02/23/2009 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| SB85 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 85 | TELECONFERENCED | |
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 23, 2009
1:33 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Kim Elton
Senator Gene Therriault
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
SENATE BILL NO. 85
"An Act relating to limitations on possessing, sending,
shipping, transporting, or bringing alcoholic beverages to a
local option area and to penalties for violations of those
limitations; relating to probation for minor consuming or in
possession or control of alcoholic beverages; relating to civil
fines for liquor licensees whose agents or employees furnish
alcoholic beverages to a person under 21 years of age; and
providing for an effective date."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 85
SHORT TITLE: ALCOHOL: LOCAL OPTION/LICENSING/MINORS
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
01/26/09 (S) READ THE FIRST TIME - REFERRALS
01/26/09 (S) CRA, JUD, FIN
02/03/09 (S) CRA AT 3:30 PM BELTZ 211
02/03/09 (S) Heard & Held
02/03/09 (S) MINUTE(CRA)
02/17/09 (S) CRA AT 3:30 PM BELTZ 211
02/17/09 (S) Moved CSSB 85(CRA) Out of Committee
02/17/09 (S) MINUTE(CRA)
02/19/09 (S) CRA RPT CS 2DP 2NR NEW TITLE
02/19/09 (S) DP: MENARD, KOOKESH
02/19/09 (S) NR: OLSON, FRENCH
02/23/09 (S) JUD AT 3:30 PM BELTZ 211
WITNESS REGISTER
ANNE CARPENETI, Assistant Attorney General
Criminal Division
Department of Law
Juneau, AK
POSITION STATEMENT: Presented SB 85.
MICHELLE DEWITT, Director
Tundra Women's Coalition
Bethel, AK
POSITION STATEMENT: Testified in support for SB 85.
JODY MALUF, representing herself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
DAVE TRANTHAM, representing himself
Bethel, AK
POSITION STATEMENT: Stated opposition to SB 85.
THOMAS HAWKINS, representing himself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
KEVIN CARTER, representing himself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
ERIC MIDDLEBROOK, representing himself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
GARY VANASSE, representing himself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
THOR WILLIAMS, representing himself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
OLIE OLSON, representing himself
Bethel, AK
POSITION STATEMENT: Testified in opposition to SB 85.
WILSON JUSTIN, Vice President of Health
Mount Sanford Tribal Consortium and
Alaska Rural Justice and
Law Enforcement Commission
Chistochina Village, AK
POSITION STATEMENT: Testified in support of SB 85.
CEZARY NACZYNSKI, representing herself
Bethel, AK
POSITION STATEMENT: Testified he strongly opposes SB 85.
LARRY HACKENMILLER, representing himself
Fairbanks, AK
POSITION STATEMENT: Testified in opposition to SB 85.
DARWIN BIWER, Chair
Statewide CHARR
Anchorage, AK
POSITION STATEMENT: Testified in opposition to SB 85.
DIANE CASTO, Manager
Prevention and Early Intervention Services
Division of Behavioral Health
Department of Health and Social Services (DHSS)
POSITION STATEMENT: Testified that DHSS supports SB 85.
RODNEY DIAL, Lieutenant
Department of Public Safety (DPS)
Ketchikan, AK
POSITION STATEMENT: Testified that DPS supports SB 85.
ACTION NARRATIVE
1:33:12 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:33 p.m. Present at the call to
order were Senators Elton, Wielechowski, Therriault and French.
SB 85-ALCOHOL: LOCAL OPTION/LICENSING/MINORS
1:33:22 PM
CHAIR FRENCH announced the consideration of SB 85. [Before the
committee was CSSB 85(CRA).]
ANNE CARPENETI, Criminal Division, Department of Law (DOL), said
the Governor introduced SB 85. Providing some history, she
explained that the local option laws were adopted in the 1980s
and at that time amounts were set for various purposes of the
local option law. One purpose was to establish that possession
of a larger amount would be a presumption of possession for sale
if a person were prosecuted for bootlegging.
CHAIR FRENCH asked if the state was essentially wet before the
local option laws, meaning that just one set of alcohol laws
applied statewide.
MS. CARPENETI replied she believes so, but she'll double check.
The amounts have stayed essentially the same over the years.
