03/04/2008 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| HB327 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 327 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
March 4, 2008
8:04 a.m.
MEMBERS PRESENT
Representative Anna Fairclough, Co-Chair
Representative Gabrielle LeDoux, Co-Chair
Representative Nancy Dahlstrom
Representative Mark Neuman
Representative Kurt Olson
Representative Sharon Cissna
Representative Woodie Salmon
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 327
"An Act relating to shipping, sending, transporting, or bringing
alcohol to a local option area and providing alcohol to others
in the local option area, including penalties for violations;
relating to furnishing alcohol to a minor and to civil penalties
for licensees whose agents or employees furnish alcohol to a
minor; relating to manslaughter as a direct result of ingestion
of alcoholic beverages brought in violation of a local option
prohibition; relating to reports of the court concerning certain
alcohol violations by minors; making conforming amendments; and
providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 327
SHORT TITLE: ALCOHOL: LOCAL OPTION/LICENSING/MINORS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/17/08 (H) READ THE FIRST TIME - REFERRALS
01/17/08 (H) CRA, JUD, FIN
01/31/08 (H) CRA AT 8:00 AM BARNES 124
01/31/08 (H) <Bill Hearing Postponed to 02/05/08>
02/05/08 (H) CRA AT 8:00 AM BARNES 124
02/05/08 (H) Heard & Held
02/05/08 (H) MINUTE(CRA)
02/21/08 (H) CRA AT 8:00 AM BARNES 124
02/21/08 (H) Heard & Held
02/21/08 (H) MINUTE(CRA)
03/04/08 (H) CRA AT 8:00 AM BARNES 124
WITNESS REGISTER
REPRESENTATIVE MARY NELSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided comments on HB 327.
JOHN GLICK, Major, Deputy Director
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 327, answered
questions.
REPRESENTATIVE JAY RAMRAS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Expressed concerns with HB 327.
DOUGLAS GRIFFIN, Director
Alcoholic Beverage Control Board ("ABC Board")
Department of Public Safety
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 327, provided
information and answered questions.
GLENN BRADY, Chairman
Board of Directors
Cabaret Hotel Restaurant & Retailer's Association (CHARR);
Owner, Silver Gulch Brewing Company
Fairbanks, Alaska
POSITION STATEMENT: Expressed serious concerns about the intent
of HB 327.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section
Criminal Division
Department of Law
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 327, answered
questions.
DIANE CASTO, Section Manager
Prevention and Early Intervention Section
Division of Behavioral Health
Department of Health and Social Services
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 327, provided
information and answered questions.
DALE FOX, President
Cabaret Hotel Restaurant & Retailer's Association (CHARR)
Anchorage, Alaska
POSITION STATEMENT: Expressed concerns with HB 327.
ACTION NARRATIVE
CO-CHAIR GABRIELLE LEDOUX called the House Community and
Regional Affairs Standing Committee meeting to order at 8:04:17
AM. Representatives LeDoux, Fairclough, Dahlstrom, and Neuman
were present at the call to order. Representatives Olson,
Cissna, and Salmon arrived as the meeting was in progress.
HB 327-ALCOHOL: LOCAL OPTION/LICENSING/MINORS
8:04:43 AM
CO-CHAIR LEDOUX announced that the only order of business would
be HOUSE BILL NO. 327, "An Act relating to shipping, sending,
transporting, or bringing alcohol to a local option area and
providing alcohol to others in the local option area, including
penalties for violations; relating to furnishing alcohol to a
minor and to civil penalties for licensees whose agents or
employees furnish alcohol to a minor; relating to manslaughter
as a direct result of ingestion of alcoholic beverages brought
in violation of a local option prohibition; relating to reports
of the court concerning certain alcohol violations by minors;
making conforming amendments; and providing for an effective
date."
CO-CHAIR LEDOUX announced that HB 327 wouldn't be moved from
committee today, but rather that today's meeting is to develop
legislation that's satisfactory to the various involved
entities.
8:10:09 AM
CO-CHAIR FAIRCLOUGH reviewed the issues raised at the prior
hearing, including the abuse of alcohol by minors and
bootlegging in rural communities. She noted she has a draft
amendment that proposes using fines versus closures for
violations. She then turned to the proposal in HB 327 to
prohibit shipping alcohol in plastic bottles to a local option
community. She recalled discussion that the use of glass
bottles would cause additional costs in rural communities. She
also recalled hearing about due process for the owner as well as
a tracking system for minor consumption. She informed the
committee that she has an amendment that would require an
employee to have a techniques in alcohol management (TAM) card
prior to starting work. Although the aforementioned should be
functional for urban areas, it may be more difficult for rural
areas to comply to such because of the lack of electronic TAM
card processing.
