Legislature(2007 - 2008)BARNES 124
04/12/2007 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
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| Adjourn |
* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 232 | TELECONFERENCED | |
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ALASKA STATE LEGISLATURE
HOUSE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
April 12, 2007
8:03 a.m.
MEMBERS PRESENT
Representative Anna Fairclough, Co-Chair
Representative Gabrielle LeDoux, Co-Chair
Representative Mark Neuman
Representative Kurt Olson
Representative Sharon Cissna
Representative Woodie Salmon
MEMBERS ABSENT
Representative Nancy Dahlstrom
COMMITTEE CALENDAR
HOUSE BILL NO. 232
"An Act relating to the sale, distribution, and purchase of
alcoholic beverages; relating to a state database for records of
certain purchases of alcoholic beverages; relating to the
relocation of a license to sell alcoholic beverages; relating to
procedures for local option elections for control of alcoholic
beverages; and providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 232
SHORT TITLE: ALCOHOL SALE/PURCHASE/DISTRIBUTION
SPONSOR(s): REPRESENTATIVE(s) MEYER
04/04/07 (H) READ THE FIRST TIME - REFERRALS
04/04/07 (H) CRA, JUD, FIN
04/12/07 (H) CRA AT 8:00 AM BARNES 124
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 232.
TALIS COLBERG, Acting Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 232, answered
questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 232, answered
questions.
DOUGLAS GRIFFIN, Director
Alcoholic Beverage Control Board
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 232, answered
questions.
RODNEY DIAL, Lieutenant, Deputy Commander
A Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Ketchikan, Alaska
POSITION STATEMENT: During hearing of HB 232, answered
questions.
ACTION NARRATIVE
CO-CHAIR GABRIELLE LEDOUX called the House Community and
Regional Affairs Standing Committee meeting to order at 8:03:48
AM. Representatives Neuman, Olson, Cissna, LeDoux, and
Fairclough were present at the call to order. Representative
Salmon arrived as the meeting was in progress.
HB 232-ALCOHOL SALE/PURCHASE/DISTRIBUTION
8:04:09 AM
CO-CHAIR LEDOUX announced that the only order of business would
be HOUSE BILL NO. 232, "An Act relating to the sale,
distribution, and purchase of alcoholic beverages; relating to a
state database for records of certain purchases of alcoholic
beverages; relating to the relocation of a license to sell
alcoholic beverages; relating to procedures for local option
elections for control of alcoholic beverages; and providing for
an effective date."
8:04:49 AM
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
began by informing the committee that in 2004 the federal
government established the Alaska Rural Justice & Law
Enforcement Commission ("Commission") to study various aspects
of rural justice services. The Commission recommended several
changes to Alaska statutes governing the sale and possession of
alcohol in Alaskan communities. Last year the legislature
passed the first part of the recommendations and HB 232 embodies
the second phase of the Commission's recommendations. The main
focus of HB 232 is the creation of a database for package store
licensees to track written orders to damp communities, the
prohibition of purchasing alcohol from someone in a dry
community, the extension of the period before a local election
can be held to overturn a vote to become dry or damp, and the
establishment of a pilot project for alcohol delivery sites in
Kotzebue and Bethel. This legislation also contains cleanup
language dealing with forfeiture laws, possession of ingredients
for homebrew, and the transfer of liquor licensees from within
large hub communities of an organized borough to within the city
limits. Representative Meyer related that he introduced HB 232
at the request of the Department of Labor & Workforce
Development (DLWD).
8:07:27 AM
REPRESENTATIVE NEUMAN, referring to the fiscal notes,
highlighted that $269,000 is being spent for the construction of
a database. He surmised that the sponsor will try to ensure
that the aforementioned expenditure will be spent in Alaska.
REPRESENTATIVE MEYER characterized the fiscal note as a start
and opined that the fiscal note is so high because of the
initial cost of the database. Once the database is in place,
the costs should decrease. Representative Meyer said that the
fiscal note will be scrutinized more closely as the legislation
progresses. With regard to the expenditure being spent in
Alaska, Representative Meyer said he didn't see any reason why
it couldn't be.
8:08:37 AM
REPRESENTATIVE CISSNA asked what databases and information are
currently available.
REPRESENTATIVE MEYER said that he hasn't done much research on
the database and what's available. However, he related his
understanding that the Department of Law (DOL) has.
8:09:34 AM
CO-CHAIR LEDOUX, referring to Section 10 and the possession of
ingredients for homebrew, opined that the ingredients are fairly
common items one might normally have in his/her pantry.
