Legislature(2007 - 2008)BARNES 124
04/26/2007 08:00 AM House COMMUNITY & REGIONAL AFFAIRS
| Audio | Topic |
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| Start | |
| Community Services Block Grant Program | |
| HB232 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 232 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 232-ALCOHOL SALE/PURCHASE/DISTRIBUTION 9:02:41 AM CO-CHAIR LEDOUX announced that the final order of business would be HOUSE BILL NO. 232, "An Act relating to the sale, distribution, and purchase of alcoholic beverages; relating to a state database for records of certain purchases of alcoholic beverages; relating to the relocation of a license to sell alcoholic beverages; relating to procedures for local option elections for control of alcoholic beverages; and providing for an effective date." CO-CHAIR LEDOUX further announced that she's not planning on moving HB 232 out of committee today. She then noted that members of the Bush Caucus were invited to participate since HB 232 impacts rural communities of the state. She then noted the presence of Representatives Edgmon and Nelson. 9:03:33 AM MIKE PAWLOWSKI, Staff to Representative Kevin Meyer, Alaska State Legislature, explained that Sections 1-2 establish a statewide database for the written order system. The written order system sets a limit in the amount of what a person can purchase in a given month or what a licensee can ship. The database is envisioned to allow the licensee to stay within the law and the individual to track the amount of alcohol they have had shipped. Section 3 prohibits a package store from shipping alcohol to a person other than that person's address. Although the aforementioned is specified in statute, this clarifies the intent in statute. Sections 4-5 address the transfer of a liquor license within a borough to a city, in which the Mat-Su Borough expressed interest in order to foster economic development. He explained that since liquor licenses are limited by population and under a limited entry system, there might be several licenses in a borough while very few available in the city. Sections 4-5 specifies that when a local governing body decides that the transfer of a liquor license from a borough to a city is appropriate, it can allow the transfer. Sections 6, 7, 11, and 12 prohibit an individual from purchasing alcoholic beverages in a local option area from an individual selling alcohol in violation of the local option. Mr. Pawlowski pointed out that current statute only specifies that it's illegal to sell [alcohol to individuals in violation of a local option] while it doesn't speak to the individual purchasing [alcohol in violation of a local option]. Section 8 changes the time between the adoption of a local option and an election to change that option from 12 months to 24 months. Section 9 prohibits a person from purchasing alcohol by written order on behalf of another person. Section 10 prohibits the possession of ingredients for home brew. Sections 13-14 are clarifications to forfeiture provisions. Section 15, a substantive provision, allows the establishment of a pilot project for alcohol delivery sites. Sections 16-20 are instructions to the revisor. 9:07:09 AM REPRESENTATIVE NEUMAN expressed concern with Section 10, and inquired as to who determines "intent". He then stressed his concern with regard to a state database that tracks individuals' liquor purchases, which would seem to be personal information. Representative Neuman then turned attention to Andy Lundquist's email in which she highlights that computer access is necessary to fulfill the mandate in HB 232, which could be a burden for small licensees. MR. PAWLOWSKI said that the sponsor is aware of those issues. He acknowledged that the concern with Section 10 is valid, but suggested that having the ingredients in conjunction with the equipment necessary to brew alcohol would seem to make it clear that an individual is brewing alcohol. With regard to the concern surrounding privacy, he pointed out that the state already tracks written orders. To address the privacy concern, he suggested that perhaps the database could be purged on a regular basis. Therefore, the state would collect information, but not retain it. The concern for small licensees is fair, but he pointed out that the written orders are done mainly through larger businesses. In fact, most often the small licensee is purchasing large volumes from one of the hub communities. Mr. Pawlowski related that the sponsor feels that licensees have a responsibility to ensure that he/she isn't violating the law. 9:11:19 AM REPRESENTATIVE NEUMAN pointed out that with the methamphetamine database the store keeps the database and the state requests the database if it's needed. Perhaps, the aforementioned could be done with alcohol, he suggested. MR. PAWLOWSKI said it's something the sponsor could review. 