Legislature(1997 - 1998)
02/14/1997 01:03 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.