ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
May 7, 2004
8:27 a.m.
TAPE(S) 04-67, 68
MEMBERS PRESENT
Senator Ralph Seekins, Chair
Senator Scott Ogan, Vice Chair
Senator Gene Therriault
Senator Johnny Ellis
Senator Hollis French
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 367(FIN) am
"An Act relating to the licensing and regulation of adult-
oriented businesses; and providing for an effective date."
MOVED SCS CSHB 367(JUD) OUT OF COMMITTEE
CS FOR HOUSE BILL NO. 552(FIN) am
"An Act relating to the creation of the Alaska Gaming Commission
to regulate gambling; authorizing the Alaska Gaming Commission
to license gambling games and gambling casino owners and
suppliers and to issue occupational licenses for gambling
employees; limiting casino gambling to municipalities with a
population of 150,000 or more; allowing the Alaska Gaming
Commission to issue only one owner's license for a gambling
casino in certain municipalities with a population of 150,000 or
more; creating crimes relating to gambling and setting
requirements for gambling; creating the state gaming fund in the
general fund; setting a gross receipts tax on gambling games;
limiting the authority of a municipality to tax the adjusted
gross receipts of gambling games."
HEARD AND HELD
SENATE BILL NO. 246
"An Act relating to the commission of an offense or a juvenile
delinquency act involving the victim's race, sex, color, creed,
physical or mental disability, sexual orientation, ancestry, or
national origin; relating to sentencing, informal adjustment,
and adjudication for those offenses and acts; relating to a
diversity tolerance program for certain juvenile delinquency
acts; relating to a civil cause of action for certain acts
involving discriminatory harassment; and providing for an
effective date."
MOVED CSSB 246(JUD) OUT OF COMMITTEE
SENATE BILL NO. 397
"An Act relating to open meetings guidelines applicable to
legislators, to the confidentiality of complaints and
proceedings involving alleging violations of AS 24.60, and to
hearings on formal charges by the Select Committee on
Legislative Ethics or its subcommittees."
SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 367
SHORT TITLE: LICENSING ADULT-ORIENTED BUSINESSES
SPONSOR(s): REPRESENTATIVE(s) MCGUIRE, GARA
01/12/04 (H) PREFILE RELEASED (1/9/04)
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) L&C, JUD, FIN
01/30/04 (H) L&C AT 3:15 PM CAPITOL 17
01/30/04 (H) Heard & Held
01/30/04 (H) MINUTE(L&C)
02/02/04 (H) L&C AT 3:15 PM CAPITOL 17
02/02/04 (H) Moved CSHB 367(L&C) Out of Committee
02/02/04 (H) MINUTE(L&C)
02/05/04 (H) L&C RPT CS(L&C) NT 2DP 3NR 2AM
02/05/04 (H) DP: DAHLSTROM, ANDERSON; NR: CRAWFORD,
02/05/04 (H) LYNN, GATTO; AM: ROKEBERG, GUTTENBERG
02/09/04 (H) JUD AT 1:00 PM CAPITOL 120
02/09/04 (H) <Bill Hearing Postponed to 2/16/04>
02/16/04 (H) JUD AT 1:00 PM CAPITOL 120
02/16/04 (H) Heard & Held
02/16/04 (H) MINUTE(JUD)
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
02/23/04 (H) Scheduled But Not Heard
02/25/04 (H) JUD AT 1:00 PM CAPITOL 120
02/25/04 (H) Heard & Held
02/25/04 (H) MINUTE(JUD)
02/27/04 (H) JUD AT 1:00 PM CAPITOL 120
02/27/04 (H) Moved CSHB 367(JUD) Out of Committee
02/27/04 (H) MINUTE(JUD)
03/03/04 (H) JUD RPT CS(JUD) NT 3DP 3NR
03/03/04 (H) DP: ANDERSON, GARA, MCGUIRE;
03/03/04 (H) NR: SAMUELS, GRUENBERG, OGG
04/15/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/15/04 (H) Moved CSHB 367(FIN) Out of Committee
04/15/04 (H) MINUTE(FIN)
04/19/04 (H) FIN RPT CS(FIN) NT 3DP 6NR
04/19/04 (H) DP: MEYER, HARRIS, WILLIAMS;
04/19/04 (H) NR: HAWKER, STOLTZE, MOSES, CHENAULT,
04/19/04 (H) FATE, FOSTER
04/27/04 (H) TRANSMITTED TO (S)
04/27/04 (H) VERSION: CSHB 367(FIN) AM
04/28/04 (S) READ THE FIRST TIME - REFERRALS
04/28/04 (S) L&C, JUD, FIN