9:12:06 AM CO-CHAIR FAIRCLOUGH reminded the committee that HB 232 implements several of the recommendations made in the Alaska Rural Justice and Law Enforcement Commission Report. This legislation allows Village Public Safety Officers (VPSOs) as well as state troopers to enter dry and damp communities to garner a better case when enforcing the local option in place. Co-Chair Fairclough reviewed the committee's concerns from the last meeting and today's meeting. With regard to concerns expressed regarding the local elections, she opined that the state isn't trying to control local elections but rather that more time is allowed for a community to [settle into] its local option before changing it. 9:14:53 AM REPRESENTATIVE NELSON related her understanding that under HB 232 there can't be an election [on the local option] prior to 24 months after the existing local option was implemented. MR. PAWLOWSKI explained that Section 8 specifies longer timeframes in which [a community with a local option in place] can have a special election to remove or go to a less restrictive option. CO-CHAIR LEDOUX surmised then that a community with a local option could go to more restrictive option within short period. MR. PAWLOWSKI deferred to Ms. Carpeneti. 9:16:05 AM ANNE CARPENETI, Assistant Attorney General, Legal Services Section - Juneau, Criminal Division, Department of Law, pointed out that Section 8 is current law. Current law provides that there can't be an election that would remove a local option or adopt a less restrictive option within 12 months [of adopting or changing a local option]. After hearings throughout the state, the Alaska Rural Justice and Law Enforcement Commission decided that the aforementioned probably wasn't adequate time for a local option to take effect. Therefore, the recommendation was to extend the time from 12 months to 24 months. In further response, Ms. Carpeneti noted that statute allows elections for several local options sooner than 12 months. 9:17:44 AM REPRESENTATIVE NELSON asked if anything precludes a community from placing such a question on a regular ballot. MS. CARPENETI said she believes that's allowed, but offered to confirm that. 9:18:35 AM REPRESENTATIVE EDGMON inquired as to the meaning of the language in Section 8 on lines 19-20. MS. CARPENETI explained that under current law there are limitations regarding how often a community can hold local option elections. She surmised that the Alaska Rural Justice and Law Enforcement Commission was probably thinking that since the time between elections was changed from once every 12 months to 24 months, then it would probably be necessary to extend the general time period between elections. Ms. Carpeneti reiterated her understanding that the notion was to provide local options more time to take effect as there are adjustments that have to be made, such as the closure of package stores. In further response to Representative Edgmon, Ms. Carpeneti clarified that current law provides that a community can't remove an option, but it can adopt a more restrictive option in less time. 9:21:30 AM CO-CHAIR LEDOUX related her understanding that communities will have to abide by this election law; it isn't a local option to adopt the time periods specified in HB 232. MS. CARPENETI replied yes. MR. PAWLOWSKI related his understanding that the ballot comes at a regular special election that's left to the municipality to decide, which is clearly stated in AS 04.11.507(b): (b) Upon receipt of a petition of a number of registered voters equal to 35 percent or more of the number of votes cast at the last regular municipal election, the local governing body of a municipality shall place upon a separate ballot at the next regular election, or at a special election, whichever local option, change in local option, or removal of local option constitutes the subject of the petition. The local governing body shall conduct the election under the election ordinance of the municipality. 9:23:02 AM MS. CARPENETI, in response to an earlier question by Representative Neuman, clarified that the database applies to local option areas that are damp only. Furthermore, the database applies to written orders by people who live in local option damp areas. Currently, before responding to a written order from a resident of a local option community, the licensee is required to keep records of purchases for a year. The licensee is required to notify the Alcoholic Beverage Control Board ("ABC Board") of those ordering more alcohol than the local option allows. Ms. Carpeneti explained that currently there is no mechanism for a licensee to see if other licensees have filled the order for the month, which the proposed database in HB 232 would provide. REPRESENTATIVE NEUMAN expressed concern that small business owners, under HB 232, would be required to have a computer in order to report this information to a database. He questioned how far government can go into a private business. MS. CARPENETI pointed out that the written orders are mainly filled by large licensees in Anchorage. Depending upon how the database is established, the law requires that the ABC Board work with licensees, which she assumed could be done with a phone call. 9:26:20 AM CO-CHAIR FAIRCLOUGH clarified that the data is already required to be gathered. The only thing that's new is that the ABC Board would have that data from those who distribute alcohol to dry or damp communities. Co-Chair Fairclough opined that more people could access the existing database than would be the case under the proposed database in HB 232. 