Legislature(1997 - 1998)
02/14/1997 01:03 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 14, 1997
1:03 p.m.
MEMBERS PRESENT
Representative Joe Green, Chairman
Representative Con Bunde, Vice Chairman
Representative Brian Porter
Representative Norman Rokeberg
Representative Jeannette James
Representative Eric Croft
Representative Ethan Berkowitz
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 22
"An Act relating to civil liability for illegal sales of alcoholic
beverages; and providing for an effective date."
- MOVED CSHB 22 (JUD) OUT OF COMMITTEE
HOUSE BILL NO. 30
"An Act relating to civil liability for skateboarding; and
providing for an effective date."
- MOVED CSHB 30 (JUD) OUT OF COMMITTEE
REAPPOINTMENT OF SHIRLEY MCCOY TO THE SELECT COMMITTEE ON ETHICS
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 22
SHORT TITLE: CIVIL LIABILITY FOR BOOTLEGGERS
SPONSOR(S): REPRESENTATIVE(S) IVAN,Porter
JRN-DATE JRN-PG ACTION
01/13/97 33 (H) PREFILE RELEASED 1/3/97
01/13/97 33 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 33 (H) JUDICIARY
01/24/97 (H) JUD AT 1:00 PM CAPITOL 120
01/24/97 (H) MINUTE(JUD)
02/05/97 (H) JUD AT 1:00 PM CAPITOL 120
02/05/97 (H) MINUTE(JUD)
BILL: HB 30
SHORT TITLE: CIVIL LIABILITY FOR SKATEBOARDING
SPONSOR(S): REPRESENTATIVE(S) MULDER
JRN-DATE JRN-PG ACTION
01/13/97 35 (H) PREFILE RELEASED 1/3/97
01/13/97 35 (H) READ THE FIRST TIME - REFERRAL(S)
01/13/97 35 (H) L&C, JUDICIARY, FINANCE
01/29/97 (H) L&C AT 3:00 PM CAPITOL 17
01/29/97 (H) MINUTE(L&C)
01/31/97 187 (H) L&C RPT CS(L&C) 2DP 2NR
01/31/97 187 (H) DP: COWDERY, RYAN
01/31/97 187 (H) NR: BRICE, ROKEBERG
01/31/97 187 (H) 2 ZERO FISCAL NOTES (SPONSOR, COURT)
01/31/97 188 (H) REFERRED TO JUDICIARY
02/12/97 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE IVAN IVAN
Alaska State Legislature
Capitol Building, Room 418
Juneau, AK 99811
Telephone: (907)465-4942
Position Statement: Prime Sponsor, HB 22
TOM WRIGHT, Legislative Aide
Representative Ivan Ivan
Capitol Building, Room 418
Juneau, AK 99811
Telephone: (907)465-3882
Position Statement: Provided testimony on HB 22
REPRESENTATIVE ELDON MULDER
Alaska State Legislature
Capitol Building, Room 501
Juneau, AK 99811
Telephone: (907)465-2647
Position Statement: Prime Sponsor, HB 30
TIM ROGERS, Legislative Program Coordinator
Municipality of Anchorage
P.O. Box 196650
Anchorage, AK 99650
Telephone: (907)343-4417
Position Statement: Testified in favor of HB 30
IAN FULP, Director
Parks and Recreation
City of Kodiak
410 Cedar Street
Kodiak, AK 99615
Telephone: (907)486-8665
Position Statement: Provided testimony on HB 30
TIM SULLIVAN, Legislative Aide
Representative Eldon Mulder
Capitol Building, Room 501
Juneau, AK 99811
Telephone: (907)465-2647
Position Statement: Provided testimony on HB 30
NANCY ROBB, Director
Parks and Recreation
City of Valdez
P.O. Box 307
Valdez, AK 99686
Telephone: (907)835-2531
Position Statement: Testified in support of HB 30
TIM ALLEN, Risk Manager
City and Borough of Juneau
155 South Seward Street
Juneau, AK 99801
Telephone: (907)586-5302
Position Statement: Testified in support of HB 30
DAVE KIEL, Superintendent
Parks and Landscape
City and Borough of Juneau
155 South Seward Street
Juneau, AK 99801
Telephone: (907)586-5226
Position Statement: Provided testimony on HB 30
KEVIN RITCHIE, Alaska Municipal League
& Alaska Conference of Mayors
217 Second Street
Juneau, AK 99801
Telephone: (907)586-1325
Position Statement: Testified in favor of HB 30
ACTION NARRATIVE
TAPE 97-17, SIDE A
Number 001
The House Judiciary Standing Committee was called to order by
Chairman Joe Green at 1:03 p.m. Members present at the call to
order were Representatives Con Bunde, Brian Porter, Eric Croft,
Ethan Berkowitz and Chairman Joe Green.