Under current law the amounts are set at 10.5 liters of hard
alcohol, 24 liters of wine and 12 gallons of malt liquor. If a
person is in possession of more than these amounts and there is
other evidence, that would be an evidentiary presumption that
the possession was for sale. It's rebuttable and doesn't mean
that a person who possesses more is going to be prosecuted for
bootlegging.
CHAIR FRENCH noted that discussion in the previous committee
focused on those numbers as some sort of barrier.
MS. CARPENETI said it's not a barrier. These are amounts that
they said in the 1980s could be used as an evidentiary
presumption that the possession was for purposes of sale if
somebody was being prosecuted for bootlegging.
1:35:52 PM
CHAIR FRENCH observed that a person who has a wine cellar with
200 bottles of wine probably doesn't have a bootlegging
operation, but someone who has 15 cases of whiskey boxed up and
ready to go somewhere is an entirely different matter.
MS. CARPENETI agreed. These amounts are also used for other
things in statute. For example, if a person is convicted of
bootlegging more than 10.5 liters of hard alcohol, that would be
the threshold amount between a misdemeanor and a felony
prosecution for bootlegging. She elaborated that selling 12
liters of hard liquor would be a felony bootlegging prosecution.
Over the years people have concluded that the amounts are too
high. That was a consideration that the Rural Justice Commission
had; the Representative from Bethel expressed the same concern
in the House Finance Committee; last year's crime bill included
several of the alcohol provisions; and the House Judiciary
Committee had discussions about reducing the amounts. In
response to those considerations, the Governor introduced SB 85
to reduce the amounts. That caused some people who live in rural
areas and like to shop in bulk some concern. Thus a committee
substitute (CS) was drafted. It does not address the amounts
that give rise to the presumption of sale or the threshold
between felony and misdemeanor. It just addresses the time.
Under the CS every two months a package store can send the
following amounts to a person living in a damp local option
community: 10.5 liters of hard liquor, 24 liters of wine and 12
gallons of malt liquor. Previously these amounts could be sent
every month.
1:39:34 PM
Section 2 also adopts civil penalties for licensees whose
employees or agents are convicted of furnishing alcohol to a
minor while on the licensee's premises. Most of the licensees in
the state are conscientious, but some are not as serious so this
provides consequences. On the first conviction the Alcoholic
Beverage Control Board (ABC) would send the licensee a letter of
warning explaining the consequences for additional convictions.
The second and subsequent convictions would bring a $1,000 civil
fine to the licensee whose employee was convicted of furnishing
alcohol to a minor on the licensed premises.
Sections 3 and 4 correct minor drafting errors in the
legislation that was adopted last year. She explained that the
minor consuming law has a three-step process to accommodate
first time, repeat and habitual offences. In 2001 the
Legislature adopted a scheme that any minor convicted of minor
consuming would be on probation until they were 21 years old.
Last year they changed the probation period to one year, but the
drafting caused some magistrates concern that the law wasn't
sufficiently specific to allow movement from step one to step
two to step three. SB 85 clarifies that "step one is the first,
step two is the second and the consequences for repeat apply to
anybody who has a conviction for their first offense, and the
consequences for habitual apply to all minors who have had two
incidents of minor consuming in their lives."
1:42:27 PM
CHAIR FRENCH noted that Section 3 is for the repeat offender and
Section 4 is for the habitual offender.
MS. CARPENETI agreed. SB 85 also fixes an inconsistency that
resulted when the Legislature adopted mandatory minimum
sentences for people convicted of bootlegging. The intention was
that those were to be the same as the mandatory minimum
penalties for drunk drivers. However, there is a different
definition for "previous conviction" in the drunk driving law
than in the bootlegging law. Section 5 of the bill corrects that
inconsistency.
MS. CARPENETI characterized Sections 3, 4, and 5 as clean up
provisions. She recapped that the first new provision relates to
the amounts of alcohol that a licensee can send in response to a
written order in a two month period, and the second relates to
the civil penalties for licensees.
1:44:01 PM
SENATOR ELTON said he continues to struggle with the amounts. He
questioned whether someone would be prohibited from ordering
from more than one package store to get a second or third
shipment.
MS. CARPENETI replied that wouldn't happen because of the law
the Legislature passed several years ago. It requires licensees
who send alcohol to local option communities in response to a
written order to check a database to see whether the individual
has made other orders.
SENATOR ELTON commented that squeezing a balloon in one spot
causes a bulge in another. Four adults living in a household
could order 42 liters of hard alcohol and he wonders if this
solution may encourage other people to get in on illegal profits
that accrue because of bootlegging.