8:13:33 AM
REPRESENTATIVE MARY NELSON, Alaska State Legislature, related
that there is so much damage from alcoholism in the area she
represents. She remarked that she appreciates the Alaska Rural
Justice and Law Enforcement Commission's proposals and those on
the ground [dealing with it] every day. Drawing on her time
growing up in various villages and then moving to Bethel, she
informed the committee of the difference in sentiment toward
alcohol between the villages and areas such as Bethel. For
instance, the alcohol database legislation of last year resulted
in a large outcry from those in Bethel who held the opinion that
the aforementioned infringed on their rights whereas those in
the villages were supportive of it. The outcry from Bethel
seemed to ignore that Alaska has had local option laws for over
20 years. Furthermore, in the U.S. there is no constitutional
right to possess alcohol. When it comes to alcohol abuse and
illegal importation, Representative Nelson characterized herself
as a "hang'em high" type of person. Therefore, she said she
doesn't have a problem with the punishment proposed in the
legislation. However, Representative Nelson did take exception
with the prohibition against the importation of alcohol in
plastic bottles to damp communities, which would create an
economic hardship on those in rural areas.
8:18:36 AM
CO-CHAIR LEDOUX surmised that the notion is that glass bottles
being transported into a local option area would likely be
heard.
8:19:27 AM
JOHN GLICK, Major, Deputy Director, Division of Alaska State
Troopers, Department of Public Safety (DPS), related his
agreement. However, he pointed out that HB 327 addresses the
vendor shipping the alcohol rather than an individual shipping
it. If the vendor ships alcohol, he/she won't ship to a dry
village but rather to a community that is damp, wet, or provides
the importation or possession of alcohol. Therefore, from the
shipper's perspective, whether the alcohol is glass or plastic
isn't of concern. From an investigative aspect, people shipping
to dry communities are personally purchasing the alcohol in a
municipality and packaging it themselves. Often such an
individual will change the vessel in which the alcohol is
shipped in order to avoid detection. Moreover, even if a glass
container is used and the postmaster hears clinking, that alone
isn't enough information to obtain a search warrant. Therefore,
Mr. Glick said he didn't believe the prohibition against glass
containers had much impact on law enforcement's ability to curb
alcohol in rural Alaska.
8:21:40 AM
REPRESENTATIVE SALMON opined that the prohibition against
plastic containers is a moot issue because if someone wants to
transport alcohol to a local option community, they'll devise a
way to do so.
8:22:44 AM
REPRESENTATIVE DAHLSTROM commented that it appears that the
legislation addressed the two separate issues of alcohol in
rural Alaska and establishments in Alaska serving alcohol. She
opined that it seems that there should be two pieces of
legislation. She then inquired as to why couldn't an alcohol
product be removed from an establishment that serves/sales more
than just alcohol.
8:25:18 AM
REPRESENTATIVE JAY RAMRAS, Alaska State Legislature, related his
support of Senator Olson's legislation last year. He then
expressed concern with regard to the prohibition against
shipping alcohol in plastic containers. He related his
understanding that air carriers are frustrated with muling drugs
and alcohol to rural Alaska because the oversight is inadequate.
Representative Ramras said that if this legislation moves on to
the House Judiciary Standing Committee, he will defer to the
thoughts of rural Alaska representatives and balance those
against the Department of Law (DOL) and DPS.
REPRESENTATIVE RAMRAS related his belief that HB 327 is really
two pieces of legislation: rural legislation and urban
legislation. Representative Ramras then related the track
record he has had with four liquor licenses, which is included
in the committee packet, and asked the committee to ponder
whether he is a good operator or not.
8:29:54 AM
REPRESENTATIVE NELSON said that she is sympathetic to the
distributors, which she assumed experience high turnover of
employees who are fairly young and making the minimum wage. She
inquired as to why Representative Ramras's establishments failed
the few times they did.
