02/07/2008 03:30 PM Senate COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB161 | |
| SB235 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 161 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 235 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE COMMUNITY AND REGIONAL AFFAIRS STANDING COMMITTEE
February 7, 2008
3:40 p.m.
MEMBERS PRESENT
Senator Donald Olson, Chair
Senator Albert Kookesh, Vice Chair
Senator Gary Stevens
Senator Joe Thomas
Senator Thomas Wagoner
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
SENATE BILL NO. 161
"An Act relating to the Alaska coastal management program."
MOVED CSSB 161(CRA) OUT OF COMMITTEE
SENATE BILL NO. 235
"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: SB 161
SHORT TITLE: COASTAL MANAGEMENT PROGRAM
SPONSOR(S): SENATOR(S) OLSON
04/25/07 (S) READ THE FIRST TIME - REFERRALS
04/25/07 (S) CRA, RES, FIN
10/23/07 (S) CRA AT 3:30 PM BELTZ 211
01/17/08 (S) CRA AT 3:30 PM BELTZ 211
01/17/08 (S) -- Meeting Postponed to 1/22/08 --
01/22/08 (S) CRA AT 3:30 PM BELTZ 211
01/22/08 (S) -- Meeting Postponed to 1/29/08 --
01/29/08 (S) CRA AT 3:30 PM BELTZ 211
01/29/08 (S) Heard & Held
01/29/08 (S) MINUTE(CRA)
02/07/08 (S) CRA AT 3:30 PM BELTZ 211
BILL: SB 235
SHORT TITLE: ALCOHOL: LOCAL OPTION/LICENSING/MINORS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/18/08 (S) READ THE FIRST TIME - REFERRALS
01/18/08 (S) CRA, JUD, FIN
01/31/08 (S) CRA AT 3:30 PM BELTZ 211
01/31/08 (S) -- MEETING CANCELED --
02/05/08 (S) CRA AT 3:30 PM BELTZ 211
02/05/08 (S) Scheduled But Not Heard
02/07/08 (S) CRA AT 3:30 PM BELTZ 211
WITNESS REGISTER
SKIP RYMAN, Manager
City and Bureau of Yakutat
Yakutat AK
POSITION STATEMENT: Spoke in support of SB 161.
MARLENE CAMPBELL, Director
Government Relations
City and Borough of Sitka
Sitka AK
POSITION STATEMENT: Spoke in support of SB 161.
MARV SMITH, Coordinator
Community Development and Coastal District
Lake and Peninsula Bureau
Iliamna AK
POSITION STATEMENT: Spoke in support of SB 161.
DAN EASTON, Deputy Commissioner
Department of Environmental Conservation (DEC)
Juneau AK
POSITION STATEMENT: Had question regarding SB 161.
LINDSAY WOLTER, Assistant Attorney General
Environmental Section
Department of Law
Anchorage AK
POSITION STATEMENT: Expressed concern over SB 161.
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
Juneau AK
POSITION STATEMENT: Presented SB 235.
DIANE CASTO, Manager
Prevention and Early Intervention Services
Department of Health and Social Services (DHSS)
Juneau AK
POSITION STATEMENT: Spoke in support of SB 235.
SUE MCLEAN, Chief Assistant Attorney General
Criminal Division
Department of Law
POSITION STATEMENT: Spoke in support of SB 235.
MATT FELIX, Director
National Council on Alcohol and Drug Dependence
Juneau AK
POSITION STATEMENT: Spoke in support of SB 235.
PATRICIA LEEMAN, Deputy Directory of Operations
Division of Juvenile Justice
Department of Health and Social Services
Bethel AK
POSITION STATEMENT: Spoke in support of SB 235.
ACTION NARRATIVE
CHAIR DONALD OLSON called the Senate Community and Regional
Affairs Standing Committee meeting to order at 3:40:19 PM.
Senators Olson, Stevens, Thomas, and Kookesh were present at the
call to order. Senator Wagoner arrived shortly thereafter.
SB 161-COASTAL MANAGEMENT PROGRAM
CHAIR OLSON announced the consideration of SB 161. The committee
substitute, Version 25-LS0883\C, was before the committee.
SKIP RYMAN, Manager, City and Bureau of Yakutat, said he served
as Yakutat's planner and its coastal district coordinator. When
Alaska decided to participate in the Coastal Management Program
it chose to use a model of multiple separate districts. The
state could have chosen a single statewide umbrella plan, but
Alaska's diversity made that impossible. The Northwest Arctic is
radically different from Southeast Alaska, for example. He
recalled Governor Murkowski eliminating the DGC [Division of
Governmental Coordination] and the Coastal Policy Council, and
then centralizing habitat and permitting functions within the
Department of Natural Resources (DNR). Those actions were
portrayed as a streamlining effort in order to make permitting
less complicated for developers. As the administration's efforts
took shape, it became obvious that it was the individual coastal
districts that were viewed as impediments to development, and
the actual goal was the muting and the elimination of their
voice in development issues.
MR. RYMAN said HB 191 was an honest attempt to reduce
bureaucracy and was never an attempt to eliminate participation
by Alaskans in development issues. But that was the intent of
many regulations that followed the bill. He said he attached a
position letter on the draft environmental impact statement for
approval of amendments to the Alaska Coastal Management Program.