MS. CARPENETI said there isn't a magic solution to bootlegging.
Over the years there have been a number of solutions and the
database was particularly helpful. Under current law, four
adults in a family could order four times the amounts outlined
above. This bill doesn't change that
SENATOR ELTON said he continues to struggle with the amounts and
he isn't sure he'd want to be a neighbor of someone who consumes
that much alcohol in two months. The only reason he could think
of for ordering that much would be to sell it or give it away.
"That's a lot of booze."
MS. CARPENETI pointed out that under current law every adult in
a damp community can order that much every month. SB 85 changes
that to every two months.
CHAIR FRENCH asked testifiers to limit their comments to three
minutes.
1:48:18 PM
MICHELLE DEWITT, Director, Tundra Women's Coalition, Bethel,
stated that she has reviewed the CRA committee substitute and
she appreciates the state looking at ways to address the issue
of alcohol abuse in rural Alaska. She serves victims of domestic
violence and sexual assault and from her perspective alcohol
abuse is a major factor in crime. She realizes that there are
different perspectives on the bill, but she appreciates that the
state is looking at efforts to make a difference in regard to
domestic violence and sexual assault.
1:50:03 PM
SENATOR THERRIAULT noted that his staff provided a sheet
indicating what the liter amounts break down to in terms of 8
ounce cup servings. From his perspective it's a staggering
amount of alcohol on a daily basis. "So having it be every two
months knocks it down to a little bit more reasonable level," he
said.
CHAIR FRENCH thanked him for the work and said he may refine the
measures further.
1:51:53 PM
JODY MALUF, representing herself from Bethel, said her husband
is a long-time teacher at the high school and she is well aware
of what alcohol can do to a family and a community. However, SB
85 treats everyone who resides in a local option community as a
second-class citizen. It combines ridiculous limitations on
liquor with punishments for furnishing alcohol to minors. She
questioned why the drafters would include protections for
minors, which everyone wants, with required punishments for
"innocent law abiding citizens." It forces legislators to think
that passing the bill equates to having family values. She
questioned why their former Representative requested the
legislation from the Governor and why it is being fast-tracked
at the Governor's request. "There is an agenda here," she
asserted.
CHAIR FRENCH assured her that the bill would be thoroughly
considered as it goes through the system.
1:54:18 PM
DAVE TRANTHAM, representing himself and his family from Bethel,
said SB 85 will not serve the intended purpose and has
unintended consequences. Bootlegging will continue regardless of
the limits that are set. The citizens of Bethel voted for local
option because it was the best option, but since then it's been
tweaked many times. The initial understanding was that the local
people had some say. That is no longer the case and local
citizens have no control. "The Legislature is controlling
everything." He believes that the community will petition and
opt out of local option within a week of this bill passing. The
community council meets tomorrow to consider a resolution
opposing SB 85. Education is the answer. It's time to teach the
people in Bethel how to drink and how to stop binge drinking.
Liquor is one of the big economic drivers in Bethel and accounts
for jobs in healthcare and government. SB 85 won't serve the
people of Bethel.
1:59:51 PM
THOMAS HAWKINS, representing himself from Bethel, said the
community voted for local option but they never voted for
limits. The Legislature and Juneau is trying to override our
local option, he said.
SENATOR ELTON pointed out that Juneau has nothing to do with any
of the changes other than his single vote. The community is not
doing this, it is a group of legislators who operate by majority
vote.
MR. HAWKINS said he didn't intend to single out the community of
Juneau. He did intend to single out the Legislature.
2:02:16 PM
KEVIN CARTER, representing himself from Bethel, said he wants to
reiterate what Mr. Hawkins and Mr. Trantham said. "It's
depressing to know that we're being told by people that don't
live in the Bush and don't know how things work out here, what
we can and can't do and how much of it we can do." This won't
solve the problems here because bootleggers will find a way to
continue. This will simply drive the prices of bootlegged
alcohol even higher. The community swallowed the database, but
we won't swallow this, he said.
CHAIR FRENCH said the comments today have prompted him to look
into how close the recent votes have been in Bethel.
2:05:14 PM
ERIC MIDDLEBROOK, representing himself from Bethel, said the
most recent vote was to pass a city ordinance allowing only the
citizens of Bethel to vote on whether or not to allow a delivery
site and to say that the city council did not have authority to
establish a centralized delivery site for alcohol. The vote was
85 percent in favor of retaining voter control on that issue.
