driving, and there are mandatory minimum penalties for most
people who commit bootlegging. Last year the legislature
intended to adopt similar penalties for both, but it wasn't done
correctly.
SENATOR FRENCH moved to adopt the committee substitute (CS) to
SB 85, labeled 26-GS1009\R. Hearing no objections, Version R was
before the committee.
3:42:14 PM
THOR WILLIAMS, Bethel, AK, said Version R will have negative
consequences by "limiting the amount of alcohol one person can
get from once a month to twice a month." He said there will be a
backlash, and local option communities will opt out of being
damp. "We're going to become wet communities so that we can
govern ourselves concerning this alcohol issue." It is a major
concern because local option has allowed some communities to
avoid some of the problems. "But now that people want to tread
on our rights concerning alcohol, this is leading our
communities into getting away from this law and challenging
ourselves to look at different options," like opening their own
liquor stores and bars. He has asked the director of the ABC
board to come to Bethel "to indicate to the city of Bethel what
it means if our community becomes wet and gets out of local
option, so that we are clear about how this is going to affect
our community." He said that the community of Bethel is very
concerned and wants this bill to die in committee.
3:44:20 PM
DAVE TRANTHAM, Bethel, said he has lived in western Alaska a
long time. Bethel voted to be a local option community. Title IV
of the state statute became law. Some of the provisions in Title
IV ban alcohol sales in Bethel, but it is legal to have or
import alcohol. Over the years legislators have changed the
local option law to make it more restrictive. It was amended in
2007 and 2008, and now this is another attempt. It is his
sincere belief that if SB 85 passes, the citizens of Bethel will
vote to opt out of local option. There are discussions about
Bethel going wet and getting a city-owned and operated liquor
store. The passage of the bill will also mean lost revenues to
the state as well as to the city of Bethel through alcohol user
fees of 6 percent for sales in Anchorage.
MR. TRANTHAM said this bill will increase the value of alcohol
for bootleggers, and there will be more home brewing. There will
be more consumption of other products that contain alcohol, like
Lysol and Listerine. More people will turn to hard drugs. He
does not support the part of SB 85 that reduces the amount of
alcohol that can be imported or possessed. "I don't know what
all the solutions are, but I feel like this is not the right
direction." People are saying they are being treated like
children and second-class citizens. He feels that the damp
status is best for Bethel. When it was wet it was ugly, and when
it was dry it was ugly. It is now damp and it is still ugly. "I
don't know where this is headed." The governor is getting
involved and has recommended these changes. There are good
things in the bill, and "I don't know why they're all jumbled
together, but I cannot support Senate Bill 85."
3:49:26 PM
SENATOR FRENCH asked if there should be any limits on the amount
of alcohol an individual can buy in a damp community.
MR. TRANTHAM said, "I have no problem with that, the limits. I
do not drink all that much, and I can live with the new limits,
but it's the principal of the thing." He feels some limits are
necessary because if some people order too much there will be
too much abuse.
3:50:36 PM
CHAIR OLSON asked what amount that should be.
MR. TRANTHAM said it should remain the same because people have
learned to live with it. Most people accept the limits, with a
few exceptions. "We knew there would be limits to what we could
order and possess when we voted for this local option. We didn't
know it was going to be changed and changed and amended over the
years." If it is reduced to 2.5 cases of beer per month, it will
be way too small. Bethel has a lot of veterans coming home from
overseas who fought for the right to have a beer. He is a
veteran.
3:52:02 PM
DAN LEINBERGER, Vice Mayor, City of Bethel, said he is just
speaking for himself. The intentions of SB 85 are good, but out
of the four provisions, he only agrees with three. He has
serious concerns with the limitations. It isn't the actual
amount but it should be a local decision. The damp community
needs to determine the appropriate amount. He understands the
efforts to curtail bootlegging, especially in dry communities
that are near Bethel, Barrow, and Kotzebue, but the impact will
be on the damp communities. He knows of no local input from damp
communities until today. There have not been local hearings or
consultation with local governments. Barrow is a classical case
for local preference for local option. It changed its status
almost every year and then settled on a damp situation with a
delivery site. Barrow also reduced the allowable amount of
alcohol below the current state limits.
