Legislature(2001 - 2002)
02/20/2002 01:08 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 281 - CIVIL LIABILITY FOR PROVIDING ALCOHOL Number 0057 CHAIR ROKEBERG announced that the first order of business would be HOUSE BILL NO. 281, "An Act relating to civil liability for providing alcoholic beverages to a person under 21 years of age; and providing for an effective date." Number 0069 REPRESENTATIVE MEYER, sponsor, noted that in Alaska as well as across the nation, underage drinking is a significant problem. He said that according to a study conducted in 2000, "people who begin drinking before age 15 are four times as likely to develop alcohol dependence, and more than twice as likely to develop alcohol abuse, than those who delay drinking until the legal age of 21." He added that statistics related to [fatal auto accidents] climb when a drunken teenager gets behind the wheel of a car. He remarked that the tragedy last July, which took the lives of three teenagers and police officer Justin Wollam, has highlighted the problems of underage drinking, drinking and driving, and adults providing alcohol to minors. REPRESENTATIVE MEYER explained that under HB 281, an adult who knowingly furnishes alcohol to a person under the age of 21 can be held civilly liable for the resulting damages. Under current statute, he noted, licensees who knowingly sell alcohol to a minor can be held civilly liable for damages if it's determined that the alcohol is a substantial factor in causing injury or damage. Therefore, he observed, HB 281 holds the general public to the same high standard to which liquor establishments are held. Relaying that 30 other states currently have similar liability provisions in law, he opined that although such laws alone do not eliminate underage drinking or access to alcohol, they do help deter adults from furnishing alcohol to minors. He posited that passage of HB 281 would send a message that "we do not want our kids to have alcohol," and would provide civil recourse for victims' families. Number 0325 PAMELA WATTS, Executive Director, Governor's Advisory Board on Alcoholism and Drug Abuse ("Advisory Board"), Office of the Commissioner, Department of Health and Social Services (DHSS), spoke in support of HB 281. She said that the Advisory Board appreciates Representative Meyer's recognition of the seriousness of underage drinking in Alaska, and of the need to hold adults who furnish alcohol to persons under 21 accountable for the damages that result from underage drinking. She noted that the Advisory Board believes that many adult Alaskans who provide alcohol to underage drinkers simply fail to realize the potential life-threatening problems associated with providing that alcohol. She opined that knowing that they might be civilly liable for any resulting damages might cause those adults to pause and reconsider before providing alcohol to underage drinkers. MS. WATTS noted that family and peers can also influence underage-drinking behavior, either actively, by explicitly discouraging use, or passively, by providing models of drinking behavior. She relayed, for example, that a Columbia University study reports that adolescents whose fathers have more than two drinks a day have a 71 percent greater risk of substance abuse. She also relayed that 95 percent of violent crime on college campuses is alcohol related and 90 percent of "college rapes" involve alcohol use by the victim and/or the assailant. She noted that suicide among Alaskan youth is a very serious problem, and that alcohol use among adolescents has been associated with considering, planning, attempting, and completing suicide. Number 0472 MS. WATTS, after acknowledging that prevention programs are working, also stated: We need your continued support and advocacy to encourage activities and initiatives that will change community standards and emphasize healthy lifestyles. We need to develop sufficient resources to meet community needs for appropriate levels of intervention and treatment for the underage population identified as having alcohol or other drug problems. But the bottom line here is that adults who provide alcohol to underage drinkers assume a heavy responsibility; this legislation makes clear what that responsibility is and the consequences associated with it. The [Governor's] Advisory Board on Alcoholism and Drug Abuse encourages your wholehearted support of this legislation. REPRESENTATIVE BERKOWITZ asked whether there is any outreach program designed to educate the public that proposals such as HB 281 are in the works. MS. WATTS said having such an outreach program would be an excellent idea, and opined that it should be part of a comprehensive prevention/education plan. In response to a question, she explained that while the Advisory Board writes the state plan for prevention and