REPRESENTATIVE RAMRAS related the difficulty in determining the
age of a patron in a darkened, loud establishment. He then
highlighted the broad spectrum of the labor pool with regard to
education. The penalties seem to be modeled after the Holiday
case regarding tobacco, he remarked. He characterized the
penalties proposed in HB 327 as Draconian and the proposed
monetary penalties as a poor substitute. Representative Ramras
informed the committee that in the summers he has 300 employees,
all of which hold TAM cards. Every time those employees serve
someone, they are at risk. He then related an instance last
year in which two 23-year olds were carded and they didn't have
adult driver's licenses. The two said they didn't have adult
driver's licenses because the line is too long at the Division
of Motor Vehicles (DMV). Representative Ramras related that the
deputy commissioner of DPS shared the frustration with the time
it takes at the DMV. Representative Ramras then emphasized that
as an operator he doesn't make money by trying to serve minors.
Therefore, he characterized [the violations] of a good operator,
like himself and the vast amount of operators, as bycatch during
the stings. Furthermore, monetary penalties will place
employees at risk.
8:33:35 AM
CO-CHAIR LEDOUX inquired as to any suggestion for the penalties
if the monetary penalties and closures are too Draconian.
REPRESENTATIVE RAMRAS opined that the Alcoholic Beverage Control
Board ("ABC Board") already has enough latitude and authority to
address this without [this legislation]. He reiterated that he
doesn't make money, at any level, by intentionally serving
alcohol to minors and yet he questioned where he would be if he
were to receive a third violation at Pike's Landing.
8:35:29 AM
CO-CHAIR LEDOUX then inquired as to what the ABC Board should
do.
REPRESENTATIVE RAMRAS said he has a lot of confidence in Mr.
Griffin, ABC Board. The ABC Board is doing its job very well.
To address minors consuming, Representative Ramras suggested
passing HB 75, which offers a proactive approach that doesn't
decimate the hospitality industry. He related an incident in
which he defended one of his bartenders who had been a
professional for 20 years and [who received a violation]. That
bartender needed glasses. The bartender's attorney advised the
bartender to find another vocation because another charge would
be a class C felony.
8:37:05 AM
REPRESENTATIVE NELSON commented that there's no link between
Representative Ramras' establishment and rural Alaska.
REPRESENTATIVE RAMRAS echoed earlier comments that HB 327 should
be two separate pieces of legislation.
8:37:30 AM
REPRESENTATIVE CISSNA characterized alcohol as legal poison
because it's extraordinarily dangerous and can kill people.
Furthermore, much of the negative behavior in Alaska is often
related to alcohol and state government pays "astounding amounts
related to alcohol." She then expressed the need to review good
business practices and for those serving alcohol to see it as
something that can really hurt individuals. Furthermore, the
social perspective needs to be changed with regard to alcohol.
8:40:27 AM
DOUGLAS GRIFFIN, Director, Alcoholic Beverage Control Board
("ABC Board"), Department of Public Safety, informed the
committee that he was part of a working group on alcohol issues
that assisted the Alaska Rural Justice and Law Enforcement
Commission. The notion of the plastic bottles was that the
alcohol would be in glass so that when it was repackaged and
shipped it could be more easily detected through the noise,
breakage, and inability to burp the bottle. He informed the
committee that those who purchase alcohol in a wet community to
package themselves would purchase plastic because it's more
difficult to detect and because of the lighter shipping weight.
He indicated his agreement with Mr. Glick that there isn't
really concern with regard to the package stores that sell
alcohol by written order. Mr. Griffin then told the committee
that he was also part of the group that developed the draft plan
to prevent and reduce underage youth. That group developed the
notion of levying some penalty to those licenses that sell
alcohol to underage individuals. He acknowledged that the
degree to which a business owner is held responsible for the
actions of its employees is a tough call. The notion of fines
versus closures seems to be a step in the right direction, he
remarked. From his personal perspective, Mr. Griffin suggested
that it would be appropriate to impose a relatively small fine
as a wake up call to the licensee that he/she needs to do a
better job training or retraining or emphasizing certain
practices. With regard to Representative Ramras's
establishments, Mr. Griffin said he didn't believe that [the ABC
Board] performed the number of compliance checks Representative
Ramras related, although the number of failures is correct. Mr.
Griffin pointed out that the ABC Board regulates small
establishments that, on a good day, may have 50 customers up to
the large establishments that serve 100s of customers in a given
day. Therefore, the more transactions an establishment has, the
more likely mistakes will be made. Mr. Griffin then related his
own opinion that the penalties against the clerks and servers
are a bit severe.