It is signed by him for the City and Borough of Yakutat and by
Bert Adams for the Yakutat Tlingit Tribe. The letter expresses
their position on the issue. SB 161 seeks to reestablish full
participation of Alaskans in their affairs, and he extended
Yakutat's support for SB 161, including the reestablishment of
the Coastal Policy Council.
3:43:49 PM
MARLENE CAMPBELL, Director, Government Relations, City and
Borough of Sitka, said she has been the coastal management
coordinator and has been around for the entire revision process.
"I can only thank anyone who has had anything to do with the
development of SB 161, and especially sponsor Senator Olson for
the major step in the right direction." Sitka used to be
extremely proud of its coastal program as a responsive
supportive entity, working with developers while protecting the
environment in the coastal zone. That relationship changed with
the onset of HB 191, and it further changed with the forced
revision of Sitka's coastal plan, which removed any effective
policies related to subsistence or habitat "or most of the other
areas within our coastal plan that had been so helpful to us …
in developing workable compromises for taking care our local
area." Sitka's coastal district is 4,710 square miles.
MS. CAMPBELL thanked Senator Olson for sponsoring the bill. She
strongly supports broadening public involvement in permitting;
it is especially true with the Department of Environmental
Conservation (DEC), which is now reviewing air, land, and water
quality permits with absolutely no communications with the
coastal districts or the public. Legislation requiring a public
process for DEC permits will provide an "excellent ability for
the communities to reconnect with the permit process." The
subsistence component is important and is mentioned in Sitka's
coastal plan, "but we have not been able to effectively
promulgate any enforceable polices related to it." Reconnecting
subsistence with the coastal plan is very important to all
communities that feel strongly about subsistence uses.
3:47:19 PM
CHAIR OLSON asked about future coastal development in Sitka.
MS. CAMPBELL said there is ongoing development, but there is
nothing large scale like a big mine in the immediate future. But
any current development is outside the ability of Sitka's
coastal managers to comment effectively, and it is outside the
public's ability to be notified. "I'm no longer up to speed on
what may be happening, and I think this legislation will go a
long way to, at least, providing public notice of those kinds of
situations." Sitka could use some development, she opined.
CHAIR OLSON asked if the plan was approved.
MS. CAMPBELL said it was approved in April.
3:48:30 PM
MARV SMITH, Community Development Coordinator and Coastal
Coordinator, Lake and Peninsula Bureau, Iliamna, said he
supports SB 161 because it reestablishes the Coastal Policy
Council and gives the district a say in consistency reviews.
Presently, air, land, and water quality is not included, making
it difficult to do consistency reviews properly. The local
districts do not have the power to adopt meaningful enforceable
policies. In comparing the old plan with the new one for his
borough, it is significantly different. Local people should have
input. There is development in the area that is detrimental to
the communities, and "we want to have the local input." The plan
under the previous administration did not consider all the
ramifications. All 17 communities of the borough are on
freshwater or saltwater. Fishing is an important livelihood, and
the communities should have input on how the coastal zone can be
developed. SB 161 heads in that direction.
3:51:06 PM
CHAIR OLSON asked if any recent developments have been affected
by the past administration.
MR. SMITH said there will be a big one in the future.
CHAIR OLSON asked what difficulties the district will encounter.
MR. SMITH said the bill will give the local governments some
say-so in what development goes on in their coastal districts.
His district is trying to use statewide standards when a coastal
consistency review comes before it. The planning commission was
presented with a project for review under those standards "and
they simply said we need to go back to the old plan."
3:52:41 PM
CHAIR OLSON asked if his coastal plan has been approved.
MR. SMITH said they are waiting for it to be approved and hope
it will be approved soon.
SENATOR STEVENS said before HB 191 there was a council "in
control of things." Now the department seems to be running
things. Communities keep saying that there is no forum or role
for the locals in policy development. Is there some middle
ground? Is the best answer to go back to the previous policy
council? Or is there "some middle way of including communities
and still keeping the department involved?" Some testifiers say
they don't want to change the day-to-day operations of the
department, they just want more balance and to be at the table.
3:54:28 PM
MR. SMITH said being at the table is very, very important. He
said to go back is not the answer, but suggested molding what is
present into something that will work for everybody. The current
plan has been a lot of hard work. Maybe the present regulations
need to be tweaked. He can't answer whether the state must have
the council, but it was made up of locals who understood what
happens and could convey that to the staff. That was a good
working relationship. He is not 100 percent sure it will work.
Having that local input to the DNR staff is a great asset. There
was also a working group, which is also gone. The people at the
local level can give critical input.
3:56:01 PM
SENATOR STEVENS said he is struggling with it, and this
committee may not be the place to go over the details of how a
council would be created. He suggests passing it to the
Resources Committee. It is an important issue and he has heard
both sides. The department felt they had no control of the
outcome, and the local districts had no place at the table.
DAN EASTON, Deputy Commissioner, Department of Environmental
Conservation (DEC), said he will focus on the "DEC carve-out"
that will be removed by the bill and on single agency reviews.