CHAIRMAN JOE GREEN advised members they would first consider HB 22
sponsored by Representative Ivan Ivan, and next, HB 30 sponsored by
Representative Eldon Mulder.
HB 22 - CIVIL LIABILITY FOR BOOTLEGGERS
REPRESENTATIVE IVAN IVAN presented opening remarks on HOUSE BILL
NO. 22 - "An Act relating to civil liability for illegal sales of
alcoholic beverages; and providing for an effective date." He
explained that the proposed legislation would make bootleggers
responsible for actions that resulted from the illegal sale of
alcohol to the individual and the resulting judicial costs.
Representative Norman Rokeberg arrived.
REPRESENTATIVE CON BUNDE moved to adopt CSHB 22 (JUD) for the
purpose of discussion. There being no objection, CSHB 22 (JUD) was
adopted.
REPRESENTATIVE IVAN advised members that language had been added
under Section 1 that would explicitly express the intent of the
original bill. A person who sells or barters alcohol illegally
would be strictly liable for civil damages to the recipient, or
another person. Representative Ivan explained that the proposed
legislation would also require the bootlegger to pay costs to the
state or political subdivision of the state to criminally prosecute
the case.
Representative Jeannette James arrived.
REPRESENTATIVE IVAN pointed out that the third change from the
original version was the definition of civil damages which would
include damages for personal injury, death, or injury to a person,
including the state or a political subdivision of the state.
REPRESENTATIVE IVAN advised members that Section 2 addressed civil
liability for people who sell or barter a controlled substance as
defined by statute.
TOM WRIGHT, Legislative Aide, Representative Ivan, advised members
that the changes explained by Representative Ivan were the result
of input from Jim Sourant, Representative Porter's staff, Lisa
Kirsch, Counsel to the House Judiciary Committee, Gail Voigtlander,
Assistant Attorney General, Special Litigation Section and Mike
Ford, Attorney, Legislative Legal Services.
MR. WRIGHT pointed out some minor changes to the latest proposed
committee substitute (LS0148\K) suggested by Mr. Ford. These
changes would appear on page 1, line 6, after "strictly liable",
insert (1), and delete [(1)] on line 7. He advised members that
they had some discussions as to whether the state or political
subdivision could be considered a "person". Mr. Wright stated that
by placing the (1) after "strictly liable" on line 6, and removing
it from line 7, that it would be clear that a bootlegger could be
liable to (1) another person, or (2) the state or a political
subdivision.
MR. WRIGHT advised members another suggested change to the new
proposed committee substitute would fall on page 1, line 10, after
"(2)" insert the word for. That would result in saying that, "the
recipient or another person," and also "for the state" would make
it clear that the state was also included in the process. Mr.
Wright pointed out that those changes would also be made under
Section 2, as everything done in Section 1 was paralleled in
Section 2.
REPRESENTATIVE BRIAN PORTER moved to adopt Amendment 1, as
described by Mr. Wright. There being no objection, Amendment 1,
CSHB 22(JUD), was adopted.