Therefore, she questioned at what point one would determine
there is intent to use those ingredients for homebrew.
REPRESENTATIVE MEYER deferred to DOL.
8:10:56 AM
TALIS COLBERG, Acting Attorney General, Department of Law (DOL),
said that [the determination that the ingredients are intended
to be used for homebrew] would depend upon the circumstances and
amount in which the ingredients are discovered. Mr. Colberg
pointed out that the attorney general is automatically placed on
the Commission as one of its co-chairs. The other co-chair is
Nelson Cohen, the U.S. Federal District Attorney in Anchorage.
The Commission was basically created by U.S. Senator Ted Stevens
to provide funding for the Department of Justice at the federal
level. Basically, the U.S. Attorney General selects the members
of the Commission. Four new members, including the attorney
general, have been placed on the Commission in the last few
months. Mr. Colberg highlighted that the Commission was created
to address four specific issues, including addressing alcohol
problems in rural Alaska. In attempting to address the
aforementioned, the Commission established several committees
that met throughout the state in order to develop suggestions.
Several hundred suggestions were compiled to improve the
interdiction of alcohol in damp and dry villages. Of all the
suggestions put forward, the ones before the committee today are
those that seem to be the most workable, reasonable, and most
likely to have some significant impact. In fact, it's believed
that the creation of the database will improve the statistics
[related to alcohol problems]. Mr. Colberg asked that the
committee move HB 232 forward.
8:16:13 AM
CO-CHAIR FAIRCLOUGH inquired as to how interstate distributors
will be made aware of the database.
8:16:56 AM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL), said
that although [the database] is problematic for out-of-state
distributors, not that many do send alcohol in response to
written orders. Still, distributors are required to know which
communities are damp and which are dry. She surmised that as
the database matures, there will likely be adjustments to
address those distributors who do send alcohol from out-of-
state. At this point, the legislation addresses a database for
in-state distributors.
CO-CHAIR FAIRCLOUGH related her understanding that there is an
existing database within the Department of Revenue (DOR) that
she assumed is through an alcohol taxing function and thus those
distributors, particularly in the Seattle region, are known.
She highlighted the importance of notifying people up-front of
laws that are changing.
8:18:52 AM
MS. CARPENETI said that's an excellent idea.
REPRESENTATIVE NEUMAN, referring to Section 8, related his
understanding that it would take away a local option related to
elections, and expressed concern with that. Representative
Neuman related his support for local control. He then asked how
long the original periods for an election to remove a local
option or change to a less restrictive option were in place. He
further asked if the changes to those dates were changed after
consultation with the communities.
MR. COLBERG said he wouldn't characterize [Section 8] as taking
away control, given that the original control of when the
elections occur is mandated by the state. In further response
to Representative Neuman, Mr. Colberg pointed out that the
enactment [of those election dates] was in 1995, and thus it has
been in place for 12 years.
8:22:17 AM
REPRESENTATIVE NEUMAN asked why the dates for elections have
been extended. Again, he reiterated his belief that this takes
away local control.
MS. CARPENETI surmised that the Commission received input from
the local communities that suggested it would be appropriate to
provide more time for these local options to be enforced before
having another election. These time limits were set when the
local option laws were adopted.
REPRESENTATIVE NEUMAN inquired as to DOL's opinion with regard
to making the adoption of Section 8 an option for local
communities.
MR. COLBERG said that if Representative Neuman is envisioning a
situation in which communities across rural Alaska would have
multiple opportunities to have different timeframes for their
elections on a case-by-case basis that would seem to abdicate
the state's power to control elections to the local level. The
aforementioned may create a system that is harder to regulate.
If the election timeframe was truly turned over to local choice,
some parameters would need to be established, which would still
take some control from the local communities. He opined that a
limit will have to be set at some point. He related his guess
that with a one-year timeframe, there's such a short time that
those who are avoiding compliance can purchase a lot of alcohol.
Furthermore, a two-year timeframe isn't inconsistent with a
fairly standard election cycle across the state. Mr. Colberg
said that the legislation isn't trying to take away local power
to determine things because the local power is the voting
itself.