04/29/04 (S) L&C REFERRAL WAIVED
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
05/05/04 (S) Scheduled But Not Heard
05/07/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: HB 552
SHORT TITLE: GAMBLING & GAMING
SPONSOR(s): FINANCE
04/06/04 (H) READ THE FIRST TIME - REFERRALS
04/06/04 (H) FIN
04/19/04 (H) FIN AT 9:00 AM HOUSE FINANCE 519
04/19/04 (H) Heard & Held
04/19/04 (H) MINUTE(FIN)
04/21/04 (H) FIN AT 1:30 PM HOUSE FINANCE 519
04/21/04 (H) Moved CSHB 552(FIN) Out of Committee
04/21/04 (H) MINUTE(FIN)
04/22/04 (H) FIN RPT CS(FIN) 2DP 1DNP 6NR 1AM
04/22/04 (H) DP: FATE, WILLIAMS; DNP: STOLTZE;
04/22/04 (H) NR: MEYER, HAWKER, CROFT, MOSES, JOULE,
04/22/04 (H) HARRIS; AM: CHENAULT
05/01/04 (H) MOTION FOR REFERRAL TO L&C
05/01/04 (H) AMEND TO COMMITTEE OF WHOLE WITHDRAWN
05/01/04 (H) REFERRAL TO L&C FAILED Y7 N31 E2
05/03/04 (H) TRANSMITTED TO (S)
05/03/04 (H) VERSION: CSHB 552(FIN) AM
05/04/04 (S) READ THE FIRST TIME - REFERRALS
05/04/04 (S) JUD, FIN
05/07/04 (S) JUD AT 8:00 AM BUTROVICH 205
BILL: SB 246
SHORT TITLE: HATE CRIMES/DISCRIMINATION/TOLERANCE PROG
SPONSOR(s): SENATOR(s) LINCOLN
01/12/04 (S) PREFILE RELEASED 1/2/04
01/12/04 (S) READ THE FIRST TIME - REFERRALS
01/12/04 (S) STA, JUD
03/23/04 (S) STA AT 3:30 PM BELTZ 211
03/23/04 (S) Moved SB 246 Out of Committee
03/23/04 (S) MINUTE(STA)
03/24/04 (S) STA RPT 4DP
03/24/04 (S) DP: STEVENS G, HOFFMAN, STEDMAN, GUESS
03/24/04 (S) FIN REFERRAL ADDED AFTER JUD
04/07/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/07/04 (S) Heard & Held
04/07/04 (S) MINUTE(JUD)
04/23/04 (S) JUD AT 8:00 AM BUTROVICH 205
04/23/04 (S) Scheduled But Not Heard
05/04/04 (S) JUD AT 8:00 AM BUTROVICH 205
05/04/04 (S) Scheduled But Not Heard
05/05/04 (S) JUD AT 8:00 AM BUTROVICH 205
05/05/04 (S) Scheduled But Not Heard
05/07/04 (S) JUD AT 8:00 AM BUTROVICH 205
WITNESS REGISTER
Mr. Heath Hilyard
Staff to Representative McGuire
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 367 for the sponsor
Ms. Cara Nyquist
Covenant House
Anchorage, AK
POSITION STATEMENT: Supports CSHB 367(FIN)am
Ms. Andree McCleod
No address provided
POSITION STATEMENT: Opposed to CSHB 367(FIN)am
Mr. Dale Fox
CHARR
Anchorage
POSITION STATEMENT: Opposed to CSHB 367(FIN)am
Ms. Carol Hartman
Fantasies
Anchorage, AK
POSITION STATEMENT: Opposed to CSHB 367(FIN)am
Ms. Kathy Hartman
Fantasies
Anchorage, AK
POSITION STATEMENT: Opposed to CSHB 367(FIN)am
Mr. Tom Wright
House Finance Committee Staff
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Presented HB 522 for the House Finance
Committee
Senator Georgianna Lincoln
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Sponsor of SB 246
Mr. Jerry Luckhaupt
Legal and Research Services Division
Legislative Affairs Agency
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Answered questions about versions S and Q
of SB 246.
ACTION NARRATIVE
TAPE 04-67, SIDE A
CHAIR RALPH SEEKINS called the Senate Judiciary Standing
Committee meeting to order at 8:27 a.m. Senators French, Ogan,
Therriault and Chair Seekins were present. He announced that he
would take up bills as people were available to testify, and
that committee would begin with HB 367.
CSHB 367(FIN)am-LICENSING ADULT-ORIENTED BUSINESSES
MR. HEATH HILYARD, staff to Representative Lesil McGuire,
sponsor, told members that HB 367 has undergone numerous
iterations with regard to the provisions included. When
Representative McGuire began to work on this bill, she was
looking at the concept of both business and occupational
licensing: business licensing for the clubs and occupational
licensing for entertainers. However, due to fiscal
considerations and numerous objections raised, the bill focuses
only on business licenses. That focus is the most fiscally
responsible and the element most agreed upon.