8:46:29 AM
CO-CHAIR LEDOUX inquired as to the tools the ABC Board already
has to address this problem.
MR. GRIFFIN said that Title 4 includes provisions [that address
the problem] while offering some protections to the licensee.
For instance AS 04.16.150 specifies: "A licensee may neither
knowingly allow agents or employees to violate this title ...."
Furthermore, AS 04.21.030 specifies: "The licensee has a duty
to exercise that degree of care that a reasonable person would
observe to ensure that a business under the person's control is
lawfully conducted." With the aforementioned provisions, the
ABC Board doesn't feel that it can take immediate action against
a licensee that has had an employee fail because reasonable care
is generally taken to mean the server is 21 years of age at the
time of hire and has taken TAM training. However, the ABC Board
does levy penalties when the licensee is convicted of an
infraction of Title 4. Although the license of the licensee can
be suspended for up to 45 days, such a penalty isn't generally
exercised. Generally, the penalty is a seven-day closure per
offense and perhaps a $1,000 fine. Mr. Griffin explained that
if the ABC Board sees a pattern of compliance checks, an
accusation against the licensee can be written and brought to
the ABC Board. Such an accusation can go all the way to the
administrative hearing level.
8:49:40 AM
GLENN BRADY, Chairman, Board of Directors, Cabaret Hotel
Restaurant & Retailer's Association (CHARR); Owner, Silver Gulch
Brewing Company, said that he takes exception to Representative
Cissna's comments that alcohol is poison as there are documented
and proven health benefits of the use of alcohol in moderation.
He said that he has serious concerns about the intent of HB 327.
As an owner of a brewery and as the proprietor of a restaurant
with a dispensary license, Mr. Brady informed the committee that
approximately 65,000 patrons will come through his establishment
this year. Currently, he employs 46, but that will increase to
about 80 [in the summer]. Mr. Brady related his agreement with
Mr. Griffin that the tools are in place to ensure due diligence.
Furthermore, all licensees have an investment to protect.
MR. BRADY, referring to bootlegging, said it's a concern and
noted his agreement that HB 327 is really two pieces of
legislation. He then said that he has heard some great ideas
that aren't reflected in the legislation, such as the creation
of more local control to regulate the flow of alcohol into rural
areas. Mr. Brady then recalled the information that 7 percent
of the alcohol going into the hands of minors is from licensees,
yet all the enforcement and regulatory effort is focused on that
7 percent. He offered that the other 93 percent is where the
focus should be. He pointed out that there are direct shipping
issues that aren't being addressed and the U.S. Supreme Court
struck down a case in which Maine tried to force carriers to
check identification (ID). "So, we've got some holes in ... the
opportunities for underage folks to receive alcohol via direct
shipment that ... are much more difficult to regulate and
arguably a much more substantial part of the problem than the
licensed beverage industry that have investments to protect." he
remarked.
8:52:59 AM
CO-CHAIR FAIRCLOUGH, drawing from testimony, related her
understanding that there is a difference between small mom and
pop establishments and small mom and pop establishments that
perpetually serve alcohol to minors and large establishments
that follow business practices. She acknowledged that one size
doesn't fit all for any issue. Therefore, she inquired as to
why the penalties are the same no matter the size of the
establishment and the volume it serves. She asked if there has
been any discussion with regard to tailoring the penalties based
on the volume the establishment serves.
MR. GRIFFIN suggested that perhaps a range of penalties could be
specified and allow the licensee to attend an ABC Board meeting
to discuss the fact pattern of the violation. The
aforementioned would place on the record issues of volume and
additional steps the licensee might take. Mr. Griffin opined
that some type of penalty against a licensee is good and perhaps
it should be graduated and progressive. The statute, he opined,
isn't set up to allow the board to exercise discretion and
tailor the decisions, although he expressed the need not to
appear arbitrary. He suggested that the ABC Board would like
some parameters for failures, such that reductions could occur
for certain behavior or penalties could be increased if there
are aggravating factors.
8:57:52 AM
CO-CHAIR FAIRCLOUGH restated her earlier question. She then
related the desire to impose meaningful fines because a $500
fine to the owner of Chilkoot Charlie's doesn't mean anything
whereas it would to the owner of a small mom and pop
establishment.