8:27:41 AM
DOUGLAS GRIFFIN, Director, Alcoholic Beverage Control Board
("ABC Board"), Department of Public Safety (DPS), informed the
committee that he also served on the Alcohol Control Working
Group, which made recommendations to the Commission. The
concept behind [Section 8] is that there might be a very vocal
minority that constantly wants to bring the issue of a
community's status forward for placement on the ballot. He
opined that sometimes more time is needed to let these things
work out and become part of the local community's law
enforcement plan. The idea, he explained, was to extend the
time between those types of elections in which people are trying
to push a community to a less restrictive option in order to
provide time for the dry or damp status to work. Mr. Griffin
highlighted that statistics show that alcohol is a huge problem
in rural Alaska. Communities that have chosen to go dry are
generally healthier and safer than locations where it's legal to
possess alcohol based on the various standards that are used to
measure such things. Therefore, he related that it was thought
that lengthening the time during which communities could be dry
between elections would result in safer communities.
REPRESENTATIVE NEUMAN reiterated that his concern revolves
around allowing communities to maintain local control.
8:31:04 AM
REPRESENTATIVE CISSNA related her agreement with Representative
Neuman that the power does belong with those in communities.
She then recalled her experience in the publication business
during which she [observed] steady large amounts of money that
is often spent attempting to open up dry/damp communities to
alcohol. Alcohol abuse is costing the state so much, she
emphasized. Representative Cissna opined that this legislation
begins to return power to communities that "have had it bought
away." She then asked if HB 232 addresses the situation in
which there are forms to order alcohol at counters of the local
airports. She asked whether HB 232 addresses that.
MS. CARPENETI said HB 232 doesn't address that issue.
MR. GRIFFIN said he's unable to comment specifically about the
forms to which Representative Cissna spoke. However, he related
that most alcohol that's shipped to damp communities in rural
Alaska, such as Bethel and Kotzebue, is done through a process
specified in statute and the regulations of the ABC Board. The
aforementioned is commonly referred to as shipment by written
order. He acknowledged that it's a fairly bureaucratic process
because there are many safeguards, but it's the process by which
those who live in an area with no liquor licensed outlets,
package stores, or bars can legally purchase alcoholic beverages
in a limited amount. The amount is limited on a monthly basis.
The database is designed to address that whole process. He
noted that there are prohibitions against advertising, and thus
the situation to which Representative Cissna mentioned would
seem to run afoul of that prohibition. He mentioned that Bethel
is the largest community that has residents who purchase much of
their alcohol by written order primarily from Anchorage.
8:37:08 AM
MS. CARPENETI pointed out that HB 232 does try to regulate and
limit violations of the laws related to ordering by written
order from damp communities. In further response to
Representative Cissna, Ms. Carpeneti related her understanding
that regulations and statutes would prohibit such a written
order form being available on state counters. She did offer to
double-check with Mr. Griffin on this matter.
8:38:53 AM
CO-CHAIR FAIRCLOUGH related her understanding of Section 8,
which refers to subsections (b) and (c) of [AS 04.11.507], that
the only local communities that would be affected are those that
have already voted to go dry or damp. Therefore, the local
option and the change to the local option are limited to very
few communities in the state.
MR. COLBERG pointed out that this would impact any community
that has already chosen the local option of damp or dry or do so
later.
CO-CHAIR FAIRCLOUGH commented, "Those communities would already
have an existing law, so it wouldn't change them. They'd know
what they were voting into in that manner." She then pointed
out that the committee packet does include a letter by the
Tanana Chiefs Conference relating its support of that particular
change. The committee packet also includes a letter from
Kawerak.
8:41:05 AM
MR. COLBERG highlighted that several hundred people from rural
Alaska were involved in the work groups that resulted [in this
legislation].
REPRESENTATIVE SALMON pointed out that although local option
laws sound good, without enforcement resources they are rendered
somewhat moot. The State Troopers in the rural areas are busy
with more serious crimes. For example, in Fort Yukon there have
been bootleggers in operation for 30 years and no one has done
anything about it. Representative Salmon then expressed his
concern with Section 10, because it's not uncommon for residents
of rural villages to have 100 pounds of flour, sugar, or yeast
as those are common baking ingredients. He indicated that he
was troubled by the language as it seems to leave interpretation
to the officer.
MR. COLBERG said that one of the other reasons the Commission
was established was to address the issue of Village Public
Safety Officers and Tribal Police Officers in order to create
uniformity of standards. There was also discussion of the
understood absence of enforcement at the local level in [rural
Alaska]. He acknowledged that it is related to funding and
noted his agreement with Representative Salmon that absent an
enforcement presence, the laws don't mean much. The Commission
is also trying to address the aforementioned, and therefore the
Commission may ultimately make recommendations in that regard.