MR. HILYARD said the version that passed the House also
specifies the types of sexual contact prohibited. Some Title 4
provisions, which pertain to regulating alcohol establishments
and prohibit such specified sexual contact, were incorporated
into CSHB 367(FIN)am and apply to establishments that do and do
not serve alcohol. In addition, the House Labor and Commerce
Committee raised the age of patron and entertainer to 21.
However, after discussions in the House Judiciary Committee and
on the House floor about an ongoing case in Missouri, the House
dropped the age down to 18 to alleviate any constitutional
concerns. The bill also provides for particular restrictions so
that applicants for business licenses cannot have been convicted
of certain sex and drug offenses. It also requires notification
to community councils or other non-profit community
organizations. He offered to answer questions.
SENATOR OGAN noted the bill talks about sharing a residential
unit inhabited by minors and asked if that has been discussed.
MR. HILYARD said as a result of interim deliberations when this
bill was being drafted, several people expressed concern about
massage parlors and escort services in residential areas that
might share entryways with places that minors enter and exit so
that was added as a precaution. He said he is not aware of any
existing problem with strip clubs.
SENATOR OGAN asked if this bill addresses a situation where a
mother works as a prostitute at home.
MR. HILYARD said it does not, to his knowledge, only because
prostitution is illegal on its face at this time. Representative
McGuire's interest was to regulate activities that are not
currently illegal or that the law is silent on.
SENATOR OGAN asked if all activities in adult oriented
businesses will have to take place in the open so that a
business cannot have private rooms for viewing pornography.
MR. HILYARD said he believes that is correct. CSHB 367(FIN)am
addresses the interior layout of these establishments so that
all areas are visible from the entrance.
SENATOR OGAN asked Mr. Hilyard if he anticipates any First
Amendment issues arising from that requirement. He said that
technically, an adult oriented business does not differ from a
hotel that offers sexually explicit materials on a pay-per-view
basis.
MR. HILYARD acknowledged that Senator Ogan's concern about the
First Amendment is a good point and is one of the reasons the
House backed away from requiring participants to be 21. The
State of Missouri enacted a provision to raise the age of
dancers from 18 to 19 last year and that is currently in federal
court.
He explained that the First Amendment does not provide a
guaranteed constitutional right to be entertained. However, the
courts have said, particularly in Barn v. Glen Theater, that the
act of erotic dancing is covered but that right is not as
important as other core rights such as political speech.
Representative McGuire believes that the House has gone to the
extent possible in this particular version to alleviate any
First Amendment concerns.
SENATOR OGAN asked if the bill addresses private rooms in adult
oriented businesses that do not have entertainers.
MR. HILYARD said this version does not. Representative McGuire
backed away from trying to regulate bookstores or other such
businesses because there are very few in the state and because
Assemblyman Dan Sullivan sponsored a zoning regulation in
November that addressed those types of establishments in
Anchorage.
SENATOR OGAN asked if requiring a partition in adult book or
video stores would cause a First Amendment problem.
MR. HILYARD said he did not believe so because the issue has to
do with the expressive act of dancing and whether the right to
be entertained falls under the First Amendment. He deferred to
Senator French for more information.
SENATOR FRENCH said this is an unclear area and one would not
know until the U.S. Supreme Court decided the issue.
SENATOR FRENCH then asked the minimum age at which one can
legally buy tobacco products.
MR. HILYARD replied 19.
SENATOR FRENCH said he asked that because this bill is the
result of some community activists who were concerned that
minors were frequenting or working at these establishments. He
participated in a community council discussion the previous
evening. That council was very unhappy that the minimum age in
the bill was raised to 21 and then dropped back down to 18. He
said he appreciates the huge amount of work Representative
McGuire has done on this bill and then suggested that the
committee raise the age to 19 as that would alleviate the
problem of 18-year-old high school students going to or working
in strip clubs. He said he believes that would withstand a
constitutional challenge and that it would be worth challenging.
SENATOR FRENCH then moved to raise the age of participation or
employment in an adult oriented business to 19 [Amendment 1].
CHAIR SEEKINS objected for the purpose of discussion.
MR. HILYARD said Senator French is absolutely correct with
regard to the community council's concern: that high school
students are both working in and visiting these establishments.
However, with regard to raising the age to 19, Representatives
McGuire and Gara have discussed the issue at length and felt
that would be difficult to get through the legislature and the
courts. He did not believe Representative McGuire would oppose
raising the age but she is concerned about the case underway in
Missouri. He said she also looked at the Alaska Constitution and
was concerned that if the bill would not meet federal
constitutional scrutiny, it would have more difficulty meeting
state constitutional scrutiny.
SENATOR FRENCH asked if Representative McGuire considered
including a severability clause to moot that one provision and
make the default age 18 if the court decision is adverse.
