Legislature(2003 - 2004)
04/26/2004 08:06 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 188-BAIL SCHEDULE FOR SKIING VIOLATION REPRESENTATIVE MIKE HAWKER, sponsor of HB 188, told members he introduced this legislation at the request of the downhill ski industry in Alaska. The purpose of HB 188 is to complete the implementation of the Alaska Ski Safety Act (ASSA), which was passed by the Eighteenth Legislature in 1994. He noted that Representative Kerttula co-sponsored this legislation. Her father carried the original ASSA. He explained that in 1994, the fact that Alaskans valued downhill skiing as a sport and had a great opportunity to develop winter tourism was recognized. The ski industry was fairly unregulated but as large ski areas were being developed, the need to adopt regulations to define the rights and responsibilities of both the operators and users of ski areas became apparent. The ASSA attempted to do that and put quite a few burdens on the operators of ski areas, regarding patrol, safe ski lifts, etcetera, to make the sport as safe as possible. While that act recognized the duties of operators, it also required affirmative duties of skiers by expecting the skier to know the range of his ability. However, a number of particular offenses that have presented sufficient danger were not included in the original act, and the industry has asked that it be able to fine skiers for those offenses to deter unsafe and inappropriate behavior. He emphasized that HB 188 does not change any of the aspects of the ASSA. Its purpose is to clear up two problems. He explained the first addition as follows: The first section really makes a change. It eliminates this tag line that says...a person...[that] violates a provision of certain sections is guilty of a violation. The commissioner of the Department of Natural Resources shall authorize people to issue these citations, but another tag line says within a ski area over which the state has jurisdiction. Now, that's become an item of some confusion, as we've had a couple of changes in administration since 1994 and with people in the Department of Natural Resources, and the ski industry itself. As I talk to members of the ski industry, their interpretation of that original provision was that that was there to distinguish federal from state jurisdiction so that the state was not trying to pass laws or regulations that would be trying to regulate federal operations, which we could not do. They wanted to include - within state jurisdiction, it's sort of like you know, saying, there's the primary law enforcement over the area - that would include both areas operated by the state itself as well as private operations operating within the state in an area that's under state jurisdiction. CHAIR SEEKINS clarified that state jurisdiction would apply on federal property unless otherwise provided. REPRESENTATIVE HAWKER said that is what was at issue: who had jurisdiction where. He added that this bill enjoys the support of both the Department of Natural Resources (DNR) and the ski industry and both want to make it very clear that it applies to any ski area, not only those operated by the State of Alaska. REPRESENTATIVE HAWKER continued: The second [change] was the original ski safety act in 1994 contemplated that the Supreme Court would establish a bail forfeiture schedule for those violations specified in the section referenced in the bill here, which, in the sponsor statement, I've attached an addendum to that. These are specific items in Section 05.45.100 that were identified within the bill as being those activities that a person could do that we wanted to discourage with the greatest possible deterrents. You'll find that in the very end of the package there is a letter from the Eaglecrest Ski Area, which summarizes at page 2 the bail schedule that had been proposed by DNR back in 1994. It basically moves the schedule of fees for these violations from $50 to $150 for several of the violations. I want to emphasize that none of these violations for which a bail forfeiture schedule is contemplated have anything to do with judgmental calls on a skier's ability to ski. These are not speeding tickets for skiing too fast. This is not giving the ski patrol the ability to go out there and essentially be a police force on the ski slope but these are items that are very objectively determined - having a collision, leaving someone injured, skiing in a closed area, skiing or riding lifts under the influence of drugs and alcohol, crossing the track of an uphill lift, using skis without stopping devices - obviously something could become a missile going downhill, and skiing in a closed area. The Supreme Court has also - and in your package are two letters that are particularly succinct about this, and their statement was quite simply that the Supreme Court does not believe there is clear authorization in the statute to establish the bail schedule. And so Section 2 gives very clear and succinct direction to establish the bail forfeiture schedule and, again, the Supreme Court shall establish by rule or order a schedule of bail amounts, which may be forfeited without a court appearance for a violation of c or g. The third section follows up that point of without a court appearance - I mean this is not a criminal activity; this is just something you want to discourage. The penalty is only - these offenses are classified as violations, which are punishable only by a small fine. The third section of the bill goes to the point of law where these sort of issues are dealt with and this is AS 12.25.180 and 190, which are really part of the arrest and citation section of the Code of Criminal Procedure where we specifically exempt any citation issued under the ski safety act from having the requirement that an individual appear in person should they forfeit their bail on this. Other areas of citations where we've got bail schedules in the state that are similar are motor vehicle citations with a bail fine schedule, fish and game violations with a bail schedule, obviously the proposal is to add the ski safety act. We've also got the parks and recreational facilities, littering citations and ...also the Boating Safety Act citations. That third section, again, is specifically saying that when you issue a citation here, the citation does not have to have a written promise to appear in court since it's at best addressed only by a fine if offered. We do have available today to present both the Department of Natural Resources and representatives of the Alaska ski industry, should you wish to query them any, sir. 8:30 a.m. SENATOR FRENCH asked if the ski industry could currently be issuing citations for each of the offenses if it wanted to. MR. HAWKER said his understanding is that under the existing structure, the violation schedule is punishable today by a $50 fine. He added that the bill would authorize the Supreme Court to establish a bail schedule. SENATOR