REPRESENTATIVE ERIC CROFT referenced page 1, line 12, and asked if
they wanted to recover the costs to criminally prosecute the
recipient of the alcohol, or the bootlegger.
MR. WRIGHT explained, with respect to criminal prosecution, that
the state presently had the ability to attempt to recover those
costs. The proposed legislation says that if a person who received
the alcohol illegally commits a crime while under the influence,
that the bootlegger would also be partly responsible for that
action.
REPRESENTATIVE NORMAN ROKEBERG asked if the Alcohol Beverage
Control Board (ABC), and the Department of Law had any input on the
new draft committee substitute.
MR. WRIGHT advised members that Ms. Voigtlander, Assistant Attorney
General, had reviewed the language and found no problem. Also the
ABC Board had the opportunity to review and consider the suggested
changes, and they expressed no concern.
MR. WRIGHT pointed out that while working through the process they
did have conversations with Linda O'Bannon, Assistant Attorney
General, Commercial Section, and the only area she was concerned
with was Section 1; however, she had no objections to the amended
language.
REPRESENTATIVE CROFT noted that the original genesis of the
proposed legislation was a result of the Chokwak v. Worley decision
which dealt with social hosts, and he wanted to confirm that the
intent of the provision was to cover those who sell alcohol through
the business of bootlegging, and not liability to a social host.
REPRESENTATIVE IVAN said that would be correct.
REPRESENTATIVE PORTER moved to report CSHB 22 (JUD) out of
committee with the attached zero fiscal notes and individual
recommendations. There being no objection, it was so ordered.
CSHB 22(JUD) was reported out of committee.
HB 30 - CIVIL LIABILITY FOR SKATEBOARDING
CHAIRMAN GREEN advised members they would next consider HOUSE BILL
NO. 30 "An Act relating to civil liability for skateboarding; and
providing for an effective date." He invited the prime sponsor,
Representative Eldon Mulder, to present comments to the committee.
REPRESENTATIVE ELDON MULDER, Prime Sponsor, HB 30, advised members
he introduced the proposed legislation at the request of the
Municipality of Anchorage because they were interested in
developing a skateboard facility. He noted that the City and
Borough of Juneau was also interested in creating a skateboard
park.
REPRESENTATIVE MULDER pointed out that municipalities were willing
to develop areas suitable for skateboarding if they could be
insulated from liability for claims arising from hazards inherent
to skateboarding. Representative Mulder advised members that the
intent of the proposed legislation was to encourage municipalities
to proceed with development of areas for outdoor recreation without
increasing their liability unnecessarily. He expressed that the
proposed legislation would only apply to municipal skateboard
parks.
REPRESENTATIVE MULDER further explained that the bill was patterned
after past legislation which provided limited protection to ski
areas. It would require municipalities to post warning signs that
the risks and liability would fall upon the skateboarder.
REPRESENTATIVE MULDER pointed out that the original language was
amended in the House Labor and Commerce Committee to make minor's
parents or legal guardian responsible to determine the minor's
ability to skateboard. Another change in House Labor and Commerce
Committee would require municipalities to delineate the boundaries
of the skateboard facility with fencing, or another type of
enclosure surrounding structure. He pointed out that those
amendments had been offered by Representative Rokeberg.
REPRESENTATIVE BUNDE pointed out that snow boarding facilities were
already covered through previous legislation.
REPRESENTATIVE ROKEBERG advised members he had an amendment he
would like to offer at some point; however, because Representative
Mulder was needed in another committee, asked that he speak to the
referenced amendment briefly prior to his departure.
REPRESENTATIVE MULDER pointed out that Representative Rokeberg's
amendment basically spoke to the nuisance issue of skateboarding
and the activity taking place in areas where skateboarding should
be prohibited. He advised members that his largest concern with
the amendment related to the resulting costs to municipalities and
the Department of Public Safety.
CHAIRMAN GREEN moved on to take testimony via teleconference from
Anchorage.