With regard to Section 10, he reiterated that the mere
possession of the ingredients isn't sufficient to trigger the
law but rather there must also be intent. Mr. Colberg opined
that he presumes that law enforcement officers would have some
sense of what's actionable, triggers intent, and what's likely
to be a successful prosecution. Therefore, it's unlikely that
intent would be triggered merely by having the ingredients in a
kitchen without other circumstances present.
8:46:21 AM
CO-CHAIR LEDOUX, referring to Section 3, inquired as to the
rationale for prohibiting a purchaser from having alcohol
shipped to another address than that specified in the database.
MR. COLBERG said that it's an attempt to avoid someone in a damp
community from doing serial purchasing via friends and
acquaintances in order to circumvent the intent of the law.
MS. CARPENETI explained that Section 3 provides another way to
try to limit bootlegging via written order.
CO-CHAIR LEDOUX posed a situation in which a resident of a [dry]
village couldn't order alcohol to be shipped to a damp/wet
community where that resident may want to have a party when
visiting relatives there.
MS. CARPENETI said that in such a situation, the individual
could purchase the alcohol once in the damp/wet community or
have a resident of the damp/wet community order the alcohol.
The purpose of HB 232 is to prohibit residents of dry villages
from getting residents of damp villages to order alcohol for
them to be brought into the dry village. In further response to
Co-Chair LeDoux, Ms. Carpeneti confirmed that HB 232 prohibits
someone from ordering alcohol for someone else in violation of a
local option law since that's a way around the local option
laws. Currently, there's no way for one liquor store to know if
another liquor store has already sent the amount presumed to be
under the amount that can be possessed with the intent not to
sell.
8:49:56 AM
CO-CHAIR LEDOUX related her understanding then that the
government, under HB 232, will now keep a list of how much
alcohol those in villages order. She asked if the government is
going to keep a database on the drinking habits of individuals.
MS. CARPENETI clarified that the database isn't being kept to
keep records on an individual's drinking habits. The database,
she explained, allows the tracking of bootleggers who order from
several different alcohol distributors to ensure that folks
aren't going over the legal monthly amount for written orders of
alcohol. The intent isn't to allow the state to monitor an
individual's drinking habits, she said.
CO-CHAIR LEDOUX acknowledged that the aforementioned is the
purpose, but pointed out that it does generate a record of
individuals' drinking habits.
MS. CARPENETI said that she's open to suggestions and pointed
out that the legislation specifies that this information can
only be used to ensure that the purchases aren't in excess of
the monthly amount allowed by law. Furthermore, the information
is confidential and not discoverable by anyone. Ms. Carpeneti
acknowledged Co-Chair LeDoux's concern with regard to privacy,
but reiterated that [the database] provides a good tool by which
to limit bootlegging.
8:52:43 AM
REPRESENTATIVE OLSON informed the committee that those who
purchase alcohol at Safeway and Fred Meyer and use their reward
card are already tracked. He then inquired as to what HB 232
does to address the "poison of choice in Kotzebue currently for
the kids", which is cheap perfume, gasoline, and spray paint.
MR. COLBERG answered that HB 232 focuses on alcohol. He
acknowledged that the items to which Representative Olson
referred are serious issues and he indicated that an argument
could be made that if alcohol is made less available [the abuse
of other items] might actually increase.
REPRESENTATIVE OLSON related his understanding from the
individual who runs the recreation center in Kotzebue that the
greatest crisis in Kotzebue is the abuse of inhalants, such as
from cheap perfume. Representative Olson suggested that HB 232
should be held over and input obtained from other Bush
legislators.
MR. COLBERG reminded the committee that HB 232 is dealing with
what is generally presumed to be a legal substance that's
regulated.
REPRESENTATIVE OLSON pointed out that all the items he mentioned
are legal and available to underage individuals.
8:55:35 AM
REPRESENTATIVE CISSNA requested a copy of the recommendations
made by the Commission as it would be very instructive.
MR. COLBERG offered to provide a copy.
REPRESENTATIVE CISSNA inquired as to what records are kept for
illegal substances such as cocaine and heroin.
8:57:22 AM
MS. CARPENETI pointed out that cocaine and heroin are illegal
substances that aren't regulated and thus she said she wasn't
aware of any type of data collection on cocaine. However, law
enforcement does have records in terms of prosecutions and
investigations. She noted that some data is probably being
generated due to the legislation adopted last year related to
precursors for methamphetamines. She offered to research that
issue further.
MR. COLBERG mentioned that the data would relate to indicted or
confiscated items, which wouldn't necessarily be an accurate
illustration of what's out there.
8:59:01 AM
REPRESENTATIVE CISSNA asked whether the Department of Public
Safety collects data that would pinpoint illegal substances.