FRENCH referenced the bail schedule in the Eaglecrest Ski Area letter and asked if they are suggestions to the Supreme Court. MR. HAWKER said that is his understanding and that DNR proposed that schedule to the Supreme Court in 1994 when the court said it had no authority to adopt it. SENATOR FRENCH expressed concern that right now a person could be cited for a $50 violation and will lose the lift ticket. He believes that is a severe enough penalty for many of the offenses. CHAIR SEEKINS believed the proposed bail schedule contains ceilings for the fines rather than mandatory amounts. He added that many fines are suspended upon condition of no recurrence. He believes the point of the bail schedule is to provide a meaningful penalty to prevent people from endangering others. REPRESENTATIVE HAWKER felt Chair Seekins' analysis is right on point and that Commissioner Irwin would support that analysis also. He pointed out there is particular concern about skiing in closed areas, therefore the fine needs to be sufficient to discourage that activity. If an area was closed because of avalanche danger, that activity could expose a large number of people to injury. CHAIR SEEKINS asked about the definition of "peace officer" in the bill. REPRESENTATIVE HAWKER acknowledged that section is confusing because peace officers are not involved in ski safety act activities; that act applies to ski operators and DNR. He explained: If you notice, it moves into Alaska statute section 12, which is the Code of Criminal Procedure, and this is generically a section excluding certain citations from having this mandatory requirement to appear. In this context the word 'peace officer,' which is typically - I guess the paragraph is prefaced by...'a person cited for the crime shall give a written promise to appear in court by signing at least one copy of a written citation prepared by the peace officer'. That is the general rule when, in this state, someone has committed a crime and is being cited by a police officer for it. Then the next paragraph is where it becomes operative and that is 'the written promise requirement does not apply to boating citations' and all the rest of these. The implication that it involves a requirement that a peace officer issue the citation is...not contemplated or required under the ski safety act. This is strictly a violation activity managed by the Department of Natural Resources and folks designated by the commissioner to be part of the process, not involving peace officers. CHAIR SEEKINS indicated that several people have inquired about that section and thanked Representative Hawker for the explanation. He then asked Representative Hawker if his intent is to create a more serious deterrent for those people who knowingly put the life and safety of other individuals at stake through bad practices on ski slopes. REPRESENTATIVE HAWKER said that is correct, within the larger context of promoting a vibrant downhill ski industry in Alaska. SENATOR OGAN asked about places like Hatcher Pass where people ski and snowmachine but there is no operator. REPRESENTATIVE HAWKER answered the definition section of the ski safety act, which is AS 05.45.200, specifically provides that a ski area means downhill ski slopes, trails or places under the control of a downhill ski area operator. A ski area does not include a cross-country ski trail, even if owned by an operator. HB 188 does not affect open land that is not commercially developed as a downhill ski area. CHAIR SEEKINS agreed with Senator Ogan that people who put other people's lives in danger on unmanaged slopes should be penalized. SENATOR OGAN pointed out that the state does not have the resources to pay for avalanche forecasting but if he were a park ranger he would hire an avalanche expert. He felt that modifying the bill to allow state parks to close, particularly Chugach State Park, when hazardous conditions exist would be wise. He pointed out that whenever a rescue team is engaged in a search after an avalanche, 50 people's lives are put at risk. CHAIR SEEKINS took public testimony. MR. LARRY DANIELS, ski area general manager, Alyeska Resort, stated support for HB 188. He said this legislation simply completes the 1994 ski safety act as originally contemplated. The ski safety act has been beneficial over the years as it specifies both the skiers and operators' responsibilities. HB 188 will provide enforcement power for the ski safety act. He described some of the violations that occur and the dangers caused by those violations. MR. DAVID WILSON, mountain manager, Alyeska Resort, told members that Alyeska Resort has kept violation records for three years, which show a decrease in the number of violations cited. Four of those violations were very serious: collision, jumping from the chairlift, ticket fraud, and skiing in a closed area. Most citations are issued for skiing in closed areas. In the 2000- 2001 season, DNR issued five citations; in 2001-2002 it issued one citation. He emphasized that citations are not issued arbitrarily. They are used as deterrents. SENATOR FRENCH asked Mr. Wilson if the resort has the authority now to issue citations. MR. WILSON said Alyeska Resort notifies DNR, which issues the citations. SENATOR FRENCH remarked that HB 188 would allow the ski area operator to pick folks to issue citations and asked Mr. Wilson if Alyeska Resort has discussed that possibility. MR. DANIELS replied that Alyeska's staff would not directly issue citations. They would take recommendations to DNR staff, which would decide whether to issue the citations. CHAIR SEEKINS affirmed that Senator French's interpretation is correct in that the bill allows the commissioner of DNR to authorize individuals to issue citations. REPRESENTATIVE HAWKER reminded members that language is in current statute. There being no further participants, CHAIR SEEKINS closed public testimony. SENATOR OGAN repeated his belief that the committee should consider including state park closures in the bill. CHAIR SEEKINS noted that would require a title change. SENATOR OGAN said he would only want to make that change with the sponsor's concurrence. TAPE 04-52, SIDE B REPRESENTATIVE HAWKER responded that although he feels Senator Ogan's concern is legitimate, he would prefer to keep the bill as is. He noted this legislation is specific to organized ski areas and the ski safety act and he has not even looked into any other statutes that apply to mechanized sports. CHAIR SEEKINS cautioned that any legislation that pertains to mechanized vehicles would entail a great deal of public input so he would prefer not to burden HB 188 with that discussion at this late date in the session. SENATOR FRENCH commented that he feels lukewarm about this bill if Alyeska only issued six citations in two years. He believes HB 188 is an attempt to fix something that is not broken. CHAIR SEEKINS announced he would hold the bill until the entire committee is present.