MR. HILYARD said the House Judiciary Committee adopted a version
that included a severability clause but it was pulled out when
the House dropped the age back to 18.
SENATOR FRENCH moved to amend Amendment 1 to add a severability
clause.
SENATOR OGAN spoke in support of the amendment.
CHAIR SEEKINS announced that without objection, the amendment to
Amendment 1 was adopted.
MR. HILYARD asked Senator French if he intended to raise the age
to 19 for both patrons and entertainers.
SENATOR FRENCH said he intended the age of 19 to apply to both.
CHAIR SEEKINS said that was his understanding. He then noted
that without further discussion or objection, Amendment 1 as
amended was adopted as a conceptual amendment.
CHAIR SEEKINS then announced he would take public testimony but
placed a two-minute time limit on each participant's testimony.
MS. CARA NYQUIST, an Alaska attorney, stated support for HB 367
and informed members she submitted written testimony. Regarding
the First Amendment, she believes the age for patronage and
employment could be 19 or 21. She reviewed the constitutional
issues and found the case law to be clear that states have a
duty to regulate these types of businesses. She said she
believes the committees have heard a lot of testimony about the
local effects of these unregulated businesses. She believes this
legislation is distinguishable from similar laws in other
jurisdictions that are being challenged. In those jurisdictions,
the legislatures did not make an extensive record of testimony
on the local effects. She said she does not believe this bill is
about a moral agenda, it originated as the result of stories
told by young people about some shocking things that are going
on in these establishments.
MS. ANDREE MCCLEOD stated opposition to CSHB 367(FIN)am because
it was poorly researched and presented and doomed from the
start. She said one thing she has learned while researching this
bill is that women are not the people being exploited. The
impetus for this bill was information compiled by unknown
individuals at secret meetings held during the interim. That
information cannot be substantiated. She is aware that the
director of the Covenant House and some of her clients were
involved. She learned that during the intake process at the
Covenant House, the more perverse the story told by the client,
the more services are provided. This correlation is ripe for
abuse. When the clubs got involved, a true examination of CSHB
367(FIN)am began.
MR. DALE FOX, Executive Director of the Cabaret, Hotel and
Restaurant Retailers' Association (CHARR), said CHARR is opposed
to CSHB 367(FIN)am in its current form as it believes the
legislation is a solution looking for a problem. He referred to
the purpose and findings of the bill and said the authors of the
bill have borrowed from other states where such problems exist.
The findings refer to law-abiding people being accosted and
harassed on the street, which does not happen in Alaska. The
findings also refer to the proliferation of pornographic litter,
which does not happen in Alaska. He noted that prostitution is
also suggested as one of the reasons for this bill, however
prostitution is already illegal. Regarding the issue of age, he
said the legislature could establish a minimum age based on the
age it believes people are mature enough to be tried as adults.
SENATOR OGAN countered that he has spent time patrolling with
Anchorage Police Department officers in Anchorage at night and a
lot is going on.
MS. CAROL HARTMAN, co-owner of Fantasies, an adult-oriented
business, said the adult-oriented club industry is being singled
out because of one circumstance. She said if the legislature is
going to take action, the same restrictions should apply to all
18 year olds seeking employment. [Most of Ms. Hartman's
testimony was inaudible.]
MS. KATHY HARTMAN, co-owner of Fantasies, told members that
Fantasies is an 18 and over gentlemen's club. Its clientele is
made up of people of all ages and all walks of life. She said
this bill is the result of [complaints made by] a woman who
danced in the 1980s, when all clubs were regulated by the ABC
Board. The problems she discussed have already been taken care
of. Clubs are licensed and required to have annual inspections.
All dancers must be employees, not contractors. Laws are on the
books to deal with drug use, prostitution, sales, sexual
assault, wage and hour issues, and employment of minors. She
maintained that high school students are not hired in her club
and that if that is a problem, parents, teachers and counselors
should be addressing that problem, not the legislature. The
Alaska Supreme Court has already determined that erotic dancing
is constitutionally protected under the federal and state
constitutions.
SENATOR OGAN said he wants to know whether Bethany Carrera's
murderer, when found, ever attended adult-oriented clubs.
CHAIR SEEKINS closed public testimony, due to no further
participants.
SENATOR FRENCH commented that he is impressed by the work done
by the House on this bill.
SENATOR OGAN moved SCS CSHB 367(JUD) from committee with
individual recommendations.
CHAIR SEEKINS announced that without objection, the motion
carried.
CSHB 552(FIN)am-GAMBLING & GAMING
MR. TOM WRIGHT, staff to the House Finance Committee, which
sponsored HB 552 by request, explained that the bill establishes
an Alaska gaming commission designed to oversee the statutes
established in the bill that pertain to gambling. It also
creates new statutes that authorize the commission to issue a
license to own and conduct gambling games at a specified
gambling facility in any municipality in the state with a
population of 150,000 or more. The House amended the bill to say
that if a municipality adopts an ordinance, it must be ratified
by a majority of the municipal voters.