9:00:14 AM
RODNEY DIAL, Lieutenant, Deputy Commander, A Detachment,
Division of Alaska State Troopers, Department of Public Safety
(DPS), said that there's an [intelligence] unit that tracks
information on groups and specific individuals.
CO-CHAIR LEDOUX, upon determining no one else wished to testify,
closed public testimony.
9:01:36 AM
REPRESENTATIVE SALMON opined that Section 10 needs more work
because the ingredients are common household products, and
therefore the intent could be mischaracterized depending on the
individual law enforcement officer's view.
CO-CHAIR LEDOUX concurred.
REPRESENTATIVE NEUMAN pointed out that the intent is part of the
discovery process by the individual law enforcement officer,
which is a lot of authority. He questioned whether there should
be a court order or discovery process that's decided by a public
official. He mentioned his concern with regard to the
possibility of instances of harassment. Representative Neuman
said that although he likes the intent of the bill, he isn't
comfortable with the tracking of alcoholic purchases even though
he acknowledged the bootlegging argument.
9:04:26 AM
REPRESENTATIVE CISSNA said she could envision the possibility of
harassment. She suggested that perhaps Section 10 ought to be
rewritten to ensure that records will be kept only in the case
of prosecution rather than having the information available in
such a way [that harassment could occur].
MS. CARPENETI offered her belief that this will be very
difficult to prosecute because it will have to be shown, beyond
a reasonable doubt, that a person possessing the ingredients did
so with the specific intent of making homebrew. Specific intent
is difficult to prove. Therefore, Ms. Carpeneti suspected that
beyond the possession of ingredients, machinery or equipment
would have to be possessed; even still it would be difficult to
prove because of the need to prove beyond a reasonable doubt the
intent to make homebrew. She pointed out that there are similar
statutes in the state's drug laws. For example, it's a class B
felony to possess precursors of methamphetamine, which are also
common ingredients, with the specific intent of manufacturing
methamphetamine or some iteration of it. Although such isn't
prosecuted often, it's a good tool to have when the evidence is
available and it can be proven that the individuals possess the
ingredients and equipment with the intent to make homebrew.
CO-CHAIR LEDOUX clarified that her concern is that since it's
"on the books," it opens up the possibility of harassment. Even
if the district attorney says there isn't [enough evidence to
prove intent to make homebrew], the individual has still
undergone an arrest and attorney's fees.
9:08:54 AM
REPRESENTATIVE CISSNA again suggested altering Section 10 such
that [information obtained through the database] can only be
used as evidence when proving someone's guilt in a court.
CO-CHAIR LEDOUX pointed out that all of the state's laws are on
the books for prosecution purposes and no other law specifies
that [any information garnered] isn't supposed to be used to
harass others. Clearly, the information isn't supposed to be
used to harass people, but it is in some cases.
REPRESENTATIVE CISSNA agreed, but opined that law enforcement
could misread this language and harass someone in remote areas
of the state. Representative Cissna explained that she merely
wants to [avoid harassment] while allowing the information to be
used when investigations are made.
9:11:51 AM
MS. CARPENETI commented that any criminal law could be used to
harass someone. As a prosecutor, Ms. Carpeneti opined that law
enforcement does a great job and it would be an unusual case
when they would be overdoing it. She offered to work with the
committee to address [the concerns].
9:12:46 AM
REPRESENTATIVE OLSON reiterated his belief that the committee
should solicit input from Bush members.
CO-CHAIR LEDOUX concurred and suggested holding HB 232 over for
the purpose of gathering input from the Bush caucus.
REPRESENTATIVE NEUMAN concurred and then suggested that perhaps
language describing the term "intent" in Section 10 could be
included.
9:14:36 AM
CO-CHAIR FAIRCLOUGH reviewed the issues for which there are
concerns, including the concern pertaining to privacy issues
related to the database. She then turned to the concern
regarding precursors for which she had a conceptual amendment.
The conceptual amendment would on page 5, line 29, change the
language such that it would read: "may not possess quantities
of sugar, artificial sugar, malt, yeast that exceed personal use
in excess of one year with the specific intent to use the
material or equipment to create an alcoholic beverage provided
beyond a reasonable doubt." Co-Chair Fairclough opined that
it's valid to request a copy of the study because those who have
met for the last two years to discuss this issue did provide
comments supporting the extended election period.
[Following was a brief discussion regarding when the committee
would meet next to hear HB 232; HB 232 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Community and Regional Affairs Standing Committee meeting was
adjourned at 9:18 a.m.
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