8:59:41 AM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, pointed out that
in sentencing the legislature has adopted ranges for
imprisonment and fines. The person who imposes the imprisonment
and fine is relied upon to use his/her discretion in each
particular case. Ms. Carpeneti said that it's difficult to do
more than set guidelines. Drawing from the several years she
has worked with the ABC Board, she opined that it does a good
job with the discretion it has. It would be difficult to write
into statute more than ranges and some direction regarding
exercising that discretion. She suggested that there would have
to be a range that would apply to everyone and the ABC Board
could make the call considering volume. Ms. Carpeneti
reiterated that the ABC Board does a good job in terms of
applying the discretion it currently has.
9:01:21 AM
CO-CHAIR FAIRCLOUGH reiterated the issue of the varying volumes
establishments have. If there is a violation of serving alcohol
to an individual under the age of 21, Co-Chair Fairclough said
she didn't believe the ABC Board has much discretion [no matter
the volume of the establishment].
MS. CARPENETI reminded the committee that the legislature
provides prosecutors much discretion with regard to choosing the
charge. She opined that laws have to be drafted with ranges
that consider the character of the activity that is trying to be
prevented and provide the enforcers the discretion to make
choices. "I know that the ABC Board can do that. In terms of
criminal law, I know our prosecutors do that all the time," she
related.
9:04:06 AM
REPRESENTATIVE CISSNA clarified that she isn't a prohibitionist,
but rather she focuses on health and the outcomes [of alcohol
use]. She indicated that she doesn't have any problems with
responsible proprietors who are doing what they can, but she
recalled that there was testimony that indicated otherwise.
9:05:12 AM
MR. BRADY related that [CHARR] has always been in favor of
regulation. In fact, almost a year ago he addressed the ABC
Board to forward the partnership concept in which the
[hospitality] industry wants to work with the ABC Board to
address these substantial and significant issues. He related
that [CHARR] is strongly in favor of the control of abuse, the
prevention of drunk driving, and penalizing those behaviors in a
uniform and reasonable manner. However, since the ABC Board has
moved to DPS there has been a mentality change such that it's no
longer a partnership between the regulators and the industry to
improve the state. He opined that under this legislation
there's a direct comparison between a package store owner and a
drug dealer. Mr. Brady related his agreement that there are
substantial costs to the abuse of alcohol and [the hospitality
industry] wants to be a part of the solution. He then related
agreement with earlier testimony that the ABC Board does have
the latitude to weed out the very small percentage of operators
who aren't responsible. He further related that [CHARR] would
like the ABC Board to be returned to a more like-minded
department such as the Department of Revenue or the Department
of Commerce, Community, & Economic Development because it's
regulation of a business enterprise.
9:08:50 AM
DIANE CASTO, Section Manager, Prevention and Early Intervention
Section, Division of Behavioral Health, Department of Health and
Social Services, clarified that nationwide somewhere between 7-
30 percent of youth obtain alcohol through retailers. She noted
her agreement that [retailers] are only one piece of the puzzle
and thus the state has utilized other strategies in various
pieces of legislation. Ms. Casto opined that it's necessary to
view this problem in a broad, multi-branch program as HB 327
alone won't solve the underage drinking problem. Ms. Casto then
turned to the number of transactions that are part of a sting
operation. The ABC Board, DPS, only has one investigator to
perform alcohol stings for the entire state whereas for tobacco
there are three investigators. She estimated that the three
investigators for tobacco perform a sting on .001 percent of all
tobacco sale transactions. Therefore, the [department] doesn't
know whether the majority of transactions are good or
problematic. Furthermore, the system only catches a small
percentage of the transactions.
MS. CASTO then addressed the best strategies to prevent youth
access to alcohol as related in the "Regulatory Strategies
Preventing Youth Access to Alcohol: Best Practices," which was
prepared for the Office of Juvenile Justice and Delinquency
Prevention by the Pacific Institute for Research and Evaluation.
As a grantee of public funds, all community agencies are being
asked to institute best practice programs. If that's being
requested of those to whom the state gives funds, it's only fair
for the state to also consider best practices, she opined. The
aforementioned article relates two best practice strategies
related to this issue. One such best practice strategy
specified in the aforementioned document is as follows:
Institute comprehensive compliance check programs that
are ongoing and communitywide; include a media
advocacy component, and follow strict guidelines to
ensure fairness.
MS. CASTO explained that the media advocacy component of the
compliance check program ensures that the norm that alcohol
doesn't mix with other activities is being established. The
other best practice discussed in the aforementioned document
specifies the following:
Impose strict administrative penalties on retail
licensees for violations of sales-to-minors laws,
which increase with severity for repeated offenses.