MR. WRIGHT told members that the new gambling commission would
administer, regulate and enforce licensing for gambling
facilities, its employees and its suppliers. The commission
would collect fees and taxes and place them into a state gaming
fund, which would consist of all revenue received from gambling
activities. The fund will pay any activity conducted by the
commission and other agencies related to gambling and gaming.
The state would receive a 17 percent tax; the municipality where
the gambling facility is located could also collect a tax, but
not more than 3 percent of adjusted gross receipts. CSHB
522(FIN)am also creates new class C and class A misdemeanors for
crimes related to associated gambling operations and activities.
Currently 48 states have some form of legalized gambling. The
purpose of CSHB 552(FIN)am is to provide tools and strict
supervision of gambling and gaming activities authorized by the
Alaska gaming commission.
9:05 a.m.
SENATOR THERRIAULT asked for a description of the level of
debate that took place in the House about the possibility that
if this legislation passes and a casino were to be licensed,
that would open the state up for the spread of Indian gaming in
the state.
MR. WRIGHT said this bill would allow gambling operations on
certain Indian lands: the Metlakatla reservation and Kake and
Angoon.
SENATOR OGAN said it was his understanding that the issue of
Native allotments was not resolved by the Venetie case. He
recalled a briefing given by the former attorney general to the
Majority Caucus on that issue. That was one reason the
legislature did away with allowing non-profits to conduct Monte
Carlo nights.
MR. WRIGHT had the same recollection. He noted that Susan Burke,
a Juneau attorney who has worked on this issue, believes that
Native allotments would not be considered as Indian land under
the Indian Regulatory Gaming Act.
SENATOR OGAN surmised that no one will have the final answer
until the court rules on the question.
MR. WRIGHT agreed.
SENATOR FRENCH asked if any discussion has taken place about
potential land swaps for reservation land.
MR. WRIGHT said he was unable to answer that question as he did
not have enough experience in Indian law.
CHAIR SEEKINS referred to Sec. 05.18.100, beginning on page 11,
entitled, Ejection or exclusion from facilities, and noted the
section does not clarify that the provision is in addition to
the power of the police to remove a trespasser. It basically
says the commission will determine that. He then said, "The
next part of that, if I go down to [Sec. 05.18.120[, on the same
page, here it appears to me to subject the investigative powers
of the state and the local police to the Alaska gaming
commission. It puts it in a subjective role."
MR. WRIGHT thought that if a trespassing complaint is filed,
nothing would prohibit the local police force or DPS from
becoming involved. He was unable to answer Chair Seekins' second
question.
CHAIR SEEKINS said Sec. 05.18.220 on page 18 appears to give the
Alaska gaming commission the right to issue liquor licenses and
security guard licenses, which are currently the responsibility
of the Department of Public Safety (DPS).
MR. WRIGHT said the licensed owner has to apply to the
commission to hold any license if the owner is going to supply
to that gambling facility. However, the bill also contains
supplier license provisions that say what can be supplied, and
he did not believe that includes alcohol or food. He clarified
that it applies to all other licenses.
CHAIR SEEKINS said it appears that the commission has supplanted
the authority of DPS in that it says a license holder may apply
to the commission for and may hold licenses that are necessary
for the operation of a gambling facility, including the license
to prepare and serve food for human consumption and any other
necessary license. The commission will be putting itself in a
position now held by other state agencies because the owner will
just go to the commission to get what he needs.
MR. WRIGHT said he believes that DEC and some of the other
agencies that are responsible for food preparation inspections
will still do so.
CHAIR SEEKINS felt that should be clarified in the bill.
SENATOR FRENCH referred to Sec. 05.18.010 on page 2, which
pertains to the commission itself. He asked if it will consist
of three members and how that number was arrived at.
MR. WRIGHT said that is correct and that various numbers were
floated around but three is the number the House decided to
adopt. He noted the bill is based on the Indiana gambling law.
SENATOR FRENCH said if this bill is enacted, three people will
decide who will get the one casino license.
MR. WRIGHT said the bill contains certain parameters that must
be used when determining who will get that one license.
SENATOR FRENCH expressed concern that there may be a fierce
amount of competition for that one casino license.
MR. WRIGHT said he could not argue that point.
SENATOR FRENCH said he would prefer to see more decision makers
and a broader array of interests represented on the commission.
He said he appreciates the fact that the commission will include
a person with a law enforcement background and another with an
accounting background and that the majority cannot be from any
one political party. He repeated that his concern is the large
amount of power that those three people will have.
MR. WRIGHT explained that one thing the [House Finance
Committee] wanted to exclude from membership is anyone with a
potential conflict of interest.