education, it is the Division of Alcoholism and Drug Abuse (DADA) that implements and oversees that plan. REPRESENTATIVE BERKOWITZ asked: "In your opinion, is that plan currently funded adequately?" MS. WATTS responded: I don't believe that we have adequate resources to get the message out to people to the extent necessary to be as effective as it could be, and we certainly also don't have adequate resources for [treatment services for underage drinkers], both on an outpatient and a residential basis. REPRESENTATIVE BERKOWITZ: "So it would be fair to say, based on what you have just told me, that if this legislature were truly interested and committed to reducing problems associated with alcohol, we would increase funding to those areas and those concerns." MS. WATTS said: "That's correct." REPRESENTATIVE MEYER mentioned that there is other legislation that would allow for a $100 fine to be assessed against everyone convicted of driving while intoxicated (DWI), with that money then going to various [law] enforcement agencies for the purpose of purchasing new equipment. Number 0708 CINDY CASHEN, Juneau Chapter, Mothers Against Drunk Driving (MADD), noted that in addition to being a member of MADD, she is also a "victim of drunk driving." She offered her condolences to the families of those killed in the aforementioned July tragedy. She explained that when a drunk driver killed her father a year ago, she had to go through the same experience, and she noted that such an experience ages a person. She opined that HB 281 will serve as a deterrent, and stated that MADD supports this bill because "we feel that there will be, in the future, people who might have been killed by drunk driving who will remain alive; we'll never know who those people are but they will have invisible wings on them, so to speak - they will still be alive" - because of the effects of HB 281. She encouraged the committee to pass HB 281 and she thanked Representative Meyer for offering it. Number 0797 DONNA GARNER, Executive Director, Victims for Justice, testified via teleconference in support of HB 281. She noted that for the victim and the victim's family, there are always casualties, whether it's from property loss, loss of life, or medical bills. She mentioned that the aftermath of such an incident as occurred last July, for example, involves years of counseling, so from a financial standpoint, victims and their families are victimized all over again. She opined that holding the offender accountable is necessary for the healing of the victim, and that HB 281 would give additional closure from the victim's point of view. She mentioned that she has teenagers of her own and, thus, has a lot of teenagers coming in and out of her home, and she has noticed that kids really do consider drinking to be a rite of passage: "You find an adult, you score, and you bring home alcohol." Therefore, she opined, it really is necessary to send the message that this activity is not going to be tolerated. REPRESENTATIVE BERKOWITZ noted that strict liability is somewhat unusual in tort law, and asked for an explanation of what it means and for a description of other possible alternatives. Number 0976 MIKE FORD, Attorney, Legislative Counsel, Legal and Research Services Division, Legislative Affairs Agency, confirmed that strict liability is unusual wit regard to tort law, and explained that what it really does is remove one of the components that must normally be shown in order to collect civil damages. By including a "strictly liable provision," in order to make someone liable for civil damages, it will not be necessary to show that he/she was negligent or that his/her actions fell below the standard of a reasonable person. In response to a question, he indicated that the fact that a person committed the act is enough [to establish liability]. He noted that there are already similar provisions in law, referring to commercial fishing offenses as an example: "If you drift into a closed area, whether you intended to or not, you're liable." CHAIR ROKEBERG asked whether the hosts of a large social gathering could be held strictly liable if underage guests consumed alcohol at that gathering. MR. FORD, in response, explained that currently, civil liability only applies to "people who are licensed," so if a person is not licensed [to distribute alcohol], then he/she can not be held civilly liable for what happens as a result of providing alcohol to another person. He added, however, that it is still a crime under AS 04.16.051 to provide alcohol to a minor. He pointed out that HB 281 would change the existing law pertaining to civil liability to say that if a person, regardless of whether he/she is a licensee, provides alcohol to a minor, then that person could be held civilly liable. So, yes, he answered, the host of social gathering could