3:55:16 PM
MR. LEINBERGER said he heard the committee hearing two weeks ago
when witnesses referred to the various social and physical ills
of alcohol, and everything they said was absolutely correct. But
the point is that it should be a local decision. Wet communities
like Juneau and Anchorage have no restrictions, so a person
could buy liquor by the pallet. That is the dichotomy. State
officials say how bad alcohol is and damp communities have too
much, but wet communities have no restrictions what-so-ever. If
alcohol is so bad, why not limit wet communities? It feels as
though the damp communities are being treated like children. "We
can't make our own decisions for ourselves, we have to rely on
somebody - a group of somebodies -- 800 miles away," without any
input from Bethel. He said he applauds the efforts to diminish
the effects of alcohol in rural Alaska, and he fully supports
the provisions on minor consuming and the sales in the package
stores. But without local input, he cannot support the
provisions that impose any additional limitations to purchases
of alcohol for damp communities.
3:57:55 PM
CHAIR OLSON asked how long he has lived in Bethel.
MR. LEINBERGER said he grew up in Barrow and has lived in Bethel
for eight years.
CHAIR OLSON assumed he was well aware of the bootlegging problem
in small communities. One of the reasons that wet communities
have no restrictions is because there are services like jails,
holding facilities, and hospitals. The thrust of this bill is to
try and deal with the problems that are out in Savoonga,
Shaktoolik, Golovan, Atqasuk, Napaskiak, and other places.
3:58:57 PM
MR. LEINBERGER agreed. That is a valid point. Those dry villages
near Kotzebue, Barrow, and Bethel may not have the means to
police themselves. The three communities are a funneling point,
but this bill will not have the desired outcome. It will have
the unintended consequence of Bethel opting out, and that would
be utter chaos. It would take a vote of the people, "but I think
that there are some serious consequences as to how far you
push." It is more appropriate to locally set limitations.
4:00:37 PM
CHAIR OLSON said he agrees with him. He asked Ms. Carpeneti to
respond to the comments from Mr. Leinberger, Mr. Williams, and
Mr. Trantham regarding losing the local option and creating
"utter chaos." He expressed his concern. His experience in
Bethel when it was wet "was terrible."
MS. CARPENETI said if that were a consequence of this bill, it
would not be good. It was because of those concerns that the CS
was drafted. It doesn't change the limits except that "it
changes it in terms of how much a person can order in a two-
month period rather than a one-month period." The governor did
not suggest this bill in a vacuum. The original impetus came
from the former representative from Bethel in a hearing in the
House Finance Committee last session who suggested that the
limits were too high. A lot of people at that hearing agreed
with her. But the ABC board said people were calling in
opposition, so the CS was suggested as a compromise. It is not
nearly as big a change as the original bill. Mr. Trantham's
comments were geared toward the original bill and not the CS.
4:03:27 PM
MS. CARPENETI noted that Mr. Leinberger agrees with the
limitations, but has serious concerns about what will happen. "I
don't know that the limitations in the CS are as serious as to
give rise to that possibility that a damp community would change
their local option." It is important for people to go to Costco
and get an order that will last for some time, so leaving the
limits as they are would make this work. The current limits
represent 12 shots of hard alcohol every day for every person -
day in and day out. That is why the former representative from
Bethel wanted to lower the limits.
CHAIR OLSON asked about decreased revenue for the state and an
increase in home brewing.
MS. CARPENETI said that is a concern but the health benefits
outweigh the alcohol tax. People from the villages asked the
state to work on this. The CS is not that big of a change to
increase the amount of homebrew. She thinks Mr. Trantham was
responding to the original bill.
4:05:56 PM
CHAIR OLSON asked about the consumption of things like Lysol. "I
find that very concerning."
MS. CARPENETI said with the less severe approach in the CS, "I
don't know that somebody having the ability to have 10.5 liters
every two months would..." She asked if Mr. Trantham has seen
the CS.
4:06:35 PM
MR. TRANTHAM said he has not seen it until this moment.
CHAIR OLSON asked if the CS alleviates the concerns of increased
homebrew and Lysol.
MR. TRANTHAM said, "I don't believe so at all." The stores in
Bethel have to put Lysol, Listerine, cooking wine, and other
products in a locked container. It is not sold to people who use
the stuff for a fix when they can't find alcohol. "It's really,
really bad here." He suggested that a committee member visit
Bethel and he will give a tour to show what life is really like.
4:08:53 PM
CHAIR OLSON said he hopes to be able to take him up on that.
SENATOR KOOKESH asked if Bethel is wet or damp.
MS. CARPENETI said Bethel is damp and many nearby villages are
dry.
SENATOR MENARD asked if there have been discussions about
limiting alcohol in urban Alaska, like Anchorage. Why should
someone in urban Alaska be able to buy any amount of alcohol?
4:10:19 PM
MS. CARPENETI said any community can decide on local options by
a vote of the people who live there.
SENATOR KOOKESH asked if being "wet" is also a local option;
"and isn't that what Juneau and Anchorage are?"
MS. CARPENETI said a community is wet unless it adopts a local
option.