SENATOR FRENCH asked, given that a fierce amount of competition
for the license is likely, what the appeals structure will be
for the applicants.
MR. WRIGHT said the bill contains an appeals process that is
based on the Administrative Procedures Act that can be used for
any disagreement with a decision made by the commission.
TAPE 04-67, SIDE B
CHAIR SEEKINS questioned why Sec.05.18.450 on page 25 does not
provide any authorization for the Anchorage police to inspect a
facility; only the Department of Public Safety or commission
employees can do an inspection.
MR. WRIGHT did not believe the local police would be precluded
from doing an inspection and said he was not opposed to
including that in the bill.
CHAIR SEEKINS said it appears that the forfeiture provision
allows for the forfeiture of property belonging to innocent
suppliers and might violate the substantive due processes in
State v. Wilder [626 P2nd 104 1981].
MR. WRIGHT pointed out that a supplier's license issued under
this chapter would allow a person to supply security,
surveillance, supplies, money counting machines, gambling
paraphernalia, supply services, and equipment to a licensed
owner. Therefore, a supplier's license is limited to that scope.
CHAIR SEEKINS maintained that the forfeiture section may still
have due process problems. He then referred to Sec. 05.18.540
and said it reduces the level of certain crimes already in
Alaska's criminal code, such as bribery.
MR. WRIGHT said the new crimes established in the bill only
pertain to the gambling operations.
CHAIR SEEKINS said he has a problem charging a casino owner with
a lower criminal charge than that given to any other gambling
operator or otherwise. He then pointed out that (a)(1) and (6)
in Sec. 05.18.540 are duplicative. He indicated that he has not
had a lot of time to review the bill but from his quick review,
he has some serious concerns. He said despite his personal
disapproval of legalized gambling, as a legislator he is trying
to craft a bill that he could approve of. He offered to make a
list of the concerns he has with the bill itself so that the
sponsor could address some of them.
MR. WRIGHT offered to review the list.
CHAIR SEEKINS asked if members objected to setting the bill
aside for further review.
SENATOR THERRIAULT said he had hoped to have a copy of a memo
from independent counsel on the Indian gaming issue today but
was unable to reach Mr. Popely. He offered to provide copies at
the next meeting.
CHAIR SEEKINS said it is not his intent to prevent people from
testifying at this time but, rather, he does not want to take
testimony on the bill in its current form so he would take
public testimony when some of the concerns are addressed.
SENATOR ELLIS asked about the timeframe.
CHAIR SEEKINS said he intended to shut the committee down
tomorrow.
SB 246-HATE CRIMES/DISCRIMINATION/TOLERANCE PROG
SENATOR GEORGIANNA LINCOLN, sponsor of SB 246, asked to be
joined by the legal drafter, Mr. Luckhaupt. She then pointed out
that the latest version of SB 246 needed to be adopted by the
committee.
CHAIR SEEKINS announced that the latest draft, labeled version
Q, was before the committee, and that without objection, it was
adopted as the work draft before the committee.
SENATOR LINCOLN said she would not repeat the testimony she gave
at a previous hearing on SB 246, but would repeat a statement by
Walt Monegan, Anchorage Chief of Police, who said when asked
about the difference between rage and hatred that rage is
usually directed at an individual while hatred is directed
toward a group. Mr. Monegan's point was that greed motivates
most people to commit a crime; however, the primary motive
behind a hate crime is to create fear in a group.
CHAIR SEEKINS asked Senator Lincoln to review the changes made
in version Q.
SENATOR LINCOLN said the major change was to the title - the
civil aspect was removed because of the question about the title
containing a dual subject. She asked that Mr. Luckhaupt review
the remaining changes.
MR. JERRY LUCKHAUPT, legislative counsel, Division of Legal
Services, told members that Section 1 of one of the previous
versions of the bill was removed. Section 1 pertained to the
civil enforcement scheme, which provided the opportunity to sue
for damages. That was removed because it is already available
under other provisions. The major change was made in Sections 10
and 11. A provision was added to those sections that describes
the penalties that juveniles can receive. He explained:
To correspond with the hate crime or the juvenile that
directs a crime at a person because of their
individual characteristics, we provided the same
penalty for a juvenile that directs a crime at a
police officer, fire fighter, or other emergency
responder. That's section 10 and 11.
SENATOR THERRIAULT asked Mr. Luckhaupt if the hate motivation
issue has been added to a list that already includes those
things or whether a new section was created.
MR. LUCKHAUPT replied that Senator Lincoln's bill contained
additions to the possible penalties for juveniles for other
crimes motivated by hate. He continued, "As part of the
direction I received, the idea was that we wanted to correspond
that, as was done previously in portions of the bill, to the
penalties that are provided for crimes that are directed against
law enforcement or other emergency responders based upon their
duties and so we added in law enforcement provisions to the
juvenile penalty schemes and provided the same penalties as for
the hate crime as for the law enforcement officers."