He has an incomplete understanding of SB 161. The DEC carve-out
has two parts: "a definition that says that the DEC standards
for air quality, water quality, and solid waste disposal, as
well as spill prevention and response planning, are the sole
enforceable policies of the ACMP for those purposes." The second
part is when DEC issues a permit for an activity, it establishes
that activity as consistent with those ACMP policies. So "when
we issue a permit, that establishes consistency automatically
with those policies." The effect is that project activities that
require a permit from DEC are not subject to the ACMP process -
they are carved out from the ACMP process. Current law reflects
the thought that DEC has the duty to interpret the state
environmental standards, "and that DEC would authorize only
activities that comply with those standards."
4:00:31 PM
MR. EASTON said, "Because the state environmental standards are
the only enforceable ACMP policies for those purposes, DEC
authorization is both necessary and sufficient to establish
consistency with the ACMP standards." That carve-out is removed
by SB 161. DEC's authorizations typically include air emissions,
water discharge, and pesticide permits, and approvals for oil
spill prevention and response/contingency plans. When DEC issues
an authorization, those activities aren't subject to ACMP review
but are subject to an administrative process of public notice
and comment. The permitting decisions are subject to
administrative and judicial appeals processes, "so it may not be
an ACMP process, but it's not a closed process either."
4:01:42 PM
MR. EASTON said when DEC is the only permitting authority for a
project, it determines if it should go through an ACMP review,
but only for activities that are not carved out. Any project
could have parts that would be subject to an enforceable
district policy, and it is up to DEC to make a decision with
DCOM as to whether there are parts of the project that should be
subject to local district review. "We have internal guidance
that tells us how to operate this process." The first step is
sending a letter to the coastal district, and it includes
project information and asks the district to identify any
enforceable policies that it has. If there are none, there is no
ACMP review. If the district says there are enforceable
policies, and if DEC agrees with that, DEC will subject the
project to an ACMP review for the purposes of deciding whether
or not these other parts of the project - those beyond DEC's
permits - are consistent with coastal district policies. "Our
actual experience with these single agency reviews is limited,
largely because there have been so few approved, effective
coastal management plans." Since the carve-out has been in
effect, DEC has only sent out 11 project scope letters to
districts to see if any enforceable policies applied. Of those,
one ACMP review was conducted. As more district plans are
approved, the number of project scope letters and single agency
reviews that DEC will conduct will increase.
4:04:20 PM
MR. EASTON said SB 161 "retains the part of the carve-out - the
provision that the DEC environmental standards as established by
statute and regulation are the sole enforceable policies of the
ACMP for those purposes -- but the bill eliminates the second
part of the carve-out, such that no longer would simply our
authorization of an activity establish that activity as
consistent with the ACMP program." That change will have unclear
impacts. DEC would continue to develop permits and other
authorizations, "but it would appear that the Coastal Policy
Council would also be called on to determine whether permitted
activities comply with state environmental standards." That
potential transfer of authority concerns him.
CHAIR OLSON asked how DEC will make sure there's not a
subjective issue when it approves plans. "You had stated that in
order for some of these plans to be consistent -- and this bill
does away with that consistency -- isn't there a subjective
element to that that is what got us to where we are today?"
MR. EASTON said there are two parts to consistency. One is: "Is
a project … consistent with the DEC standards?"
CHAIR OLSON said that part is still in place with SB 161.
MR. EASTON said DEC attorneys don't advise it that way. That is
the question. "We actually read … that now this is no longer.
While that standard remains, and there's a statement in statute
to that effect, that the Coastal Policy Council, now, would …
also have say as to whether an activity complies with the state
air quality standards, for example. That's what worries us. At
least it's a question we have."
4:07:01 PM
LINDSAY WOLTER, Assistant Attorney General, Environmental
Section, Department of Law, said page 11 refers to the DEC
carve-out. DEC has statutes and regulations as their exclusive
enforceable policy of the ACMP, but (d) on Page 11 refers to the
extent that DEC doesn't cover certain projects, the coordinating
agency shall review all project activities to ensure consistency
with water and air. That is where the confusion is raised. "What
does it mean to the extent that DEC doesn't cover the topic?"
"We're not sure how it would be interpreted."
CHAIR OLSON asked how subjective that is since there is not a
clear interpretation.
MS. WOLTER asked if the program has been subjective to date.
CHAIR OLSON said if there is confusion in the interpretation of
what Mr. Easton was alluding to, then that makes it a subjective
issue.
MS. WOLTER said she is not sure of the question, but it is not
clear what (d) does in relation to (b). It seems that DEC's
statutes and regulations are the exclusive enforceable policy
for the ACMP, but then (d) opens up the scope of any review,
saying that, to the extent that those statutes and regulations
don't apply, then all project activities will be reviewed to be
consistent with statewide standard enforceable policies, which
are the local policies. She questioned what that means.
4:10:37 PM
SENATOR WAGONER said it looked like Mr. Easton wanted to say
"we're having conflicting or dueling groups, because you might
make a decision, and then this group would have the authority to
review that decision and take further action on your decision."
MR. EASTON said that is correct.
SENATOR WAGONER said that is counter productive to what the
legislature tried to do when a bill was passed three years ago.
MR. EASTON said it is not entirely clear at this point that that
will be the effect. It is muddled, "and we worry that that would
be the effect, but it's just not that clear."
4:11:49 PM
SENATOR WAGONER said that is how he interpreted it.