Most local option votes asking about a change to either wet
status or dry status have been turned down 2:1. Bethel citizens
are adamant about maintaining the status quo and this bill has
been a wake-up call. The state has taken a number of steps to
take control away from the residents. "We just feel that we've
been backed into a corner and we have no other options here," he
said.
2:07:44 PM
GARY VANASSE, representing himself from Bethel, stated
opposition to SB 85. In the 24 years he has lived in Bethel, the
residents have voted on local option status many times. "The
result of that vote every single time has been to retain a damp
status." He feels that the community should maintain its damp
status, but this bill could result in the community having a
local option election to create a wet status. Already there has
been an increase in homebrew operations and drug use and he
worries that will escalate. He believes that money should be
spent on undercover investigations to round up illegal
activities such as bootlegging and drug dealing. "We haven't
seen that here in Bethel in quite some time," he said.
The alcohol limits that were set in the late 1980s haven't done
much to solve alcohol-related problems in the Bethel region and
he doesn't believe the new limits will have the desired effect
either. "Lets treat the disease, not the symptom." Let the
citizens of Bethel make their own decisions and don't get over
focused on amounts, he said.
2:13:54 PM
THOR WILLIAMS, representing himself from Bethel, thanked the
members for doing the business of the state. A point he would
like to make is that there has been a rise in numbers of
community members who are ordering alcohol now that there is an
electronic delivery site within the community. That basically
means that people are ordering alcohol when they never did
before. He reminded members that Bethel residents pay freight on
alcohol when it is shipped to Anchorage and again when it is
shipped to Bethel. That is a large cost and the consumer saves
money if they buy in bulk. Another thing to realize is that
Bethel could potentially lose revenue because they gain fees on
alcohol purchased in Anchorage. That money is used to provide
services in the community so limiting the amount of alcohol that
could be delivered would amount to a cut in revenue for the
community. That could cause loss of employment for city
employees. Opting out of local option is an up-coming issue and
he has asked the ABC board to talk to the community council on
March 10 about what that means. It could be that it would cause
more problems than it's worth. The community simply wants to be
left alone.
MR. WILLIAMS asked if the communities of Anchorage, Fairbanks
and Juneau would like to be told how much alcohol they should or
should not drink in a month. Bethel has problems with drugs and
alcohol, but these other communities do as well. This isn't the
solution and he would like the committee to break up SB 85 to
address the different issues in the bill individually.
2:17:23 PM
OLIE OLSON, representing himself, said he has lived in Bethel
for 30 years and he agrees with the previous testimony. He wants
to be treated like any other citizen of Alaska is treated. He
doesn't think SB 85 will help with the bootlegging problem, but
it will make it more expensive.
2:18:29 PM
WILSON JUSTIN, Vice President of Health, Mount Sanford Tribal
Consortium, Chistochina Village, said he also serves on the
Alaska Rural Justice and Law Enforcement Commission. His remarks
primarily target Section 1 of SB 85 and he supports it
unilaterally. Over many years he has dealt with alcohol and
substance abuse issues in a number of forums including prisons,
the legal arena, the courts and health. Health care is a billion
dollar industry in Alaska and between two-thirds and three-
fourths of the cost of delivering health care is related to
alcohol and substance abuse. That's astonishing but it's a given
in the health industry. He thanked the committee and restated
his support for SB 85.
CHAIR FRENCH thanked him for his contributions to the state.
2:20:47 PM
CEZARY NACZYNSKI, representing herself from Bethel, said he
strongly opposes SB 85. The bill isn't only about alcohol, it's
about who can make decisions for a community. He supports strong
punishment for bootlegging and he supports the freedom of
choice. "Just let me decide what I'm going to eat today and what
I'm going to drink and how much I'm going to drink." He came to
this country to enjoy the freedoms and he would like the freedom
to choose.
2:24:02 PM
LARRY HACKENMILLER, representing himself, Fairbanks, said he is
here to testify against SB 85. In particular he opposes the
$1,000 penalty as a consequence for a licensee. Basically it
says that after all the training an employee receives, the owner
will be fined $1,000, without due process, for the second
conviction of a bartender. "Even with the training that we have,
they make a mistake and yet we are now held accountable," he
said. The ABC board has the authority under Title IV to make
decisions with regard to penalties so it's uncalled for to give
him a $1,000 fine as outlined in the bill.