SENATOR THERRIAULT asked if Mr. Luckhaupt copied the existing
language located elsewhere in the statutes for the police
officers.
MR. LUCKHAUPT said language exists in statute for crimes
committed against peace officers that heightens penalties for
both class A felonies and for misdemeanors. He noted the
Legislature has consistently provided heightened punishment for
that crime and it may be the only crime the Legislature has
consistently provided greater presumptive terms or mandatory
minimum sentences for misdemeanors. He explained:
And so what we did because that was in statute and
from the direction of the Chairman and Senator
Lincoln, we decided to in each place where we're
proposing a greater punishment for hate crimes, if you
don't already impose a greater punishment for law
enforcement officers, I brought up the law enforcement
officer to correspond to that and that was just in
these few areas that I'm going to highlight.
CHAIR SEEKINS said many people who commented about the bill felt
that a hate crime should not be heightened above a similar crime
against a police officer or an emergency responder. However,
their objections began to melt if the motivational level was no
greater than the existing language in statute for peace
officers.
SENATOR LINCOLN added that is why the title was changed to
include an offense against peace officers, fire fighters and
emergency responders to correspond to those areas.
CHAIR SEEKINS asked Mr. Luckhaupt if that was covered everywhere
he could think of in statute.
MR. LUCKHAUPT said yes, and that was the point of the new draft
version. He said those areas in which the heightened punishment
language did not exist were raised to correspond with the
punishment in Senator Lincoln's bill. He explained that Sections
10 and 11 apply the same penalty for law enforcement officers
and Section 9 allows the court to refer a person with special
potential for rehabilitation to a three-judge panel for
sentencing purposes. The aggravating factors for felony
sentencing are on page 5, line 21. He explained:
[On line 21] (13) is the aggravating factor for crimes
committed against cops and emergency responders, (22)
is the aggravating factor that exists in statute
relating to hate crimes. So we've added both of those
into this list of offenses where you can't refer the
case to a three-judge panel. Working back from there,
the rest of the bill is the same and then Senator
Lincoln pointed out to me that Section 13 of the bill
has a requirement that the diversity tolerance program
that is a requirement of sentencing for juveniles, we
put in a provision saying that the court may not
require somebody to take that program until the
Department of Health and Social Services has actually
developed, implemented, and designated the program as
required under the statute so it's not something - a
little Catch 22 for people that you have to take the
program as part of their juvenile adjudication that
doesn't actually exist yet.
SENATOR FRENCH referred to Section 7 on page 4, line 27, which
reads:
(k) A defendant is convicted of a misdemeanor in AS 11
shall be sentenced as
and moved to delete the word "is".
CHAIR SEEKINS announced that without objection [Amendment 1] was
adopted.
MR. LUCKHAUPT indicated that law enforcement officers were also
added to Section 7. The category of a court being able to
classify someone as a worst offender applies to the hate crime
situation in paragraph (1) on line 30, and it also applies to
the existing language for other penalty schemes relating to
directing the offense at a police officer, firefighter, or
emergency responder. The idea of a worst offender is based on
the rationale that the Alaska courts have developed over time,
which allows the court to impose a sentence at the top end of
the range or to the maximum offense if that offender is
classified as the worst in that class of offender.
SENATOR FRENCH, in response to a question from Senator Ogan,
said the motive of the person who attacked a peace officer is
not considered. He continued:
The officer in the uniform is sort of protected by the
uniform and we don't worry about the mental state of
the person who assaults a police officer or a
paramedic or anybody else. We just say that's a worst
offense. You're going to get a minimum of 60 days and
you're a worst offender, which authorizes a maximum
sentence if the judge decides to impose it.
MR. LUCKHAUPT agreed.
SENATOR OGAN commented that he would be more comfortable
confining it to a person who committed a crime against a peace
officer because that person was a peace officer or paramedic and
focus on the intent of the crime rather than the commission of
the crime.
CHAIR SEEKINS asked if this bill will now treat a crime against
a person because of the person's race, etcetera, at the same
level of sentencing and with aggravators as a crime against a
police officer.
MR. LUCKHAUPT said there is no longer an aggravator for class B
and class C felonies or an increased presumptive term for first
offenses directed against peace officers. Those were removed by
the Legislature three or four years ago. He chose not to put
those back in after the discussion yesterday because those were
removed at the request of the peace officers and their
associations because they felt they were getting greater
sentences than any presumptive term that could be provided in
statute. Those are the only two areas that differ and that was
to follow what the Legislature has previously done.
CHAIR SEEKINS asked if there is now an aggravator for class B
and C felonies, for example a crime based on sexual abuse.
MR. LUCKHAUPT said that is correct. They were in the original
bill and remain in version Q as Sections 3 and 4.