SENATOR KOOKESH said Juneau would have the same problem if it
were damp. The argument that this bill will perpetuate alcohol
[problems] doesn't work for him. He lives in a village and this
is a step in the right direction. "We gotta do something."
4:11:38 PM
SENATOR FRENCH said Mr. Leinberger mentioned that Barrow had
lowered its limits below state law. He asked how an ordinance
that is different from the state statute is enforced.
MS. CARPENETI said several years ago when many communities
wanted to adopt lower limits, "they made that one of the options
that allows communities to do that." She believes Saint Mary's
did it. It allows the troopers to help enforce lower limits
because it is part of the state statute. She believes Barrow has
limits that are half the amount of state law.
4:12:56 PM
SENATOR FRENCH said he agrees that something should be done, but
he is sensitive to imposing it on them. Bethel has elected
bodies that could impose the will of the community. On the other
hand, this is a lot of liquor. He said he doesn't oppose the
bill, and he suggested that Bethel take the reigns before the
bill passes.
4:14:03 PM
DALE FOX, President and CEO, Alaska CHARR [Alaska Cabaret,
Hotel, Restaurant, and Retailers Association], Anchorage, said
one of CHARR's top priorities is reducing underage drinking. He
supports the technical fix to the minor consuming portion of SB
85. But CHARR questions the need to further limit the amount of
alcohol that can be shipped or possessed in rural Alaska.
Communities have the power to establish lower limits, and many
do. A new state law is not needed. There are several programs in
place to limit the availability of alcohol to bootleggers,
including the ABC board database that tracks sales of alcohol.
The new limits will not stop bootleggers; it may even promote
bootlegging because people who want more than the allowable
limit will turn to the illegal market. The only thing this
provision does is hurt businesses that legally retail alcohol,
and it promotes criminal behavior by those who otherwise are
law-abiding citizens. CHARR also objects to fining owners of
establishments who have employees who make a mistake. There are
already significant penalties for making the mistake of selling
alcohol to minors, including a notice of violation. Ms.
Carpeneti has said that the ABC board has never had enough
repeat problems to actually act on those. There are fines, jail
time, and closures. Selling to minors is not taken lightly, and
responsible owners do the best they can to compel their staff to
be vigilant, but fining the owner who has a large staff is
punitive and it doesn't put responsibility where it ought to be.
4:16:51 PM
SENATOR KOOKESH said his focus as a rural legislator is to find
out how to control bootlegging in rural Alaska. If this is not
the solution, what does he suggest?
MR. FOX said he doesn't have the solution. Prohibition wasn't a
solution. There are a million ways for people to get around
alcohol restrictions. That has been proven throughout history.
4:17:57 PM
LARRY HACKENMILLER, Small business person, Fairbanks, said he
was told that package stores can ship only 4.5 liters to Barrow.
Barrow is exercising its authority under local option to limit
their own alcohol to meet their specific needs. A community can
decide to be wet, dry, or damp; it is their decision. The bill
isn't necessary. It is just lowering the bar to create more
bootleggers - to make criminals out of more people. This is a
possession limit as well, so if "I have a bottle of rum sitting
there and I want to get my 10 bottles, I have to drink half of
that before I can actually have ten. That's going a little too
far in regards to what a bootlegger can do. You're making a lot
of people criminals." Bethel polices itself, and that is "one of
the keys to it." There is no solution to the alcohol problem
that he is aware of. Policing dry communities would help, but it
doesn't work that way in a small village where everyone knows
each other. The bootlegging penalties by the ABC board are
sufficient. He agrees with Mr. Fox on the rest of the bill.
There is no due process for the $1,000 fine, and it is for an
employee who served a minor. "Trust me, they don't do it
intentionally. I used to be in the business." An employee
serving a minor is usually caught during a sting operation. "The
odds are if you go to a place ten times you're probably going to
get them once or twice. You're going to catch them at a moment
where because of business or something else." If serving minors
was really a problem, then the local police would have a history
of that. But sting operations are covert operations. "Just keep
trying and sooner or later you're gonna get them." Then the
licensee is made responsible for a $1,000 fine without a
hearing. The ABC board has the authority to take that action
now. If it were a serious problem that action would be taken.
But Bethel nailed it on the head by saying it is a local option
and they have the authority to exercise that option. Changing
the limits doesn't make any difference for those communities
that are dry. If it is dropped to 10 [liters] in two months,
"that means if they have booze sitting there and the third month
shows up and they want to order 10 more, they can't." It would
make them bootleggers.