MR. HACKENMILLER said this is supposed to a standard for
bootlegging; it isn't supposed to solve the social problems
alcohol causes, but he keeps hearing people say it will help.
Dry villages have zero limits for alcohol and they still have
problems. Bethel is basically saying it wants to handle its own
problems. He disagrees with DOL saying that that it's a
rebuttable presumption because discovering over 10.5 liters of
whiskey is at the bootlegging level. The reason the half liter
is there is because someone might have alcohol left over when
they ordered more. "You're going to make criminals out of people
that are not involved in a criminal activity," he said.
MR. HACKENMILLER cautioned the committee to stay on point. This
is a bootlegging bill and it isn't supposed to address social
problems. Corrective language for underage consumption is
covered in another bill so this bill needs go no further. The
$1,000 penalty for a licensee provides no due process. He is
guilty until proven innocent and it's the same for bootleggers.
"When you find 12 bottles of liters in my house, I have to prove
my innocence. That's my rebuttal but I still have to do that. If
it's a criminal crime it should be criminal, but a civil penalty
of $1,000 [is] way too out of line and I'm not given a chance to
defend myself," he said.
CHAIR FRENCH observed that he would pity the trooper and the DA
who tried to bring a slightly-over-the-limit bootlegging case
against a Bethel resident because the citizens would look at
that with a jaundiced eye.
MR. HACKENMILLER said we don't need the law.
CHAIR FRENCH said he used Senator Therriault's numbers and based
on a two month total he calculated that someone could ship 6
ounces of whiskey per day to a citizen, 13 ounces of wine per
day to a citizen and 25 ounces of beer per day to a citizen.
Debate can take place on what the appropriate level should be
but that's the math as far as the restrictions on shipment, he
said.
2:29:48 PM
DARWIN BIWER, Chair, Statewide Cabaret Hotel Restaurant &
Retailers Association (CHARR), said CHARR represents liquor
licensees across the state and they oppose the provision in
Section 2 that gives a $1,000 civil fine to the licensee for an
employee's action. This isn't right because legitimate licensees
aren't trying to sell to minors. Anchorage CHARR has put
together an in-house compliance check and has a pilot program in
Kodiak as well. This is in addition to the state compliance
checks by state troopers and is an effort to keep the numbers
down and keep people informed. All servers and owners are
required to take courses on the techniques of alcohol management
(TAM) and renew them every three years. When mistakes happen-and
they do-the perpetrator should be responsible, not the owner of
the bar.
MR. BIWER said he knows that this legislation came from social
service and welfare organizations. The liquor industry was not
involved and was not consulted. "We're completely ignored yet it
puts a penalty on our industry and on our people and that's just
not right either," he said.
2:33:06 PM
MR. BIWER reported that national statistics show that underage
drinkers get alcohol from their parents 65 percent of the time.
The second most common way is through friends and relatives and
the third way is the shoulder tap, which is where underage
drinkers gets someone to buy alcohol for them. Another venue for
getting alcohol is the afterhours clubs, which are illegal
unlicensed operations. They sell liquor and other things to
underage people and the onus comes down on legitimate licensees.
In closing he said owners and licensees should not be penalized
for something that somebody else does.
2:35:10 PM
SENATOR ELTON asked if this will create a situation where a
bartender may lose his or her job if they make a mistake because
the owner doesn't want to risk getting a $1,000 penalty.
MR. BEELER said that could happen.
SENATOR THERRIAULT said he appreciates the industry trying to
police itself to get rid of bad actors. He asked how a history
of compliance mistakes comes into play when a liquor license is
evaluated by local government and the ABC board.
MR. BEELER explained that the Anchorage Police Department (APD)
tracks all visits to bars and the citations. In Anchorage all
liquor licenses are approved by the municipal assembly and the
ABC board is part of the system as well.
SENATOR THERRIAULT asked if the owner is at risk of losing their
license if their business has proved to be a problem.
MR. BEELER said yes; the assembly makes a recommendation to the
ABC board, which has the final say on the license.
2:38:17 PM
CHAIR FRENCH noted that Commissioner Masters and John Glick are
online and available for questions.