Complement administrative penalties in serious cases
by permitting civil liability lawsuits against
licensees based on common law negligence principles
and by imposing criminal sanctions.
MS. CASTO related that the document titled "Regulatory
Strategies Preventing Youth Access to Alcohol: Best Practices"
discusses the need to ensure consistent and swift penalties
along with some level of a mandatory penalty. With tobacco the
following two issues were successful: consistent and mandatory
penalties, ceiling and floor that can be used per the situation.
Therefore, although there will always be some level of fine,
there can be aggravating factors that increase the fine and
mitigating factors that decrease the fine. Having some level of
fine illustrates the seriousness of the matter. For tobacco,
another important factor is that both the clerk and the licensee
receive some level of fine. The notion behind the
aforementioned is that if the business is held liable, it's
setting the standard and taking responsibility for its
employees. Ms. Casto then pointed out that the Best Practices
document specifies that while penalties should be significant,
they shouldn't be too severe, especially for a first offense
because law enforcement officials tend not to impose penalties
if the punishment is perceived to be too severe and
disproportionate to the seriousness of the offense. Therefore,
a middle ground needs to be found so that everyone is
responsible and that a high standard is set such that there's no
tolerance for underage drinking nor an attitude that retailers
and servers can serve to minors without consequence.
9:17:36 AM
DALE FOX, President, Cabaret Hotel Restaurant & Retailer's
Association (CHARR), expressed concern that this legislation
makes waitresses and shippers felons after two offenses. He
questioned whether an employee with no mistakes for 20 years
should have to change jobs because he/she would be a felon if
he/she makes another mistake. To equate those generally doing a
good job who make a mistake with bootleggers and others who
deliberately furnish alcohol to minors isn't appropriate. He
opined that for those instances in which someone deliberately
furnishes alcohol to a minor, there probably should be high
penalties. He noted his agreement that there should be
penalties because this is a serious matter. However, if major
closures or fines are implemented it will cause businesses to
close and people to lose their jobs. He, too, characterized
[the penalties in HB 327] as Draconian. He then characterized
the rules regarding shipping to rural Alaska as paper Tigers,
and opined that they do nothing to stop the importation of
alcohol into damp communities because everyone has a relative to
whom the alcohol over the limit could be shipped. With regard
to stings, Mr. Fox said they are important and there should be
more because compliance checks do keep people alert. However,
the penalty needs to be rational and not make people a felon.
9:23:45 AM
CO-CHAIR LEDOUX asked if those who receive more alcohol than
allowed are [charged with a felony] as are those who ship more
than the allowed amount of alcohol.
9:24:18 AM
MS. CARPENETI responded that it depends upon the facts. Ms.
Carpeneti then asked to provide remarks on some of the comments
made today. She said that many of the comments today have been
complaints about the current law. With regard to the concerns
about the manslaughter provision, Ms. Carpeneti explained that
the legislation does adopt a manslaughter provision, but it
doesn't make a clerk subject to manslaughter.
MR. FOX interjected that the manslaughter provision refers to
the shipper.
MS. CARPENETI pointed out that the provision addresses a person
who sells without a license, a person who is bootlegging not a
clerk who is selling under a liquor license. She highlighted
the language on page 7, line 13, refers to an individual who
violates AS 04.11.010, which is selling without a license.
Therefore, the provision doesn't place clerks in the same
position as drug dealers. Current law makes the second time
alcohol is furnished to a minor a class C felony, she pointed
out. Furthermore, under current law bootlegging is already a
class C felony if one bootlegs over specified amounts in current
law. Current law also specifies that bootlegging of smaller
amounts is a class A misdemeanor. This legislation specifies
that it's a class C felony only if one is convicted of
bootlegging a third time in a period of 10 years. The
aforementioned is similar to the [penalties] for other offenses
such as drunk driving. With regard to the characterization that
shipping alcohol to rural Alaska is a paper Tiger, Ms. Carpeneti
pointed out that the [shipping amounts] are specified in current
law. In regard to stings, [DPS] doesn't have enough people to
perform stings. Ms. Carpeneti said that moving the ABC Board to
DPS has been a factor in causing the implementation of stings.
9:27:11 AM
CO-CHAIR LEDOUX surmised then that the portion of HB 327 related
to importation/exportation of alcohol to rural Alaska doesn't
effect the shipping clerks at all.