be held civilly liable under HB 281. He did note that it is not a violation of existing law to provide alcohol to one's own child. REPRESENTATIVE OGAN surmised, then, that strict liability means that it does not have to be proven that the person providing alcohol to someone underage has "a culpable mental state." He asked whether there is any insurance available such as homeowner's insurance, for example, that would protect the social host who might be held civilly liable under HB 281. MR. FORD said he did not know "what the typical homeowner's policy would do in this situation." REPRESENTATIVE MEYER pointed out that a key term in HB 281 is "knowingly", which is a fairly high standard; therefore, the host would have to know that he/she is serving alcohol to someone underage. Number 1312 MR. FORD confirmed this, both that there is a requirement of knowledge on the part of the person providing the alcohol, and that "knowingly" is a fairly high standard. REPRESENTATIVE MEYER asked whether changing the language from "strictly liable" to "civilly liable" would change the standard. MR. FORD confirmed that such a change would provide for a different standard. He elaborated: If you did that, you're going to be requiring them to show different elements in order to collect these civil damages. One of the elements they'd have to show is that the person acted below the reasonable man's standard, and the court would determine that, case by case. REPRESENTATIVE MEYER asked: "Do we really need to do something like that since we have the word 'knowingly' in the bill?" MR. FORD replied that changing it to a civil liability standard would simply be adopting a different approach. CHAIR ROKEBERG asked Mr. Ford to describe the differences in civil liability standards. MR. FORD explained: Strict liability is when negligence is not a part of the configuration of what you need to show. Once you go into negligence, you can have different forms of negligence. You can have an act that is grossly negligent; that could be your standard. In other words, to collect damages, you have to show that the act is beyond what is normally a negligent act. You could have simple negligence. There are other standards, which sometimes get lumped together; probably the highest one would be an intentional act, where you intentionally cause someone harm. Intentional, gross, simple negligence or -- well, gross - or reckless - simple negligence; those are probably the ones that are most commonly used. REPRESENTATIVE COGHILL recounted that he has been to weddings and other family gatherings where alcohol was furnished but not strictly monitored. He asked whether the host would still be held strictly liable if he/she does not maintain control over who consumes it. MR. FORD surmised that it would be up to a court to interpret such a situation, adding that he is not aware of any cases that have dealt with that particular question. He opined that one reason why the legislature, to date, has eliminated civil liability for providing alcohol - except for people who are licensed - is because of these issues. "When do you cross that line from ... providing alcohol to simply having it on your premises and someone gets access to it," he pondered. He added that he would research that issue and look for any case law pertinent to it. In response to questions, he reiterated that currently, only licensees can be civilly liable. Number 1546 REPRESENTATIVE OGAN asked if the language being added, beginning on page 1, line 13, pertains to bootleggers. MR. FORD explained that that language is simply a technical amendment. "I had to separate some language out in order to incorporate the new language; it makes no change to existing law," he added. REPRESENTATIVE BERKOWITZ noted that the first amendment he ever passed was to make bootleggers civilly liable for the cost of their prosecution, adding that to date, that provision has not been used. CHAIR ROKEBERG read a portion from the Notes to Decisions section of AS 04.21.020: Nonlicensees illegally furnishing liquor to minors. - Given the plain language of this section and the absence of convincing contrary legislative history, the court cannot by statutory interpretation construe this section to be inapplicable to nonlicensees who illegally furnish liquor to minors. Chokwak v. Worley, 912 P.2d 1248 (Alaska 1996). He asked for an interpretation of this reference to inapplicability. MR. FORD said: "What there saying is [that] they can't read a civil liability provision into law when the law says there isn't one." REPRESENTATIVE BERKOWITZ said that according to his recollection, the Chokwak case involved an [underage] plaintiff who got drunk, got in an accident and was injured, and then sued the host of the party. He asked if that case could have been pursued for civil [damages] under exiting