SENATOR THOMAS said he is confused about "section (d)". It
appears "that either somebody has a lot of foresight and that
they're looking forward to issues that may not necessarily be
considered in those particular statutes that deal with
predominantly the DEC, or that, for whatever reasons, they want
to create confusion and allow it to get channeled back to the
more local communities." "Is that not, at least, one
interpretation that people were looking forward to things that
may not necessarily have been covered, and that was the reason
for putting this language in, that if it wasn't, that they still
had the opportunity to participate in the process?"
MR. EASTON asked what he was referring to.
SENATOR THOMAS said he is talking about small (d) on lines 22 to
26 on Page 11.
4:13:39 PM
MR. EASTON said it is a bit complex. Section 16 is the new
subsection (b). State environmental standards allow effects on
resources, so the water quality standards allow some change in
water quality. It depends on the circumstances, but it is not a
no-change standard. It is the same with air and spills. Reading
the new section (d), he wonders if it is a provision that says
that for the types of changes that would be allowed by state
standards, that the coastal policy council is then required by
(d) to actually look and see if those changes are going to
comply with ACMP standards and enforceable district policies. So
it provides both a second level of review and it invites the
districts to make standards that are more restrictive than state
standards. It is a question and a concern.
SENATOR THOMAS said, "It appears to me that you're
incorporating, to the extent that, those particular statutes do
not take into consideration some potential effect, that you just
have this policy or this procedure that you go through." It
appears to be incorporating existing statute -- not challenging
it. Unless someone is trying to be creative, it does incorporate
existing statute into it, and if something that was not
anticipated pops up, there is this process to address it.
4:16:09 PM
MR. EASTON said the reference to 46.03.0409, 14 and (d), is a
reference to the state statutes that underpin the standard
regulations. DEC develops standards in regulation pursuant to
AS46.03, so it refers to state water and air quality standards.
SENATOR THOMAS said that was his understanding, and "that's why
I figured they were incorporated into the consideration
already." That is why he is confused.
MR. EASTON said, of the loss of the DEC carve-out in SB 161, "it
is probably clear that we continue to develop permits and other
authorizations, but it appears that the Coastal Policy Council
would also be called on to determine whether permitted
activities comply with state DEC environmental standards." That
transfer of authority concerns him. Interpreting standards
requires expertise and oversight by federal agencies. DEC has
engineering and environmental professionals, so it is qualified
as arbiters of state environmental standards. DEC strives to be
consistent and predictable. Involving the council is one effect,
and secondly the bill would require developing procedures to
meld DEC permitting into the ACMP process. "I hear that
discussed a lot, as if maybe that was the sole effect of the
bill, and again, we wonder about that." Bringing the DEC
permitting process under the ACMP process without subrogating
DEC authority to the council seems possible, but it would
require an amendment.
4:20:03 PM
MR. EASTON said the bill eliminates 46.40.040 (b)(2), which
establishes the standards for judging ACMP consistency for
activities in the OCS [outer continental shelf] and activities
outside of state jurisdiction. "By eliminating that direct
statement of what the standards are to be used in the OCS, it
creates a question of what standards are intended to be applied
outside of state waters." The bill appears to do much more than
"return activities authorized by DEC procedurally to the ACMP
process." It raises questions as to the role of DEC and the
Coastal Policy Council in the application of DEC statutes and
regulations. It appears to invite ACMP standards that are
different from DEC regulations and from one coastal area to
another. The bill also removes the state environmental standards
as a basis for determining coastal consistency in the OCS. He
acknowledged that the coastal districts have been adversely
impacted through changes in the ACMP process, and it needs to be
addressed. There is opportunity to improve the procedural nexus
between the ACMP process and the DEC process, "and we would
welcome an opportunity with DNR to work on such improvements."
4:22:38 PM
SENATOR STEVENS said that Mr. Easton has heard the same concerns
he has heard from the local districts. They don't have a seat at
the table and can't comment on projects. "You have said, very
clearly, that this is something that we must address." "How do
we bring the communities back into this process more, and I
assume your position would be without giving them veto power
over the department?"
MR. EASTON said it is a good question, and he doesn't know. He
defers to DNR as the lead in how to improve the program. His
only interest is the DEC carve-out. "We are interested in making
sure that the districts feel like they have a seat at the table,
at the same time we're very interested in not subrogating our
final authority for interpreting and applying state
environmental standards."
4:24:48 PM
CHAIR OLSON said it looks like there is a fear that DEC
standards will come under the umbrella of ACMP standards, and he
asked if there is a conflict between the two standards.
MR. EASTON said there is no conflict now, because it is clear
that DEC standards are the policies. There is concern that, in
certain areas, the districts may want different standards, and
that could create a patchwork of different standards. It might
not be based on science or subjected to federal approval. It
would not create a good regulatory regime.
SENATOR WAGONER asked how many coastal districts there are and
how many have submitted and approved plans.
4:27:26 PM
RANDY BATES, Director, Division of Coastal and Ocean Management
(DCOM), DNR, said there are 28 participating districts. There is
a federal granting agency (OCRM) that has approval authority
over any program changes Alaska makes. There are 16 coastal
district plans in effect and approved. Four were sent to OCRM,
and he just received notice that those program changes have been
approved. It also approved the transfer of authority to the new
DCOM. Now those four plans will be filed with the Lieutenant
Governor and go into effect 30 days after his signature.
SENATOR WAGONER asked if eight have not been submitted or if
they are being updated.
