02/11/2006 10:00 AM House JUDICIARY
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| += | HB 373 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 11, 2006
10:10 a.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Pete Kott
Representative Peggy Wilson
Representative Les Gara (via teleconference)
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 373
"An Act relating to the manufacture and transportation of
alcoholic beverages; relating to forfeitures of property for
violations of alcoholic beverage laws; and relating to
violations of alcoholic beverage laws."
- MOVED HB 373 OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 373
SHORT TITLE: ALCOHOL:TRANSPORT MANUFACTURE; FORFEITURE
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/17/06 (H) READ THE FIRST TIME - REFERRALS
01/17/06 (H) L&C, JUD
01/25/06 (H) L&C AT 3:15 PM CAPITOL 17
01/25/06 (H) Moved Out of Committee
01/25/06 (H) MINUTE(L&C)
01/27/06 (H) L&C RPT 4DP 3NR
01/27/06 (H) DP: LYNN, KOTT, ROKEBERG, ANDERSON;
01/27/06 (H) NR: CRAWFORD, LEDOUX, GUTTENBERG
02/06/06 (H) JUD AT 1:00 PM CAPITOL 120
02/06/06 (H) Scheduled But Not Heard
02/11/06 (H) JUD AT 10:00 AM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Spoke as the sponsor of HB 373.
MICHAEL PAWLOWSKI, Staff
to Representative Kevin Meyer
House Finance Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 373, answered
questions.
ED HARRINGTON, Captain/Commander
Alaska Bureau of Alcohol & Drug Enforcement
N Detachment
Division of Alaska State Troopers
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 373, answered
questions.
DOUGLAS B. GRIFFIN, Director
Alcoholic Beverage Control Board ("ABC Board")
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: During hearing of HB 373, answered
questions.
ANNE CARPENETI, Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: During hearing of HB 373, answered
questions.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 10:10:37 AM. Representatives
McGuire, Anderson, Coghill, Kott, Wilson, and Gara (via
teleconference) were present at the call to order.
Representative Gruenberg arrived as the meeting was in progress.
HB 373 - ALCOHOL:TRANSPORT MANUFACTURE; FORFEITURE
10:10:55 AM
CHAIR McGUIRE announced that the only order of business would be
HOUSE BILL NO. 373, "An Act relating to the manufacture and
transportation of alcoholic beverages; relating to forfeitures
of property for violations of alcoholic beverage laws; and
relating to violations of alcoholic beverage laws."
10:11:13 AM
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor of
HB 373, offered his belief that everyone is aware of the
problems that alcohol can and does cause in rural Alaska. Many
communities have adopted local options to control or ban the
importation of alcohol into the community. In 2004 Congress
formed the Alaska Rural Justice and Law Enforcement Commission
("Commission") to study the challenges facing rural Alaska.
This summer the Commission released a draft interim report,
which included recommended statute changes. Therefore, HB 373
proposes changing the forfeiture statutes to allow the state to
seize alcohol that was transported in violation of the local
option; property purchased with the proceeds of alcohol sold in
violation of the local option; and firearms that are carried,
used, or visible during the furtherance of a violation.
Furthermore, HB 373 establishes a procedure that addresses the
seizure and appeal of property. The legislation also defines
the "manufacture" of alcohol and makes the allowable quantities
of alcohol consistent in statute such that it would be 10.5
liters in the presumption section. In conclusion,
Representative Meyer opined that the changes encompassed in HB
373 will strengthen law enforcement in the fight against
alcohol.
REPRESENTATIVE ANDERSON related that the Cabaret Hotel
Restaurant & Retailer's Association (CHARR) had contacted him
regarding whether lowering the limit in Section 1(c)(1) of the
legislation places an unfair presumptive burden on individuals
when 10.5 liters is the limit that can be legally shipped.
REPRESENTATIVE MEYER deferred to his staff.
10:14:57 AM
MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House
Finance Committee, Alaska State Legislature, explained that
under current statutes a package store isn't allowed to send
more that 10.5 liters per month to an individual. However, the
[possession] limit in Section 1(c)(1) of HB 373 was lowered [to
10.5 liters]. The question, he explained, is whether an
individual with a few liters left from a prior month's order
would be placed in jeopardy for presumption [if that individual
ordered 10.5 liters of alcohol]. Mr. Pawlowski pointed out that
an individual can check his/her cupboard to determine that
he/she is in possession of less than 10.5 liters [and shouldn't
order a quantity that would, combined with what's in the
cupboard, total more than 10.5 liters]. Furthermore, this is
only of concern if an individual is charged and accused of
selling the alcoholic beverages. "It's only when you get into
the presumptive sentencing part, but it is ... a fair question
about whether or not it's an unfair burden on people for
possession," he said.