TIM ROGERS, Legislative Program Coordinator, Municipality of
Anchorage, advised members they fully supported HB 30. He noted
that skateboarding had become a very popular sport among young
people and the municipality was trying to provide them a venue
where they could participate in their sport in a non-destructive
way.
MR. ROGERS advised members the municipality did have concern with
Representative Rokeberg's proposed language relating to posting of
signs. He stated that if it passed, the Municipality of Anchorage
could be in a position where they would have to post all areas that
skateboarding would be allowed. Mr. Rogers pointed out that the
coastal trail was a multi-use facility and skateboarding was
allowed there and the proposed language might require the
municipality to post that area, as well as other similar areas.
MR. ROGERS noted that the municipality would not object to some
sort of requirement for private property; however, he would be
concerned if public property were included if the amendment passed.
He added that enforcement costs resulting from the proposed
language would also be of concern to the municipality
REPRESENTATIVE ROKEBERG pointed out that while the proposed
language could cause a slight fiscal impact to municipalities, the
intent was to allow the municipality to post areas where
skateboarding would be allowed, not where skateboarding would not
be allowed to take place.
MR. ROGERS reiterated the municipality's concern of being required
to place signs in the outlying areas of town in order to make sure
that people understand that skateboarding was allowed. He felt
they were possibly talking about two different levels of activities
because the city of Anchorage was speaking directly to a facility,
versus other areas where skateboarding might take place.
CHAIRMAN GREEN requested testimony from Kodiak via teleconference.
IAN FULP, Director, Parks and Recreation, City of Kodiak, asked if
the city would be responsible for the stipulations listed under the
duties of municipal skateboard facility users. It was his concern
that the city would be liable if a skateboarder received injuries
because of not wearing a helmet. Mr. Fulp also asked if a
municipality would be required to supervise individuals using the
facility during the times the facility was open.
CHAIRMAN GREEN felt it would be up to the individual municipality
to determine the amount of risk they wished to assume within their
own facilities.
TIM SULLIVAN, Legislative Aide, Representative Mulder, explained
that the proposed legislation would not require someone to be on
the premises to monitor the facility at all times. He noted that
it would be the responsibility of the skateboard facility user to
have the proper equipment and the inherent risk would be theirs.
MR. FULP asked for an explanation regarding fencing requirements of
a facility.
MR. SULLIVAN stated that it was his understanding that the fence
would indicate where the boundaries of the facility were, and was
not intended to lock the area up.
REPRESENTATIVE ROKEBERG pointed out that the purpose of the fencing
language was to define the boundaries of a facility, as well as to
indicate fencing to be the preferred means of doing that. He noted
that it would also provide greater security and assist in the
administration of the facility.
MR. FULP expressed his satisfaction to his questions regarding
supervision of a facility and that it would not require a
municipality to make sure users were equipped with the proper
safety equipment, as well as not being required to supervise the
facility at all times. He did not agree with the requirement of
fencing a skateboarding area, adding that if too many restrictions
were placed on the activity, and the facility, that it would create
funding problems for the municipalities, beyond that of building
the facility.
MR. FULP pointed out that there were facilities around the country
that were not fenced and locked, and did not have supervisors. To
his knowledge, those facilities had not had any problems.
REPRESENTATIVE PORTER pointed out that as a past member of the
Anchorage Municipal Assembly, he felt it would be the
responsibility of the municipalities to impose their own rules and
regulations for the facility.
CHAIRMAN GREEN requested testimony from Valdez, Alaska.
NANCY ROBB, Director, Parks and Recreation, City of Valdez, advised
members they were in support of HB 30, although she had the same
concerns expressed by Mr. Fulp regarding fencing requirements.
TAPE 97-17, SIDE B
Number 000
TIM ALLEN, Risk Manager, City and Borough of Juneau, advised
members they were in support of the proposed legislation, noting
that Mayor Egan had provided a letter expressing the municipality's
support of HB 30.
MR. ALLEN stated that he would agree with Representative Porter
regarding fencing requirements to allow the city and borough the
discretion to provide the micro management requirements.