MR. BATES said Aleutians East, Bristol Bay, and Juneau have
completed their plans and are pending submission to OCRM. The
districts have to clean up those plans and get them in final
form. They have DNR approval. Bering Straits, North Slope
Borough, and Northwest Arctic Borough have chosen to mediate the
decision of the DNR commissioner. The other two, Cordova and
Ceñaliulriit, are going to be submitted.
4:30:43 PM
CHAIR OLSON asked how long those will take.
MR. BATES said for the five that are not mediating, "the
timeframe is largely their doing." As soon as DNR gets a clean
version - incorporating the commissioner's recommendations --
DNR will submit it to the federal agency. That takes two to
three weeks, and OCRM has a 28-day review process that can be
extended. So that is two to three months after getting a clean
plan from Aleutians East, Bristol Bay, Juneau, Ceñaliulriit, and
Cordova.
SENATOR KOOKESH moved the committee substitute for SB 161,
version 25-LS0883\C, Bullock, from committee with individual
recommendations and attached fiscal note(s).
SENATOR WAGONER objected.
A roll call vote was taken. Senators Kookesh, Stevens, Thomas,
and Olson voted in favor and Senator Wagoner voted against.
Therefore, CSSB 161(CRA) passed from committee on a vote of 4:1.
4:35:01 PM
SENATOR STEVENS said he would like to hear about a middle ground
because every community expressed frustration at not being at
the table. He asked DNR to present that to the next committee.
SENATOR KOOKESH said that "middle ground" will need to be
supported by the communities. The department has had a lot of
time to work on this and the communities are still unsatisfied.
CHAIR OLSON said he has not heard a single district happy with
it, and if there was middle ground it should have been put in
place a long time ago.
SENATOR STEVENS said he agrees. He has heard enormous
frustration. In the sponsor statement, Chair Olson said not to
go back to the way things were. It needs discussion.
4:36:43 PM
SENATOR WAGONER said, "I understand some of the reasons. If you
take authority for permitting in certain areas away from local
areas, I understand why they are upset, and that is one of the
reasons they are upset." At the same time, one of the reasons it
was done was because people were having trouble getting permits.
He opposes SB 161 even if it may be a large improvement, "but
until the districts do what they said they would do and get
their plans through, reviewed, and approved and accepted - and
we got all 28 of them that have done that - then if we need to
make some modifications, that's the time to make modifications."
He said some people haven't even complied with the law yet, and
keep getting extensions "for years and years and years." He gets
upset that these people delay and delay and delay. His borough
is one of them. But there comes a time when "you do the work
that you say you will do, and then … if there are problems …
we'll work them out." He said the committee is talking about
passing a new bill when people haven't complied with the bill
that's in place.
4:38:34 PM
CHAIR OLSON said the ability to comply with the old one is
almost impossible. Part of it was the problem that DNR had
hiring people and redoing letterheads. "We need to go ahead and
do something in a timely manner so we have some way to regulate
what's going on out there." Yesterday there was a big sale in
the Chukchi area, and people are upset because they didn't have
any influence. It is federal lands, and that is the reason for
the bill. Over the last six years, "attempt after attempt by
people that I have been in close contact with, have been
frustrated." There is a letter from one of the directors that
said he won't talk about regulation review until June 2009. "I
find that not just upsetting, I find that unreasonable." He said
he offered the bill to get some movement.
4:39:50 PM
SENATOR WAGONER said it is also frustrating to sit here and have
the people say they can't comply. "I can come up with 1,000
different reasons why I can't do something, and sometimes it's a
lot easier to do that than do the work that's requested of me
and then look at it and see if it works or doesn't work and then
go from there."
CHAIR OLSON said that is valid.
SB 235-ALCOHOL: LOCAL OPTION/LICENSING/MINORS
CHAIR OLSON announced the consideration of SB 235.
4:41:57 PM
ANNE CARPENETI, Assistant Attorney General, Criminal Division,
Department of Law, said there are three sources for SB 235:
recommendations from the Rural Justice Commission; a study by
the Department of Health and Social Services in conjunction with
federal guidelines to limit underage drinking; and an effort by
the administration to enforce bootlegging laws in communities
that have adopted local option.
4:42:45 PM
MS. CARPENETI said the holdover from the Rural Justice
Commission prohibits sending alcohol to a local option community
in plastic bottles. It is more difficult to detect alcohol in
plastic bottles. Sections 2, 3, 4, and 5 require the Alcohol
Beverage Control Board to impose civil penalties on liquor
licensees if their agents or employees in bars and package
stores are convicted of selling alcohol to a minor. This was a
recommendation by the study on underage drinking. It follows the
laws regarding tobacco sales, which have greatly reduced sales
of tobacco to minors because store owners are paying more
attention to employee behavior. By having civil penalties on
liquor licensees, it is hoped that they will emphasize the law
to employees. Currently, bootlegging is a Class A misdemeanor
for small amounts of liquor, and it is a Class C felony for
larger amounts. In support of local option, the bill makes it a
Class C if convicted for a third time of supplying smaller
amounts. There is a mandatory minimal penalty for bootleggers,
which is almost exactly like the one for drunk drivers, except
the look-back period will be 10 years. It will change the
manslaughter statute. A person who bootlegged alcohol to one of
these communities could be prosecuted for manslaughter if a
person who drank it died from alcohol poisoning. That is similar
to the methamphetamine law. The bill will also allow those
charged to be eligible for therapeutic courts.