DIANE CASTO, Manager, Prevention and Early Intervention
Services, Division of Behavioral Health (DBH), Department of
Health and Social Services (DHSS), said she is testifying on
behalf of DHSS in support of SB 85 She has listened to the
testimony today and during previous hearings and believes that
there's truth to everything that's been said. Alcohol is a huge
problem in this state. In the last several years DHSS received a
contract from the federal government that made it possible to
put together a state epidemiological profile on substance use
and abuse and dependency within Alaska. Not surprisingly, they
found that the drug of choice in Alaska is alcohol. People in
this state drink a lot of alcohol and that causes an enormous
number of problems. The reality is that SB 85 absolutely will
not solve all the problems, because solving substance abuse
requires a multi-strategy approach. "It's a big issue, it's a
big problem and it needs to be looked at from a very
comprehensive approach."
MS. CASTO cited statistics from the federal division of public
health violent death and unintentional death reporting system.
Between 2001 and 2004 the leading causes of premature death in
Alaska include chronic liver disease, cirrhosis, homicide,
suicide and unintentional injury. The majority are associated
with alcohol use.
Alaskans consume all alcoholic beverages at a higher rate than
the national average and hard liquor consumption is 1.5 times
higher than the national average. The federal 50-state annual
household survey indicated that 50 percent of adults in Alaska
report current alcohol use. The prevalence of binge drinking in
this state is the highest in the nation, particularly for those
between the ages of 18 and 34. Approximately 16 percent of
hospitalized injuries are associated with alcohol use, 32
percent of motor vehicle crashes involved alcohol use and 31
percent of motorcycle crashes involved alcohol.
2:43:40 PM
MS. CASTO explained that a standard drink is 12 ounces of beer,
8 ounces of malt liquor, 5 ounces of wine and 1.5 ounces of 80
proof alcohol. According to the federal Dietary Guideline for
Americans: moderate drinking is defined as no more than 1 drink
per day for women and 2 drinks for men; heavy is defined as an
average of more than 2 drinks per day for women or men; and
binge drinking is an average of 4 or more drinks per occasion
for women and 5 or more drinks per occasion for men.
The Division of Behavioral Health does a lot of work with
underage drinking and it's clearly another problem area.
According to the 2007 Youth Risk Behavior Survey, 73.6 percent
of students reported having had at least one alcoholic drink on
one or more days during their lifetime and 20.4 percent of those
students reported having their first drink of alcohol before
they were 13 years of age. She noted that research shows that
drinking before the age of 15 markedly increases the likelihood
of having lifelong trouble with alcohol. Also 39.7 percent of
students reported having had one or more alcoholic drinks in the
last 30 days. The good news is that consumption of alcohol among
young people is starting to go down.
MS. CASTO said the message from DHSS is that it supports a
multi-strategy approach and SB 85 is one piece of the strategy.
With respect to Section 2, which pertains to licensees, she said
she would agree with a previous testifier that just a small
percentage of alcohol is purchased by youth in package stores or
bars. However, it's important to look at the many ways that
youths get alcohol and retailers certainly are a piece of the
picture. DHSS believes the laws for alcohol should be similar to
the laws for tobacco. There is a fine for the clerk who sells
tobacco to a minor and it has a penalty for the licensee. That
reinforces that the issue is serious and everyone needs to pay
attention to it. There is due process related to compliance to
tobacco laws and she assumes that would be the case for alcohol
as well. Before the very strict laws and penalties for selling
tobacco to minors there was a 40 percent sell rate, and this
year it had dropped to about 12 percent. It's important to have
a strong statement and penalties to reinforce that keeping these
dangerous substances out of the hands of youth is taken
seriously.
2:48:28 PM
CHAIR FRENCH asked who tracks the number of incidents of bars
having sold alcohol to minors in any given year.
MS. CASTO surmised that it's the ABC board. The Division of
Juvenile Justice receives federal funding to enforce underage
drinking laws and they monitor compliance checks. She said it
provides perspective to understand that in Alaska just one
person does compliance checks for alcohol and three do
compliance checks for tobacco. Clearly, just a small percentage
of sales are monitored.
2:49:46 PM
SENATOR THERRIAULT observed that alcohol licensees come up for
comment and recommendation by local government and noncompliance
could potentially jeopardize the continuation of the license,
but there isn't a similar mechanism for tobacco.
MS. CATO clarified that it's actually tougher for the tobacco
industry. Selling to a minor the first time results in a fine to
the clerk, a fine to the owner and a 20-day suspension of the
tobacco endorsement, which is required in order to sell tobacco.