statute. MR. FORD initially indicated that it could not but added that he would research that case for a definitive answer. CHAIR ROKEBERG noted that he shared some of the concerns expressed about the strict liability standard. REPRESENTATIVE BERKOWITZ expressed a willingness to accept a negligent standard instead, adding that he thinks it is the appropriate standard. Number 1795 CHAIR ROKEBERG announced that HB 281 would be set aside. [It was taken up again following the hearing on HJR 25 and HB 213.] HB 281 - CIVIL LIABILITY FOR PROVIDING ALCOHOL Number 0833 CHAIR ROKEBERG announced that the committee would return to the hearing on HOUSE BILL NO. 281, "An Act relating to civil liability for providing alcoholic beverages to a person under 21 years of age; and providing for an effective date." Number 0800 MATT WILLIAMS, Officer, Anchorage Police Department (APD), testified via teleconference in support of HB 281. He said that the APD feels very strongly that having this sort of recourse available to victims of alcohol-related violence is essential in helping people get through difficult situations. Providing for the same "amount of liability" for all parties, regardless of whether they are licensees, closes the loophole for private citizens who furnish alcohol to minors. He noted that the statements which he made in the House Labor and Commerce Standing Committee are still applicable, and that the APD supports passage of HB 281. REPRESENTATIVE MEYER asked Mr. Williams whether he had any indication of how often adults provide alcohol to minors. MR. WILLIAMS said: "Quite a bit. Now, ... somebody being arrested, and somebody being prosecuted, and somebody being convicted - that's another story." But almost every night, he added, there are reports of kids waiting in [liquor store] parking lots and of kids approaching adults to buy alcohol for them. It is a big problem that needs to be addressed in some manner other than the criminal realm; private citizens need to be held to a standard that makes them more accountable, he opined. In response to questions regarding public awareness, he confirmed that "word gets around," and he relayed that it already has to some extent because of public announcements made during the Justin Wollam Substation dedication. Number 0541 MARTI GREESON, Executive Director, Anchorage Chapter, Mothers Against Drunk Driving (MADD), said simply that MADD supports HB 281 as one of the tools that restores justice, and she noted that MADD is willing to work on the issue of public education. Number 0457 CATHIE MAURO testified via teleconference and noted that when she first approached Representative Halcro in August, she was very concerned because the penalty for adults who provide alcohol to minors was still a misdemeanor, even when an ensuing accident results in death or injury. She relayed that at the time, she was not sure how she felt about the concept of imposing civil liabilities for that type of offense, but added that Representative Halcro assured her that the quickest way to get peoples' attention is through "their pocket books." She explained: In going through this process - as a mother who lost her daughter, Heidi Weilbacher, in the accident July 9th, [2001] - I have come across things I have never, ever in my life thought I would come across as far as the expenses of just incredible stuff. There's ... the funeral expenses: the funeral home, the cemetery, the church, the flowers. And then to find out a month down the road, I need an estate attorney, and that's a $2,000 down payment. I'm thinking, "Why do I need an estate attorney for a 14-year-old girl that had $4.75 in her pocket?" This didn't make any sense to me, but then I found out I had to hire an insurance attorney also. This was another cost that blew me away. Then I found out that I had to run an ad in the Alaska Journal of Congress for three weeks straight about the death of my daughter, in case she owed anybody some money. That cost me another $350. It's these things that just keep cropping up that [are] just unbelievable to me. And now that the criminal has been sentenced, I will be able to get a copy of the police investigation report, which I have not been able to get until sentencing, ... [and] which was done just a little bit ago. ... For that report, it's going to cost me $135. And this is just eight months into this; ... you see where I'm going: I (indisc.) this bill fully. And I will do anything for you [Representative Meyer], and the rest of the group, to make this happen. I appreciate you waiting on us today, and your time and effort on this. Thank you. Number 0212 REPRESENTATIVE MEYER told Ms. Mauro that the committee appreciates her testimony on this issue. MS. MAURO thanked Representative Meyer for his support and encouragement. CHAIR ROKEBERG noted that seven members of the Wollam