DAVE KIEL advised members that the Juneau Douglas High School had
an innovative program called the Phoenix Program which was designed
to teach students how projects work in the real world. He noted
that it was intended purely as an academic exercise; however, it
had taken on a life of its own. Mr. Kiel pointed out that a park
site had been secured from the Parks and Recreation Advisory
Committee; the neighborhood bought into the idea, they got
volunteers from volunteer architects and structural engineers, and
to help with the design the program approached the city's planning
commission and was issued a conditional use permit. Mr. Kiel noted
that during that time, the students were fund raising and currently
have $50,000 in the bank for the project.
MR. KIEL advised members that a survey was conducted among the
Juneau schools which reflected approximately 1000 active
skateboarders in Juneau. He noted that was roughly equal to the
number of kids who play little league baseball and softball, and
pointed out the city currently maintained 16 ball fields for little
league. Mr. Kiel stated that if HB 30 were to pass, the city of
Juneau would incorporate it into the city's maintenance operation.
MR. KIEL noted that the city had banned skateboarding on the
waterfront and the downtown business district.
Number 510
KEVIN RITCHIE, speaking on behalf of the Alaska Municipal League
and Alaska Conference of Mayors advised members that both entities
were in strong support of the proposed legislation, HB 30.
MR. RITCHIE expressed that the kids would be much safer in a
skateboard facility than the places they currently skateboard. He
felt that anything that could be done to bring them into a
skateboard facility, as was being designed for Juneau, would be a
big advantage.
MR. RITCHIE also had a problem with the suggested language that
would require areas where skateboarding was allowed to be posted,
pointing out that it would be very difficult to enforce.
TAPE 97-18, SIDE A
Number 000
CHAIRMAN GREEN called a brief At-ease.
[Off record: 2:25 p.m.]
[On record: 2:27 p.m.]
REPRESENTATIVE ROKEBERG moved to amend CSHB 30 (L&C) as follows:
Page 1, line 1, delete [civil liability for]; page 2, following
line 10, insert, Sec. 05.50.025. Prohibition of skateboarding in
undesignated places. (a) A person may not skateboard on public or
private property without the written permission of the property
owner unless the property is posted with signs that clearly
indicate that the property is available for skateboarding.
(b) In addition to being subject to civil liability under AS
05.50.020, a person who violates this section is guilty of a
violation and, upon conviction, the court may impose a fine of not
more than $50.00.
REPRESENTATIVES PORTER, BERKOWITZ and CROFT objected.
REPRESENTATIVE ROKEBERG explained that the intent of the bill was
to deal with skateboards and other various activities. He stated
that he and his staff, while researching the issue, discovered
there were no prohibitions within the Alaska State Statutes for the
illegal use of skateboards other than the trespass statute.
Representative Rokeberg further stated that the illegal use of a
skateboard could, in essence, cause thousands of dollars worth of
damage to private and public property throughout the state and felt
it was an appropriate matter to bring before the Judiciary
Committee.
REPRESENTATIVE PORTER spoke against Amendment 1. He pointed out
that the City and Borough of Juneau had addressed that issue simply
by not allowing skateboarding in the downtown business area, and
the manner of enforcement would be up to the individual
municipality. Representative Porter further explained that it
would involve a policy decision that the assembly and the mayor of
the community would make with their own resources.
REPRESENTATIVE ROKEBERG advised members he brought the amendment
before the committee as a means of information and to attract
public comment because he wanted to express that the skateboard
community, and those who skateboard, have a responsibility to the
people of the state to be responsible as to where and when they
conduct their recreational activities.
REPRESENTATIVE ROKEBERG withdrew Amendment 1. There being no
objection, Amendment 1 was withdrawn.
REPRESENTATIVE CROFT moved to amend CSHB 30 (L&C) on page 3, after
line 17, insert a new subsection; (d) The municipality shall
maintain and operate the skateboard facility in a non-negligent
manner. Representative Porter objected.