MS. CARPENETI responded that the provision speaks to bootlegging
alcohol in violation of local option laws. "Manslaughter does
not apply to clerks because if you're a clerk in ... a liquor
store, you are operating under a license," she emphasized.
MR. GRIFFIN reminded the committee that the alcohol database
will go into effect July 1st. He acknowledged that although the
database won't solve the problem of bootlegging in rural Alaska,
it will do a better job in preventing honest mistakes. The
database will work such that a written order sale will be denied
if the purchaser has reached the specified legal limit.
Currently, there's no violation when a shipper sells alcohol in
an amount over the legal limit to an individual because there's
no knowledge that an individual will exceed the monthly limit
for written orders. Furthermore, there will be a way to
regulate the written order process in a fashion that isn't too
Draconian. The database also allows the collection of data in a
more progressive manner for use by law enforcement.
9:30:22 AM
REPRESENTATIVE NELSON related she is a bit offended at the
assumption that these [laws] are paper Tigers. She pointed out
that having statutory limits on the amount of alcohol one could
order by written order was a paper Tiger because one could have
the legal limit of alcohol shipped on five different carriers
and there was no way to track that prior to the database.
Moreover, the limit [of alcohol for shipment by written order]
is very high for hard liquor while the limit for wine is small.
Hard liquor is where the majority of the problem lies, she said.
9:33:53 AM
MR. FOX said that he doesn't mean to offend anyone, but anyone
who wants to get around the current law can. He said he
disagreed with Ms. Carpeneti regarding the provision [page 7,
lines 13-16] in HB 327 that he believes makes a clerk a felon.
He directed attention to AS 04.11.010 and said that's
specifically where the limits are listed. Therefore, a clerk
who sends the wrong amount to a local option area becomes a
felon and faces a possible manslaughter charge under the
proposed provision in HB 327. With regard to the department
working with the [hospitality] industry, Mr. Fox informed the
committee that although the department offered to lessen the
penalties on clerks and waitresses to misdemeanors, that's not
what's included in the legislation.
9:35:48 AM
MR. BRADY suggested that perhaps shipment could be required to
go through a central receiving point for pickup, which he
characterized as a more rational approach. He then expressed
concern with the erosion of personal responsibility, but noted
that recent addition of civil penalties for licensees against
underage people trying to purchase is a great step. He
indicated the need to place more of the burden of the offense on
the individual who is actually trying to perpetrate it as
opposed to the "sometimes innocent, hard working person" who
makes a mistake. He said he would be very willing to help craft
and work through the aforementioned possibilities. The industry
wants to be a partner and doesn't want there to be a problem in
the state due to the presence of their businesses. He expressed
the need to develop [provisions] that don't place the criminal
and administrative burden on the clerk.
9:38:05 AM
CO-CHAIR LEDOUX asked if the Alaska Rural Justice and Law
Enforcement Commission gave any consideration to making it a
felony for those who have ordered too much alcohol.
MR. GRIFFIN responded that he didn't believe the commission
addressed that but rather focused on the database and the
shipping side. Mr. Griffin suggested that a more preventative
approach is being taken to ensure that the written order process
isn't being abused. Again, the desire was to ensure that the
written order process and the shipment of alcohol to rural
Alaska wasn't abused or being used to facilitate bootlegging.
9:40:01 AM
MS. CARPENETI recalled that SB 128 adopted a class A misdemeanor
when one purchases alcohol knowing it was illegally brought into
a community.
9:40:30 AM
MS. NELSON commented that she doesn't feel that rural Alaskans
and the industry are natural adversaries. She then related her
understanding that the committee intends to separate the two
issues in HB 327. She noted agreement with Mr. Brady that there
should be more culpability to the bootlegger making the order
than to the, perhaps, innocent shipper who may not know better.
9:41:25 AM
REPRESENTATIVE DAHLSTROM informed the committee that her office
is in the process of ordering a legal opinion regarding whether
the clerk is made a felon under this proposed legislation.
9:41:59 AM
CO-CHAIR LEDOUX welcomed any legal opinions on the matter from
the various interested parties. She then informed the committee
that she intended to have a committee substitute prepared such
that the rural issues would be considered separately from the
other issues.
[HB 327 was held over.]
9:42:51 AM
ADJOURNMENT
There being no further business before the committee, the House
Community and Regional Affairs Standing Committee meeting was
adjourned at 9:42:58 AM.
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