4:46:08 PM
SENATOR WAGONER said he is from Washington where a person can't
buy liquor without a special identification card. "There wasn't
any under-aged purchase of alcoholic beverages from state liquor
stores in the state of Washington."
MS. CARPENETI said there is a bill being considered that
requires driver's licenses to be easier to read. That would be
similar to the Washington situation.
SENATOR WAGONER said not at all. In Washington, a driver's
license is not a recommended identification in a liquor store.
MS. CARPENETI said she will take that idea to DMV.
4:48:39 PM
SENATOR THOMAS expressed concern about the second paragraph and
holding people responsible for another person's actions. It
requires the ABC to levy fines and suspend licenses if a
bartender or clerk is convicted of furnishing alcohol to a
minor. So the owner will be punished for what the bartender
does. He acknowledged that there is a big problem, but trying to
hold one person responsible for another's action is difficult
for him to accept. It may impact a responsible bar owner.
4:50:12 PM
MS. CARPENETI said she understands, but the experience with
tobacco enforcement has been impressive in how these civil
penalties can affect the way an owner runs a business. It is the
owner who sets the tone of how important the laws are. The
penalties are graduated so that the first offense has a small
penalty. It has worked very, very well with tobacco enforcement.
SENATOR THOMAS asked if more distinct I.D.s. or marks on
driver's licenses for DUI offenders have been considered.
MS. CARPENETI said there was a several-year discussion on a
recently-passed bill on marking the driver's license. It was a
real struggle to pass it, and it doesn't require licensees to
check licenses, but it requires DMV to have the mark on the
license. That was a compromise.
4:52:25 PM
SENATOR THOMAS said someone with a fake I.D. is a different
circumstance than if someone was not asked to show one. If they
were required to ask, that would make a difference to him.
MS. CARPENETI said that was one of the problems; the licensees
didn't want to have to ask everyone.
CHAIR OLSON asked if a person traveling with alcohol in their
checked baggage has to have it in plastic containers as well.
MS. CARPENETI said the bill applies to licensees sending alcohol
to local option communities in response to a written order.
4:53:28 PM
CHAIR OLSON asked if homemade wine needs to be in plastic.
MS. CARPENETI said SB 235 refers to licensees who are sending
alcohol to a rural area.
DIANE CASTO, Manager, Prevention and Early Intervention
Services, Behavioral Health, Department of Health and Social
Services (DHSS), Juneau, said she supports SB 235. One of the
main issues she deals with is substance abuse. To stem the tide
of later alcohol abuse it is important to work with youth. She
will supply the committee with Alaska's Plan to Reduce and
Prevent Underage Drinking. The plan is now open to public
comment. The acting Surgeon General came to Alaska when the plan
was released. Alaska's plan is based on a national movement. In
2002, the Institute of Medicine and the National Research
Council put together a strategy called "Reducing Underage
Drinking, a Collective Responsibility." It helped Alaska develop
its plan. All of the research asserts that access to alcohol is
the main issue. Not all access comes through venders, but the
plan calls for higher penalties for retailers, which is a
critical component.
4:57:20 PM
MS. CASTO referred to the Biannual Youth Risk Behavior Survey.
It is a CDC survey that is done by the Department of Education
and DHSS. The 2007 results show a small decline in substance
abuse in Alaska. She said 73.6 percent of students in grades 9 -
12 reported having had at least one drink of alcohol one or more
days during their lifetime, and 20.4 percent of students had
their first drink -- other than a few sips -- before age 13.
Research shows that rates of lifetime dependence on alcohol
decline from more than 40 percent among individuals who start
drinking at age 14 or younger, to roughly 10 percent for those
who start drinking at age 20 or after. "So it is critical when
kids start drinking as to what their lifetime dependence will
be." She said 39.7 percent of students had at least one drink in
the last 30 days, and 25.8 percent of students reported having
five or more drinks in a row -- binge drinking -- on one or more
occasions. Over 9 percent reported driving and drinking at least
once in the past.
4:59:33 PM
MS. CASTO said it is a problem that over 70 percent of our
children have started drinking by high school. "We need to find
ways to curb that."
SENATOR WAGONER asked how it compares nationally.
MS. CASTO said Alaska is often high, but she doesn't have the
current national data. In 2005, Alaska is a little below the
national average, which is good. "Hopefully we're starting to
see some progress."
5:00:53 PM
SENATOR THOMAS asked the sources of alcohol for the kids.
MS. CASTO said that question is not asked in the survey. The
tobacco survey does ask. She referred to a chart. In 1995 27
percent of Alaska high school youth purchased tobacco at a
store, and in 2003 it dropped to 12 percent. "We changed our
laws related to penalties for selling tobacco to a minor in
2002." There was a significant drop in how many youth were
buying at the store. In 2007 only 3 percent were purchasing
tobacco from a store. She doesn't have the data for alcohol.
SENATOR THOMAS said it would be wise in figuring how to spend
resources.
MS. CASTO said it is a CDC survey. There is a process for adding
questions, and that question has been discussed.
5:03:20 PM
MS. CASTO said alcohol and youth is a lethal combination. The
highest suicide rates for Alaskans are for 15-24 year olds.