9:27:34 AM REPRESENTATIVE NELSON related her understanding that very few companies do written orders for which a log must be kept. Furthermore, a limit as to how much can be imported per person in damp communities already exists. She pointed out that there are ways in which to play the system and make it more difficult to track the importation of alcohol. The reason, she opined, that a database is necessary is for those who want to import more alcohol than is legally allowed for personal consumption. This legislation attempts to prevent gaming the existing laws. She further opined that Alaska is a frontier state, which is evident in the hub communities where residents feel they have a constitutional right to drink alcohol. However, the Alaska Constitution doesn't specify that. Representative Nelson pointed out that many rural communities want to be dry, but have difficulty doing so because the neighboring community is wet. Many rural communities want to be dry and are saying that a system that's harder to buy and sell alcohol is necessary, she said. Representative Nelson noted her agreement with Co-Chair Fairclough's earlier statements, adding that she isn't as concerned with the statewide database as others. 9:31:09 AM REPRESENTATIVE EDGMON asked whether those who do ship alcohol to rural Alaska were consulted in terms of the additional work and cost to them. MR. PAWLOWSKI replied yes, [the sponsor] has spoken with a few [licensees that ship alcohol to rural Alaska]. He then posed the licensee's perspective in which the licensee would want to ensure that he/she follows AS 04.11.150(g), although [currently] it's next to impossible for a licensee to comply because of the possibility of gaming. Therefore, the database provides a tool for the licensees to ensure they are complying with the law and for the communities to control the importation of alcohol. 9:32:50 AM CO-CHAIR LEDOUX asked if it's currently illegal to consume alcohol in a dry community. MS. CARPENETI replied yes. CO-CHAIR LEDOUX then asked if that's been challenged on the same grounds as the consumption of marijuana in the Raven decision. MS. CARPENETI related that the local option laws were litigated in relation to constitutionality back in the 1980s and early 1990s when first adopted. The local option laws have been upheld by the court system. In further response to Co-Chair LeDoux, Ms. Carpeneti related her understanding that the local options were upheld in the context of criminal prosecutions. She offered to provide the committee with the decisions. She then mentioned, in response to earlier queries regarding methamphetamines, that the federal government is discussing the use of a database to thwart situations in which individuals purchase the maximum amount of cold medicine from various stores. Therefore, the use of the proposed database in HB 232 isn't that unusual. 9:34:35 AM REPRESENTATIVE NELSON informed the committee that for those making a written order in Bethel, it's not delivered to a person's residence but rather it's sent via air carrier and is picked up from the air carrier. The aforementioned is addressed in Section 3 of the legislation. Representative Nelson offered that a large reason for the alcohol delivery site is so that residents of a dry community can't order and pick it up from the freight office and drive home. Those picking up alcohol from the alcohol delivery site must be from a damp community. CO-CHAIR LEDOUX posed a situation in which a resident of Kwethluk, a dry community, visits Bethel for a week and that Kwethluk resident wants to do some entertaining while in Bethel. She asked whether that Kwethluk resident would be able [to purchase alcohol while in Bethel]. REPRESENTATIVE NELSON said that those from a Barrow area village can't pickup alcohol from the delivery site. 9:36:44 AM MS. CARPENETI, in response to an earlier question from Representative Edgmon, pointed out that the definition of "established village" is found in AS 04.24.080(9), which says: (9) "established village" means an area that does not contain any part of an incorporated city or another established village and that is (A) an unincorporated community that is in the unorganized borough and that has 25 or more permanent residents; or (B) an unincorporated community that is in an organized borough, has 25 or more permanent residents, and (i) is on a road system and is located more than 50 miles outside the boundary limits of a unified municipality, or (ii) is not on a road system and is located more than 15 miles outside the boundary limits of a unified municipality; REPRESENTATIVE EDGMON asked then whether HB 232 applies to those communities with populations of 25 or less. MS. CARPENETI related her understanding that an area with a population of less than 25 wouldn't be considered an established village and wouldn't be able to adopt a local option. In further response, Ms. Carpeneti specified that HB 232 doesn't change the local option law in any major way that would [change the aforementioned]. 