REPRESENTATIVE MEYER interjected that he is flexible on that
issue because one who has three bottles in the cupboard and
orders 10.5 liters more shouldn't be penalized. He echoed Mr.
Pawlowski's testimony that this is only an issue if the
individual is selling the alcohol. He then noted that the
Department of Law (DOL) can also respond.
10:16:50 AM
ED HARRINGTON, Captain/Commander, Alaska Bureau of Alcohol &
Drug Enforcement, N Detachment, Division of Alaska State
Troopers, Department of Public Safety (DPS), stated that he was
available for questions.
REPRESENTATIVE WILSON asked if Captain Harrington feels that HB
373 will make it easier for law enforcement and communities to
fight the illegal importation of alcohol.
CAPTAIN HARRINGTON replied yes. He noted that he was a member
of the subcommittee of the Commission, which recommended the
statutory changes [encompassed in HB 373]. He highlighted the
addition of the forfeiture laws, which he characterized as one
of the greatest deterrents for those contemplating bootlegging.
REPRESENTATIVE COGHILL inquired as to how law enforcement would
notice the difference between the 10.5 liters versus the current
12 liters.
CAPTAIN HARRINGTON explained that the concern is in regard to
the confusion caused by the 10.5 liters versus the 12 liters.
This confusion arises for law enforcement, DOL, and the citizens
at large. He relayed that the majority of the alcohol entering
local option communities are 750 milliliter bottles. Therefore,
the change from 12 liters to 10.5 liters will mean that [an
individual could [import and possess] 14 750-milliliter bottles
of distilled spirits versus the current allowance of 16 750-
milliliter bottles. Generally, when alcohol is intercepted it's
through the shipping points, whether in Anchorage or rural
communities.
REPRESENTATIVE COGHILL asked, "Does that make a difference
between a full case and a broken case?"
CAPTAIN HARRINGTON answered that he isn't sure about that, but
he offered his recollection that a full case is 12 bottles.
REPRESENTATIVE COGHILL said he was trying to determine whether
[this change] makes discovery easier or more difficult.
CAPTAIN HARRINGTON related that frequently alcohol shipments
have been repackaged into another container rather than its
original shipping cases.
REPRESENTATIVE WILSON asked if the change to 10.5 liters makes
it easier for law enforcement.
CAPTAIN HARRINGTON replied yes, but clarified that this
legislation changes the amount to 10.5 liters only for distilled
spirits. He reminded the committee that the confusion under the
current statute arises because the amount allowed for
importation is 10.5 liters while for the presumptive amount is
12 liters.
10:22:36 AM
DOUGLAS B. GRIFFIN, Director, Alcoholic Beverage Control Board
("ABC Board"), Department of Public Safety (DPS), relayed that
he is available for questions and concurred with Captain
Harrington's comments.
REPRESENTATIVE COGHILL asked Captain Harrington whether he views
forfeiture [as specified under the bill] as being more complex
or clearer, and inquired as to the practical implications of
storage.
CAPTAIN HARRINGTON responded that this legislation will make it
a bit easier for law enforcement. Currently, property is seized
at the time of the contact or arrest and it's stored until the
case is adjudicated through the court in the criminal case. The
aforementioned takes six to nine months, and sometimes even a
year to complete the case. For example, in the past year in
Kotzebue one airplane and many outboard motors, snow machines,
and vehicles have been seized and stored. In Kotzebue there is
limited storage capacity and thus HB 373 will allow a case to be
brought before the court in a civil action, which tends to be a
much quicker procedure and thus the property wouldn't have to be
stored as long.
REPRESENTATIVE COGHILL asked whether the notification
requirements make any changes practically.
CAPTAIN HARRINGTON surmised that it will probably be a bit
burdensome for DOL in regard to the forfeiture of the property
civilly versus through a criminal trial. In further response to
Representative Coghill, Captain Harrington opined that allowing
forfeiture through a civil proceeding will result in the matter
being before the court quicker. He pointed out that practically
the same language exists in the drug statutes upon which the
language in HB 373 is modeled. Although the civil forfeiture in
relation to drugs hasn't been used that often, when it has been
used it has been successful.