Nationally the age is much older. In Alaska 43.7 percent of all
suicides involve alcohol or drugs. "So we know that alcohol is
mixing with youth who are having a bad day and often times
ending up in suicide." Alcohol increases the natural impulsivity
of youth. Many are driving and drinking, creating critical
injuries and fatalities. The three things in SB 235 that will
impact under-aged drinking include the development of a
statewide system to track minor consuming citations. Data is
kept sporadically in the court system, but there is not one
source where a judge, a treatment facility, or a probation
officer can find out how many minor consuming offenses a youth
has had. A judge might think the youth has only had the current
offense, when he or she has actually had several. SB 235 will
provide a tracking system for these youth and make sure they are
getting the treatment they need. The bill will also reduce
access to alcohol from vendors by increasing penalties. Alaska
is proud of its stringent tobacco penalties. It has
significantly reduced the sale of tobacco to Alaska youth.
5:06:31 PM
MS. CASTO said that holding both the clerk and owner responsible
is the critical element. The other piece that has made the
tobacco law successful is the consistent and mandatory penalty.
Alcohol penalties are not now mandatory or consistent. Sometimes
there is no penalty at all. New laws have worked for tobacco.
The third impact of SB 235 is putting more emphasis and more
control in the damp and dry communities. The kids are getting
some of the alcohol coming into those communities.
SENATOR WAGONER asked why the proposed penalties for clerks are
greater than for the licensee and business owner.
5:08:37 PM
MS. CASTO said there are no proposed changes for the clerks in
this bill. It will make the owner part of the responsibility.
SENATOR WAGONER said the owner should have the primary
responsibility. It should be more stringent for the business
owner selling alcohol than the clerk. The clerks are getting
$8.00 an hour, and the first offense is $10,000 and a year in
jail. The penalties for the licensee are much smaller.
MS. CARPENETI said current law will not change for the clerks
and the agents. This bill will impose the only penalties on the
licensee and the owner of the business. Right now there are no
penalties. This would make it more rational.
SENATOR WAGONER said maybe we should make it more stringent.
MS. CASTO said the penalties are not mandatory now. The normal
penalty for a clerk is some community service hours or a
suspended penalty.
SENATOR WAGONER said his son owned a sport bar in Washington and
the laws were strict; if he had a violation of drugs on the
premises or serving tobacco or alcohol to a minor, he would lose
his license for good. Alaska is not stringent.
5:11:52 PM
SENATOR THOMAS asked how the tobacco data was confirmed.
MS. CASTO said the state is responsible to the federal
government because of a $4.6 million block grant. Alaska has to
do a Synar inspection, named after former U.S. Senator Mike
Synar. Three investigators work with student interns to do
compliance checks. There is a stratified sample across rural and
urban Alaska.
SENATOR THOMAS asked if the investigating interns use an I.D.
showing their ages.
MS. CASTO said they use their own I.D. Most of them are around
16 years old. There are strict requirements to keep from
tricking anyone. Boys can't have facial hair, for example. There
is an annual Synar Report.
5:15:11 PM
SENATOR STEVENS asked about waitpersons.
MS. CASTO said they're included, as is anyone who sells alcohol.
SUE MCLEAN, Chief Assistant Attorney General, Criminal Division,
Department of Law, said she spent years as a prosecuting
attorney and wants to address the importation of alcohol into
communities that exercise local option. She worked in Kodiak,
Kenai, Bethel, and elsewhere. She was the District Attorney in
Bethel and then started a rural prosecution program to assist
attorneys in western Alaska. Crimes there are so much more
serious than elsewhere. The villages that have kept alcohol from
their communities have done it purposefully. The violent crime
in those places when alcohol turns up is much more violent.
Tragically, it is often directed at another family member or
friend. It is tragic all around; it isn't a drive-by shooting.
5:18:17 PM
MS. MCLEAN said of the few cases that she helped, two involved
young people who were intoxicated and threatened to shoot
themselves and ended up shooting their parents. One involved
chasing an unarmed peace officer with an ax. "I don't think
those things would have happened if it weren't for alcohol."
Alcohol plays a large part in almost every crime she has seen in
western Alaska. Yesterday she read a transcript of a taping of a
bootlegger who said he had R & R Whiskey, which he would get
$150.00 for each 1.5 pints. That is the going rate -- if not
more. The bootleggers are making a business decision, because
the first time they are caught the likelihood of serving any
time is nil. It is probably true for the second time they are
caught. The villagers are trying to keep the tragedy of alcohol
from their families. It is indescribable to stand in a courtroom
where a brother has killed another brother, or where a sister
tried to burn down a house with her brother and his children
inside. When she was brought into court the next morning, she
can't even believe she did that. There are so many conflicting
emotions. People don't remember what they have done. The
families love the victim and the offender. That they have chosen
to have the village dry, is something we should all support.
5:21:41 PM
MS. MCLEAN said one way to support those communities is to make
the bootlegger's business decision a little more expensive --
knowing that he will go to jail -- knowing that the third time
he gets caught, he will have a felony - knowing that if someone
drinks themselves to death, he will be held criminally
responsible. That puts the bootlegger in touch with the
consequences of what, for them, is simply a business. She
referred to the bootlegger who was selling the $10 whiskey for
$150. He had 76 bottles and would make $11,000. "There's no
reason that a person wouldn't bootleg if they know they're not
going to jail and they're going to get $11,000 for six cases of
alcohol."