9:38:46 AM CO-CHAIR LEDOUX drew attention to Levelock, a community with a population of less that 25 permanent residents, and asked whether it would be able to adopt a local option to be dry. MS. CARPENETI said she would need more information. However, she noted that [the local option law] is based on permanent residents. CO-CHAIR LEDOUX then posed a situation in which a village with 30 residents enacts a law to be damp or dry. She inquired as to what happens when six people move away from such a village. 9:40:50 AM DOUGLAS GRIFFIN, Director, Alcoholic Beverage Control Board ("ABC Board"), Department of Public Safety, said that [the ABC Board] doesn't really address/monitor a community that experiences a decline in population. The [ABC Board] makes sure that a community meets the threshold of [25] permanent residents at the time the local option is adopted. 9:42:50 AM CO-CHAIR FAIRCLOUGH, drawing from her local government experience, said that a local vote on a matter not covered by [or at a more restrictive level] than state law would be a local control issue. 9:43:49 AM REPRESENTATIVE CISSNA inquired as to how PO Boxes are addressed. REPRESENTATIVE NELSON said she believes that it's illegal to ship alcohol through the mail. MR. GRIFFIN pointed out that under 13 ACC 104.645(c)(5) it requires the resident address of the purchaser. 9:45:05 AM REPRESENTATIVE SALMON requested explanation of Sections 13-14. MS. CARPENETI characterized Sections 13-14 as conforming amendments. She explained that current law prohibits a person from bootlegging alcohol but doesn't prohibit a person from purchasing bootleg alcohol. This legislation would make the purchase of alcohol from a bootlegger a class A misdemeanor. She further explained that the forfeiture statutes in Title 4 allow forfeiture of airplanes, boats, automobiles, and various other types of transportation that transport bootleg alcohol into a community in violation of the law. This legislation would allow the existing law, forfeiture of the alcohol in connection with a conviction for selling, to continue while excluding the forfeiture of vehicles in connection with the conviction for purchasing. MR. PAWLOWSKI pointed out that the provision cited [04.11.499(a)] in Sections 13-14 is from Section 7. MS. CARPENETI commented that to make the minor change, all the forfeiture provisions had to be changed to exclude forfeiture under the circumstances of the purchase. 9:47:22 AM REPRESENTATIVE EDGMON said that Section 10 is of concern with the definition of "material and equipment" and "with the intent". Drawing upon his experience living in rural Alaska, he said that there are times when law enforcement is at odds with the local leadership or a specific resident and thus "with the intent" could mean various things. He questioned the implications if the language if it's broadly interpreted. MS. CARPENETI said that it's a specific intent and defense, which isn't an uncommon defense in criminal law. Furthermore, it's the most difficult to prosecute because it has to be proven that a person did an act with the specific intent to do something else. She pointed out that there are other [similar statutes] with regard to the possession of precursors to methamphetamine with the intent to manufacture meth, which is illegal. She also pointed out that it's illegal to possess burglary tools with the intent to commit burglary. Ms. Carpeneti emphasized that it's very difficult to prosecute this because it has to be proven that the individual possessed the item(s) with the specific intent to perform an illegal act. Therefore, she opined that the crime addressed in HB 232 will probably only be prosecuted if there is an admission or an extraordinary situation. 9:49:55 AM REPRESENTATIVE SALMON commented that just merely being charged [with purchasing alcohol in a dry community] is a hindrance itself. MS. CARPENETI pointed out that the aforementioned is the case with all laws. 9:50:14 AM REPRESENTATIVE EDGMON surmised that the term "vehicle" refers to snow machines and all terrain vehicles (ATVs). MS. CARPENETI replied yes. REPRESENTATIVE NELSON thanked the committee for inviting [the Bush Caucus] to comment on HB 232. 9:51:12 AM CO-CHAIR LEDOUX re-opened public testimony. 9:51:25 AM LOUISE STUTES expressed concern with the provision allowing a license [to sell alcohol] from the borough to be brought into the city. 9:52:38 AM CO-CHAIR LEDOUX, upon determining no one else wished to testify, closed public testimony. She then announced that HB 232 would be held over. 9:53:04 AM CO-CHAIR FAIRCLOUGH mentioned that there is a possible amendment to Section 10 that would address the concern that law enforcement could misuse their powers. Per the amendment the language on page 5, line 29, would read as follows: "may not possess quantities of sugar, artificial sugar, malt, yeast that exceed personal use in excess of one year; and any other material or equipment with the specific intent to use the material or equipment to create an alcoholic beverage."
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