family were observing the meeting from the Anchorage Legislative Information Office (LIO), and he extended the committee's condolences to the Wollam family for their loss. He also said: Hopefully, the actions of the legislature and the people of the state of Alaska will reinforce their feelings that people care up here, and are seeking to right, as much as we can, the wrongs that have been foisted on them, and endeavor to keep other people from suffering as much as they have. REPRESENTATIVE BERKOWITZ, in response to questions, said he would like to work with the sponsor to see if they could find a way of addressing the issues raised. REPRESENTATIVE MEYER asked if it would be possible to change the standard from strictly liable to just [simple liability]. TAPE 02-20, SIDE A Number 0001 MIKE FORD, Attorney, Legislative Counsel, Legal and Research Services Division, Legislative Affairs Agency, opined that it would be possible to craft HB 281 in such a way as to retain strict liability for licensees while providing for a negligent standard of civil liability for nonlicensees. He also said it would be possible to retain "knowingly" with such a change. He surmised that one of the prime reasons for this legislation is deterrence; "You want to deter people from giving alcohol to minors, and under either standard I think you would achieve that." Strict liability is usually reserved for only those things that have great social consequences, he explained. He referred to the example of an oil spill: "If you spill oil in our waters, you're liable whether you intended to do so or not, and that's an example of something that has grave consequences to it, so we're just not even going to worry about your intent." He added, however, that "because the existing rule is no civil liability for nonlicensees," by going to a negligent standard, another exception is created, which, he posited, would deter people from providing alcohol to minors. CHAIR ROKEBERG remarked, however, that the "elements of proof and so forth" would change significantly if the standard were changed to negligence. MR. FORD agreed. CHAIR ROKEBERG surmised, then, that if the defendant had a reasonable excuse, he/she might not be found negligent, because that would be harder to prove, whereas with a strict liability standard, such an excuse would not make any difference. MR. FORD agreed. He also pointed out that by adopting even a negligent standard of civil liability for nonlicensees, it is more than is currently provided for in statute. He surmised that the question before the committee is whether to adopt a higher standard or a lower standard. REPRESENTATIVE OGAN asked whether, under civil law, "knowingly" can be proven simply by a preponderance of the evidence, which, he opined, is a lower standard than under criminal law. MR. FORD clarified that there are two parts to "this." One is, what does knowingly mean; there is a definition of knowingly in the statute. "But as to how you show that - correct - it's a preponderance issue"; it's not beyond a reasonable doubt as is required under criminal law, he added. CHAIR ROKEBERG asked whether the changes proposed by HB 281 would still fall under Title 4 if the standard were changed to negligent. MR. FORD said it would because Title 4 pertains to alcohol and crimes involving alcohol. Number 0429 REPRESENTATIVE MEYER, referring again to the example of a family social gathering, reiterated that the key word is "knowingly". Adults at a party should be held liable if they knowingly allow access to alcohol or give alcohol to underage guests who then leave the gathering and cause death, injury, or damage to property, he opined. CHAIR ROKEBERG surmised that the adults, by allowing access, would be held negligent for failing to monitor the alcohol. REPRESENTATIVE OGAN said he supports the intent of the sponsor, and suggested that if HB 281 were held over, a solution to the question of which standard to use could be arrived at expeditiously. REPRESENTATIVE COGHILL opined that "strictly liable" gives no room for motive and yet "knowingly" is included in the language. CHAIR ROKEBERG noted that he would like to hear from some personal injury attorneys regarding this issue. REPRESENTATIVE JAMES noted that she has concerns about the tendency to blame someone for any ensuing tragedy but not hold that person responsible if nothing bad results from his/her actions. REPRESENTATIVE MEYER said that while his original intention was to hold the general public to the same high standard as licensees, he had not yet checked into the issue of liability insurance. Number 0790 CHAIR ROKEBERG announced that HB 281 would be held over, and suggested that the sponsor consult some personal injury attorneys on the issues of standards and personal liability insurance.
| Document Name | Date/Time | Subjects |
|---|