5:22:51 PM
MATT FELIX, Director, National Council on Alcohol and Drug
Dependence, Juneau, said he is head of the legislative committee
for the State Directors Association. He is in the trenches with
the people who are addicted to or abusing alcohol. He has done
this for 36 years. He was once the state director of the
Division of Alcohol and Drug Abuse. He assisted Senator Binkley
in developing and implementing local option. He supports the
local option section of this bill. "Any time you can tighten up
local option, then we certainly agree with it." It has been
effective in dramatic reductions in a variety of health and
social ills, as shown by studies. Barrow and Selawik were
perfect research spots because they switched from dry to wet and
back. He supports the enforcement section. He agrees with
Senator Wagoner on enforcement; Washington does it right and
Alaska doesn't. The licensee is the responsible person. They are
licensed to sell alcohol - a product that has potential harm. If
they don't follow the law, they should suffer the consequences.
"I think this bill is a little light on that area."
5:25:32 PM
MR. FELIX said enforcement is prevention. Title IV is a statute
that came into being with statehood, and it needs updating. The
bill does this well.
5:26:28 PM
PATRICIA LEEMAN, Deputy Directory, Operations, Division of
Juvenile Justice, DHSS, Bethel, spoke to the impact that alcohol
is having on rural Alaska and its kids. She has spent 18 years
as superintendent of the Bethel Youth Facility, which is a
juvenile detention and treatment facility. When youth drink,
their judgment is reduced, and the awareness of the consequences
of their actions becomes muddled. Between 50 and 80 percent of
all crime by juveniles involve alcohol in some way. The youth
may be intoxicated when committing an assault, or they may be
breaking into someone's house to find liquor. Drinking makes
young people easy targets for rape, assault, and sexual abuse
and vulnerable to suicide. It is not unusual to see girls who
have been so intoxicated when they were raped they don't even
know it happened. Families become devastated. When she came to
town 19 years ago, many youth who came to the attention of
juvenile justice could not identify a single sober member of
their family to be placed with. It remains true. The more
readily alcohol is available, the more crimes youth commit. The
more that access is limited, the more we can limit crimes.
5:29:37 PM
MS. LEEMAN said there were 521 minor consuming alcohol referrals
to the Bethel District Attorney's office from January 1, 2007 to
October 11, 2007. It represented 25 percent of all misdemeanor
referrals and 20 percent of total referrals during that time.
This bill does a lot of different things to keep alcohol out of
the hands of young people. Making alcohol less accessible in the
YK [Yukon-Kuskokwim] delta would make a big difference for all
the villages. For juvenile justice, the most useful part of SB
235 is establishing a tracking mechanism for minor consuming.
Currently, when someone is cited for underage drinking, there is
no indication as to the number of times that youth has been
cited before. There is lack of information on whether the person
has complied with the treatment requirements that had been set.
In 2006 some agencies convened a task force on minor consuming.
They found that youth were listed as first-time offenders
multiple times as there was no way to track their histories.
Police couldn't appropriately charge a young person for
consuming alcohol.
5:31:28 PM
MS. LEEMAN said the police could only contact a dispatch officer
and ask to look at a four-inch stack of prior convictions, so
the youth would often be charged as a first-time offender. The
task force learned that 52 percent of the youth that were in
court for the third time were convicted as first-time offenders.
One youth was on the sixth offense and was convicted of having a
first offense. Bethel now has a better tracking mechanism. This
bill lays the groundwork for a statewide system. Bethel youth
seem to be taking the charges more seriously now that they see
that the justice system is more serious and following up with
increased penalties for subsequent offenses and increased
treatment that they so desperately need.
5:33:28 PM
CHAIR OLSON obtained unanimous consent to redraft SB 235,
Version A, to conform to the drafting manual.
SENATOR THOMAS said he is concerned that owners of a license are
responsible for their agents. It seems to be no different than
holding the commissioner of public safety responsible for all of
the criminal actions of their personnel. There have been many
police officers charged, and that is "no different than holding
a bar owner responsible for their bartenders, when they may not
even be on the premises."
CHAIR OLSON said Senator Wagoner is on the other end of that,
but he has elected not to offer an amendment.
SENATOR THOMAS said part of the bill deals with problems in the
bush, and that is most serious. That doesn't mean there are no
problems in the urban areas. His concern is with licensees that
"make a good attempt to control something, but this is twice in
a five-year period of time." That's a long time to make sure
that every employee does not violate the law. A person may be
responsible for 30 or 40 employees. Senator Thomas said he is
not prepared to offer an amendment today.
5:37:39 PM
CHAIR OLSON said he can hold the bill.
SENATOR THOMAS said he would not want to be held responsible for
some of his employees' actions.
MS. CARPENETI said this is a civil penalty. A person is not
criminally responsible for the acts of another person. It occurs
only after a third offense in five years.
SENATOR THOMAS read the lines: levy fines, and for second or
subsequent offense in a five-year period -- suspend license.
MS. CARPENETI said, "It's a 7-day license suspension for second,
and it's a 30-day for third and subsequent … in a five-year
period."
The meeting was adjourned at 5:39:16 PM.
| Document Name | Date/Time | Subjects |
|---|