Suspension of the tobacco endorsement increases with each
subsequent offense and for some businesses that amounts to a
significant loss of revenue.
2:51:12 PM
RODNEY DIAL, Lieutenant, Department of Public Safety (DPS), told
the committee that he has lived, gone to school and worked in
Bethel. He said DPS supports SB 85 and doesn't believe it will
hinder the average Alaskan importing alcohol into their local
option community for their own legal use. But DPS believes it
will impact the illegal distribution of alcohol into restrictive
communities, which will reduce violent crime. He noted that it's
not a finding of guilt if someone is in possession of more
alcohol than the specified amount. It's only a presumption that
the person possesses the alcoholic beverage for purpose of sale.
Law enforcement in the community and the DA's office both look
at those cases carefully for the intent.
CHAIR FRENCH said it agrees that the bill doesn't set a personal
limit for possession. However, the language on page 2, lines 8,
9 and 10 restricts the amount that can be shipped to an
individual and that essentially puts a de facto limit on them.
An individual may have a legitimate explanation for having 10
cases of beer in their possession and law enforcement may decide
not to charge the person with bootlegging. But the fact is that
individuals will have a hard time assembling over the allowed
amount unless they are able to convince people that don't drink
to ship alcohol, which isn't a good policy.
CHAIR FRENCH observed that the bill seems to be designed to help
law enforcement make cases that are in the gray area. A person
who has 12 liters of distilled spirits, for example. Under the
old standard that might be too close to the line to bother with,
but lowering the standard would make it more likely that the
prosecution would be successful. If someone literally had a boat
full of alcohol there would be no question, but other cases
would be less clear. He asked how many cases would fall in that
gray zone.
2:54:51 PM
LIEUTENANT DIAL said they see both. Some cases are obvious
because they're extremely over the limit, but there are also
cases where the amount is just under the legal limit and it's
just one type and brand of alcohol and it's packaged so it's
hidden from view. Those are the types of cases that SB 85 would
allow law enforcement to address. "We suspect we know what the
intent is and where that alcohol is going to wind up and that
it's not going to be for a good use."
CHAIR FRENCH asked if he has worked these cases.
LIEUTENANT DIAL said yes. Currently he supervises patrol
functions in Southeast, which includes the local option
community of Angoon.
SENATOR THERRIAULT referenced Senator French's example of
someone who has a wine cellar and asked how DPS handles issues
of a person who is accumulating for a Christmas party, and over
time they exceed the allowed amounts. He asked how easy it would
be for a person under that circumstance to exercise the
rebuttable presumption.
LIEUTENANT DIAL said part of the investigation would be to talk
to the person to figure out their intent. If there were
mitigating factors, officers wouldn't necessarily make an arrest
that day. They would refer it to the district attorney's office
for review. In his 19 years as a state trooper he can't remember
a case where they charged someone who was bringing in wine to
stock their private cellar. He doesn't remember anyone ever
saying they were stocking up for a holiday event either.
2:58:23 PM
SENATOR ELTON said it would be helpful to understand why this
doesn't apply to him because he lives in an urban center, but it
does apply to someone who lives in a damp community. Also, he
questions what happens if new standards are applied
retroactively because there are policy implications if this
causes some communities to return to a wet designation from a
current damp designation. "I'm sure there's a legal answer that
says … you can apply a different standard to me than to somebody
in Bethel. I just need to know what it is."
CHAIR FRENCH speculated that the community voted itself damp at
a particular level or amount of allowable alcohol and he
believes the Legislature is able to change those limits for the
future. That being said, he agrees that there is an issue about
whether those voters now are getting what they thought they
voted on to get a damp designation.
He told DOL he'd be interested in knowing how many cases of
bootlegging were referred for prosecution last year and what the
outcomes were. He then asked the ABC board to report how many
bars were cited for selling to underage minors last year.
Finally there's a policy question for Ms. Carpeneti; Barrow
voted to lower its alcohol limits below what the state allows
and he wonders why Bethel shouldn't be allowed to set the limits
for the rebuttable presumption and shipment amounts if that's
their choice.
CHAIR FRENCH held SB 85 in committee.
3:01:39 PM
CHAIR FRENCH adjourned the Senate Judiciary Standing Committee
at 3:03 pm.
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