10:28:50 AM
MR. GRIFFIN, in response to the question as to what occurs
currently with regard to licensee complaints, reiterated that
currently a package store can ship up to 10.5 liters [to an
individual] located in a community with a local option.
Therefore, [HB 373] doesn't change anything for the package
stores. He opined that there aren't big problems with the
package stores, although ordering from more than one package
store in a month creates a problem. If it was found that the
package stores weren't following the requirements, he suggested
that they could be prohibited from being able to participate in
that lucrative business. The larges shipper is Brown Jug, which
he characterized as a good corporate citizen.
REPRESENTATIVE COGHILL surmised then that there haven't been any
complaints to the ABC Board. He then surmised that the question
is how many streams [of shipments of alcohol] can come into a
village and whether this legislation will make some headway.
REPRESENTATIVE ANDERSON referred to the Alaska State Troopers
Alaska Bureau of Alcohol and Drug Enforcement "2004 Annual Drug
Report", which is included in the committee packet. Page 7 of
that report outlines the problems related to alcohol, especially
as seen in rural Alaska. Page 8 of the report relates the high
cost of alcohol in rural Alaska versus urban Alaska,
particularly in relation to bootlegging operations.
Representative Anderson opined that perhaps HB 373 is a small
step in reducing bootlegging. He suggested that one might find
more violations from the State Troopers than the ABC Board.
CHAIR McGUIRE recalled an incident in which an individual in a
rural area created home brew, which she indicated suggested that
the more the state cracks down on bootlegging, the more creative
people get in evading the law.
CAPTAIN HARRINGTON stated that the [Alaska State Troopers] are
very aggressive about any alcohol in local option communities.
The troopers in the western part of Alaska are constantly
addressing the home brew issue, which sometimes does seem to be
a larger problem when there is success in eradicating the
importation of alcohol and thus there's an increase in the
manufacturing of home brew alcohol. Moreover, successes in the
eradication of alcohol also result in increases in the price of
alcohol. Captain Harrington related that the troopers actively
pursue homebrewed alcohol and analyze samples to show that it
does contain alcohol.
10:36:46 AM
REPRESENTATIVE GARA related his understanding that all of the
locals in dry and damp communities know who bootlegs.
Therefore, he questioned whether HB 373 will really help or
whether there is a larger problem that keeps law enforcement
from prosecuting in damp and dry communities.
CAPTAIN HARRINGTON agreed with Representative Gara that most
residents of a community know who is dealing in drugs and
alcohol. However, there are many issues surrounding the concept
of citizens coming forward to relate such information to the
troopers. Currently, there is some award money available
through a federal grant for information to help intercept the
drugs and alcohol entering these communities. Still, Captain
Harrington opined that HB 373 will help law enforcement in its
effort to reduce the flow of alcohol into western Alaska.
Although HB 373 isn't the magic bullet, it will help, he opined.
REPRESENTATIVE GARA related his assumption that if residents of
a community know who the bootleggers are, then so too would
local law enforcement. Therefore, he inquired as to what makes
it difficult to close a bootleg operation.
CAPTAIN HARRINGTON offered an example in which a bootlegger in
Nome bootlegs via snow machine or boat. However, that
bootlegger only sells to a select clientele in the area and law
enforcement hasn't been successful in getting a resident of the
area to cooperate in an undercover capacity. The situation
isn't like a traditional drug or alcohol investigation in which
a confidential informant can be placed in the community because
generally a stranger in a small village would stand out.
REPRESENTATIVE COGHILL referred to the forfeiture provision of
HB 373 on page 3 where the language "or items of value purchased
from the proceeds" is inserted. He inquired as to how difficult
it will be to determine what items of value were purchased from
the proceeds of [illegal alcohol sales].
CAPTAIN HARRINGTON acknowledged that it can be a difficult
issue, although frequently there is enough evidence gathered
from statements of those involved to determine what property was
purchased with the proceeds. He specified that often there is a
statement from the suspect or a family member that the item was
purchased with the proceeds from the alcohol sales.