REPRESENTATIVE CROFT explained that the intent of Amendment 2 was
an attempt to cure the problem of defining a complete defense to
the crime. He stated that he was striving to recognize the
inherent risk of skateboarding and impose certain duties upon the
users, but in addition to that, continue the duty of the skate park
operator that they operate in a non-negligent manner.
Representative Croft pointed out that the duties were very specific
and extensive for the users; however, felt there should be a
corresponding duty on the part of the operator of the facility.
REPRESENTATIVE PORTER advised members that his problem involved a
municipality's requirement to "maintain and operate", pointing out
that some municipalities may not wish to "operate" a facility, but
to provide the facility. He suggested language such as "The
municipality shall construct and maintain the skateboard facility
in a non-negligent manner."
REPRESENTATIVE CROFT would accept that as a friendly amendment to
Amendment 2.
REPRESENTATIVE ROKEBERG agreed in part with the amendment to the
amendment, although he would exclude the word "construct".
REPRESENTATIVE PORTER responded pointing out that the facility
would be constructed under the municipalities purview and
responsibility if constructed on municipal property.
REPRESENTATIVE MULDER questioned whether there was an actual
definition, or case law definition to non-negligence or non-
negligent.
REPRESENTATIVE CROFT advised members he would accept both
suggestions as friendly amendments to his Amendment 2. The
language would then read (d) The municipality shall not construct
or maintain the skateboard facility in a negligent manner., and
moved that language.
CHAIRMAN GREEN asked if the amendment would put a facility at more
risk if something occurred during the course of the day in which a
person would claim the facility was maintained in a negligent
manner if, previous to the incident, everything was operating
appropriately.
REPRESENTATIVE PORTER felt that the reason they were discussing
that particular section was because of the blanket immunity
provided in the other section because one basically builds on the
other. However, he felt Amendment 2 was a basic, reasonable
recitation of what common law was, and the word "maintain" did not
mean to operate, but to keep in good working order the construction
of the facility.
REPRESENTATIVE ROKEBERG opposed the use of the word "construct".
A roll call vote was taken: In Favor: Representatives Bunde,
Porter, Rokeberg, Croft and Berkowitz. Opposed: Representatives
James and Chairman Green. Amendment 2, CSHB 30 (L&C) was adopted.
REPRESENTATIVE CROFT offered Amendment 3, page 2, line 2, to delete
after the word "be" [a contributory], and insert the primary; and
on page 2 line 6, delete [a contributory] and insert the primary.
REPRESENTATIVE PORTER suggested that the word "primary", in the
proposed amendment, be changed to "substantial".
REPRESENTATIVE CROFT accepted that as a friendly amendment to
Amendment 3.
TAPE 97-18, SIDE B
Number 000
REPRESENTATIVE MULDER felt with the adoption of Amendment 2 that
the proposed Amendment 3 would not be necessary. He noted that if
a facility were constructed or maintained in a negligent manner,
the other factor would not come into play.
REPRESENTATIVE CROFT agreed to a certain point, stating that
Amendment 2 went a long way towards curing the concern; however,
did not know if it would cure his concern entirely.
REPRESENTATIVE CROFT maintained his motion to adopt Amendment 3,
which would include Representative Porter's friendly amendment to
the amendment of replacing the words "the primary" with a
substantial.
A roll call vote was taken: In favor: Representatives Croft and
Berkowitz. Opposed: Representatives Porter, Rokeberg and Chairman
Green. Amendment 3, CSHB 30 (L&C) failed adoption.
REPRESENTATIVE CROFT moved to report CSHB 30 (JUD) out of committee
with individual recommendations and the attached zero fiscal notes.
There being no objection, CSHB 30 (JUD) was reported out of
committee.
Number 706
ADJOURNMENT
There being nothing more to come before the committee, Chairman Joe
Green adjourned the House Judiciary Committee meeting at 3:45 p.m.
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