4:22:08 PM
JOSEPH MASTERS, Commissioner Designee, Department of Public
Safety, Anchorage, said the law doesn't make bootleggers out of
people who possess more than the allowed limit. If they are
caught selling alcohol, the amounts would have an affect on
whether they committed a felony or a misdemeanor. He has seen
that the more alcohol that flows into a community, the more
crimes there are. The state's solution is local option, but it
is not perfect. Since becoming commissioner he has been asked
over and over again what he will do about alcohol-related crimes
in rural Alaska and what he will do to stem the flow of alcohol
into the communities that are having such problems. A previous
testifier noted that the statutes are often changed, and that is
not necessarily a bad thing. When a statute is not working
correctly, you make adjustments. Senator Kookesh said something
needs to be done and that is an absolute truism. Communities are
asking for help in stemming the flow of alcohol. This bill does
that. It limits volumes and frequency, and it addresses concerns
that were raised about not limiting the specific amount.
4:25:56 PM
COMMISSIONER MASTERS asked if by reducing the amount from the
state limit to their own limit, did Barrow see an increase in
the abuse of other items, an increase in home brewing, or an
increase in bootleggers. If they did not, then it could be
argued that Bethel wouldn't either. Everyone is conjecturing
what may happen. DPS has a firm commitment to help communities
that choose to help themselves through local option.
4:27:27 PM
SENATOR MENARD referred to the example by Mr. Hackenmiller that
he would be in violation if his order of alcohol came when he
had half of a bottle in his home.
MS. CARPENETI said that is not correct. The 10.5 liters is a
presumption, and troopers don't go after people under those
circumstances. The limits are the amount a person can bring in
and possess without giving rise to a presumption, but people
have weddings and parties with more than that limit. Often they
call the police to say they are bringing in more alcohol for a
party, and they aren't bootlegging because they have more than
that amount.
SENATOR KOOKESH asked what does happen if a person has leftover
liquor and the second shipment comes in.
MS. CARPENETI said the presumption is that you possess it for
sale, which would be bootlegging, but it can be rebutted. She
was told by a trooper that they don't pursue cases of normal
citizens who have leftovers from the last shipment.
4:30:15 PM
SENATOR FRENCH said it is more about how much can be shipped
than can be possessed. It is aimed more at the liquor stores in
Anchorage that ship to the Bush rather than the recipient. The
presumption is in AS 04.110.10 C, and he doesn't see that
provision in the CS.
MS. CARPENETI said the CS doesn't address that presumption.
SENATOR FRENCH said the presumption is left where it is.
MS. CARPENETI said yes.
CHAIR OLSON asked how the police know if a person is planning on
selling it or not. "Isn't that kind of like "thought police"?
4:31:38 PM
MS. CARPENETI said no, the police find people when they are
selling alcohol illegally.
COMMISSIONER MASTERS said Ms. Carpeneti is correct.
4:32:21 PM
CHAIR OLSON closed public testimony.
SENATOR KOOKESH said he hears the argument that if alcohol is
limited in rural Alaska, it makes alcohol more expensive and the
use of alternative substances will increase. The opposite
argument is that bootlegging is controlled by making alcohol
plentiful and cheap. That kind of logic doesn't work. He comes
from rural Alaska and not one constituent has called him in
opposition. He hears people ask him to do something about
alcohol. "This is the only train at the station right now: to
limit the amount that you can send into rural Alaska."
Businesses may suffer, but his job is to worry about the lives
of his constituents. The next step may be asking for and paying
for better enforcement. This is one step of the journey. "We
need to pass this bill ... because we need to do something."
Even if it is just a message to the people, that is something.
4:34:19 PM
SENATOR FRENCH said the bill is ready to go, but it makes him
pause to limit beer for folks who have served the country. The
bill is aimed mostly at shipping alcohol, but three beers per
day is not that much and this bill may limit that. Maybe the
next committee will tweak the numbers. If a person combines all
the allowable limits, it is way too much. But most people don't
do that. A person may be just a wine drinker and the amount of
wine is not extraordinary.
SENATOR KOOKESH said, "Why do you call a quart a fifth in a
village? Because there are only five drinks in it. I've seen
that bottle go around a group of people and maybe five people
will drink it and maybe that's the only thing they've got, and
they'll drink it fast because it may not come around again."
4:36:49 PM
SENATOR FRENCH moved to report the CS to SB 85, labeled 26-
GS1009\R, from committee with individual recommendations and
attached fiscal note(s). There being no objection, CSSB 85(STA)
moved out of committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB85 Kent Harding Testimony.pdf |
SCRA 2/17/2009 3:30:00 PM |
SB 85 |
| SB85 Lucy Apatiki Letter.pdf |
SCRA 2/17/2009 3:30:00 PM |
SB 85 |