10:41:59 AM
ANNE CARPENETI, Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law (DOL),
related that the DOL supports HB 373. She echoed earlier
sentiment that although HB 373 won't solve all the problems,
every little bit helps.
REPRESENTATIVE WILSON referred to page 3, line 23, which read:
"If a claim and answer is not filed within the time specified,
the property described in the state's allegation must be ordered
forfeited to the state without further proceedings or showings."
She inquired as to what happens if the individual charged with
the violation is found not guilty.
MS. CARPENETI specified that the language on page 3, line 23, is
describing civil forfeiture. She explained that there are a
couple of ways in statute to forfeit property used in
furtherance of a crime, such as in connection with a criminal
prosecution in which the individual is convicted, or [the state]
can proceed against the item itself in a civil proceeding. The
burden of proof is different for each. Most often a criminal
proceeding is utilized. She pointed out that even in a
situation wherein an individual is not convicted but is
connected with the property, the state still has the burden of
proving the behavior by a preponderance of evidence.
CAPTAIN HARRINGTON, in response to Chair McGuire, confirmed that
the alcohol seized is destroyed.
10:45:06 AM
REPRESENTATIVE GRUENBERG surmised that this legislation links
[possession of alcohol] to the illegal transportation [of
alcohol] under AS 04.16.125. However, the forfeiture statute,
except as its being amended in Section 2(1)(a), doesn't seem to
be tied to the transportation statute. The only reference to
the illegal transportation [of alcohol] is on page 2, line 13,
which only allows the forfeiture of the alcoholic beverages.
Therefore, he questioned why AS 04.16.125 (1)-(6) isn't
referenced in paragraph (6), which refers to the monies,
securities, et cetera that are used in financial transactions.
MS. CARPENETI relayed that AS 04.16.125 (1)-(6) is just a list
of all the things that can be forfeited.
REPRESENTATIVE GRUENBERG pointed out that paragraph (6) only
references the activities prohibited under AS 04.11.010 or in
violation of a local option adopted under AS 04.11.491.
Therefore, he inquired as to why paragraph (c) doesn't also
include violation of AS 04.16.125, which refers to the illegal
transportation [of alcoholic beverages].
MS. CARPENETI suggested that one would have to review AS
04.16.220(d) that cross references items shipped in violation of
the local options. She pointed out that it's added to HB 373 on
page 4, line 2.
REPRESENTATIVE GRUENBERG noted that the language [on page 4,
line 2 comes into play] only upon conviction. He inquired as to
what would occur with a separate civil action for forfeiture of
a sum of money when illegal transportation is involved as well.
MS. CARPENETI explained that the language in Section 4(d)(1) is
amended to reference "AS 04.16.125", which refers to illegal
sending. The next provision, Section 4(d)(2), refers to an in
rem proceeding and all property subject to forfeiture under (a)
of AS 04.16.220. Therefore, it refers back to AS
04.16.220(a)(6), which is money. Ms. Carpeneti surmised that
Representative Gruenberg is questioning why the language doesn't
simply specify [that property forfeiture] can occur for any
violation of this chapter and paragraph (c).
REPRESENTATIVE GRUENBERG concurred, adding that otherwise the
court has to move through a labyrinth.
MS. CARPENETI said that she didn't see a problem with the
language saying "any violation of this chapter," although she
indicated that it's probably covered under AS 04.11.010 and AS
04.11.491.
10:51:01 AM
REPRESENTATIVE GRUENBERG referred to the language "items of
value purchased from the proceeds" on page 3, line 3, whereas
the language on page 3, line 2, refers to "things of value". He
opined that the language seems to imply tangible property. He
then asked if intangible property, such as a copyright, would be
considered a thing or an item.
MS. CARPENETI reminded the committee that the language is taken
directly from the drug forfeiture statute, which has seemed to
have been successful in its use. She opined that a copyright
would seem as though it would be an item of value.
REPRESENTATIVE GRUENBERG referred to page 3, line 4, and the
existing language "derived from". He opined that the
aforementioned language may be fairly narrow because there could
be a financial transaction that could be associated but not
derived from [prohibited activities]. He asked if the language
should be broadened so as not to enter into a semantic game
regarding whether a financial transaction is associated with or
derived from [prohibited activities].
10:54:40 AM
CHAIR McGUIRE asked whether there has been an issue in which law
enforcement has faced a difficult threshold in obtaining the
things of value derived from the [prohibited] activity.
REPRESENTATIVE GRUENBERG interjected that he was interested if
such has occurred in another state or jurisdiction.
CAPTAIN HARRINGTON said that he couldn't recall any specific
issues relating to Representative Gruenberg's concern.
REPRESENTATIVE GRUENBERG requested that DOL and DPS give
consideration as to whether the language ought to be broadened.
MS. CARPENETI agreed to do so, but highlighted that the term
"derived from" is a term that works. She also highlighted that
the language must remain constitutional.
10:57:06 AM
REPRESENTATIVE GRUENBERG referred to the language, "firearm that
is visible or carried during or used in furtherance of a
violation of this title" [located on page 3, line 6], and said
that he didn't want a firearm that is merely visible to be
seized in [the raid] of a large premise when it didn't have
anything to do with the activity.
MS. CARPENETI informed the committee that this language is also
from the drug forfeiture provisions. The state, she opined,
would definitely have to show a nexus.
REPRESENTATIVE WILSON inquired as to what constitutes being
"visible".
CHAIR McGUIRE noted that the bill also refers to the firearm
being carried during or used in the furtherance of a violation
of this title. She speculated that use of the term "visible" is
probably trying to address those situations in which proof is
involved. Therefore, if the firearm is visible, then it
wouldn't necessarily have to be proven that the firearm was
carried in furtherance of the crime.
REPRESENTATIVE GRUENBERG pointed out that this would come up in
litigation through a civil forfeiture question. He requested
that this language be researched further.
MS. CARPENETI noted that when firearms are visible during the
furtherance of a crime, situations become more dangerous.
REPRESENTATIVE GRUENBERG agreed, and clarified that the question
is whether [the language] is underinclusive. He asked if the
desire is to [seize firearms] when they aren't visible.
MS. CARPENETI opined that the aforementioned could occur under
the "carried" and "used" language.
11:01:43 AM
REPRESENTATIVE GRUENBERG referred to page 3, line 24, and
suggested that the term "must" ought to be "may" because it's
left to the court to decide whether to order the property to be
forfeited.
MS. CARPENETI suggested that the rationale is that if no one
answers the complaint, then there's no entry.
REPRESENTATIVE GRUENBERG opined that even in a default situation
the court has the discretion to enter a judgment; for example,
if the court feels that there hasn't been a prima facie case.
Representative Gruenberg clarified that this is a question of
the order, whether there's a forfeiture or not. He asked
whether it's envisioned that there will be a hearing or the
clerk allowed to enter a default judgment.
MS. CARPENETI related her understanding that if no one claims
the property, there would be a summary forfeiture, while if
someone does claim the property, there would be a hearing.
REPRESENTATIVE GRUENBERG suggested then that Civil Rule 55(b)(1)
would need to be amended. He explained that Civil Rule 55 only
allows a default judgment by the clerk if it's a money judgment.
MS. CARPENETI agreed to look at that as well.
REPRESENTATIVE GRUENBERG then referred to page 3, lines 25-28,
which he opined seems to place the matter back into the court's
purview rather than the clerk's purview.
MS. CARPENETI interjected that the [language on page 3, lines
25-28] speaks to the situation in which someone answers the
notice.
REPRESENTATIVE GRUENBERG drew the committee's attention to the
definition of "manufacture" located on page 4 of HB 373. He
asked if there are ways to manufacture alcohol without sugar.
CAPTAIN HARRINGTON related that the definition was added at the
request of the alcohol prosecutor for DOL because she was having
difficulty giving jury instructions for the manufacture of
alcohol. He further related that to his knowledge there is no
other way to manufacture home brew without sugar.
11:07:03 AM
REPRESENTATIVE GRUENBERG suggested a conceptual amendment to
page 3, line 4, such that the language "AS 04.11.010 or in
violation of a local option adopted under AS 04.11.491" would be
replaced with "this title".
MS. CARPENETI said that she would like to contemplate that
because there are many things that don't relate to the sale of
alcohol.
CHAIR McGUIRE, upon determining there were no further questions
or witnesses, [closed public testimony].
11:08:39 AM
REPRESENTATIVE ANDERSON moved to report HB 373 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 373 was reported from the
House Judiciary Standing Committee.
ADJOURNMENT
11:09:05 AM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 11:09 a.m.
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