CHAIR SEEKINS asked if that same rationale would apply to a hate
crime for a class B or C felony as it would to peace officers.
MR. LUCKHAUPT said possibly but it would depend on the sentences
judges are giving. He explained that when those provisions were
removed four or five years ago, the thinking was that the
aggravating factors could be applied to the sentences of worst
offenders. The Legislature did not want to include presumptive
terms because judges were inclined to follow the presumptive
terms. He said in this case, if there is the perception that
hate motivated crimes are not receiving an adequate starting
point, making a distinction would be beneficial.
SENATOR THERRIAULT asked if this language is all attached to a
motivation that is actually illegal.
MR. LUCKHAUPT said anything related to civil enforcement was
removed so an action for damages based upon a comment someone
made would not apply.
SENATOR THERRIAULT asked if there would have to be an underlying
criminal act with an aggravator. He noted the bill does not
contain any definition of sexual orientation. This version was
derived from a Department of Law bill, which was introduced two
years ago, and he is not aware of what the thinking was on that
topic. He deferred to Ms. Carpeneti.
CHAIR SEEKINS said that was the one area that remained
unresolved among the people he worked with to get support for
the bill. He noted that version S had been distributed and
addresses that topic. He then described version S as follows.
In the first part, Senator Lincoln removed the civil
liability and we've left that alone.
Secondly, I think we've gotten everything except in
the area of what the offense is - we've removed sexual
orientation to address that question.
SENATOR ELLIS asked for the rationale behind removing sexual
orientation.
CHAIR SEEKINS said it was removed to get support for the bill.
He pointed out that sexual orientation is not mentioned anywhere
else in statute and he is not sure that subject should be
addressed for the first time in this legislation.
SENATOR ELLIS asked if hate crimes based on sexual orientation
would not be addressed.
CHAIR SEEKINS said sexual orientation would be on par with
anything other than what is addressed in the bill.
SENATOR OGAN said he has heard privately from pastors that they
are worried that if they quote at a church service certain
passages of the Bible that deal with sexual orientation, they
could be charged with some sort of crime.
CHAIR SEEKINS said he would bring that up for discussion when he
finished explaining the bill. He continued:
The next area that I went into was in - speaking again
with some of the people who I've been working with,
they've said that community service for a juvenile -
we yesterday passed a bill that on a third offense for
driving under the influence of alcohol a juvenile had
a 60 to 80 hour community work service schedule. What
we've suggested in here was 60 to 80 hours [page 6,
subsection (6)]. We would just reduce it from 100
hours flat to 60 to 80 hours to give the judge some
discretion and then farther down, in paragraph (b), it
states that the court would allow the minor's
successful participation in the diversity tolerance
program to count toward the minimum hours of community
work service. If they go to the diversity class, that
counts against their community service time.
And then finally, at the very end, I believe on page
11, we just put ... a four-hour sideboard on the
length...[page 10, lines 29 and 30]. The program
should be designed to be completed in four hours or
less - that's the only change that we made.
SENATOR LINCOLN asked Chair Seekins if the diversity tolerance
program cannot be more than four hours.
CHAIR SEEKINS said he was just trying to put a sideboard on the
timeframe and would not object to an eight-hour program.
SENATOR LINCOLN explained that is why she put language in the
bill allowing the department to develop these programs.
CHAIR SEEKINS said he was trying to provide some direction about
how comprehensive the program should be.
SENATOR LINCOLN did not think four hours was long enough.
SENATOR OGAN said he understands why the sponsor wants a
diversity training program and that he would like to think such
training would have a positive effect but he doesn't believe the
prejudices that people are raised with are likely to change with
such training.
SENATOR LINCOLN said she is uncomfortable with a four-hour
program. She was thinking the time spent in a tolerance program
would count toward the community service hours. She said she is
unaware of any program that will reach everyone but was hoping
the program would spark some good in a person and she doubts
that can be done in a four-hour time period.
CHAIR SEEKINS said he would agree to change the requirement to
an eight-hour program. He said he trusts the Legislature more
than he trusts the bureaucracy to set those limits.
SENATOR LINCOLN said she also does not like the "or less"
language because the requirement could be as short as a 30
minute program.
CHAIR SEEKINS said he would agree to putting a minimum and
maximum time limit in the bill.
SENATOR THERRIAULT said it would still be up to the department
to develop the program; the bill only contains the upper time
limit. He did not think the department would design a 30-minute
program.
SENATOR LINCOLN said she preferred that no time limit be placed
in the bill and thinks the department will have to do some
research and identify what programs work.
SENATOR FRENCH commented that he was thinking the program would
be designed to do some indoctrination one day, let the person
sleep on it and do more indoctrination the next day. He felt an
overnight reflection might stimulate greater understanding and
was thinking of a 16-hour program.
SENATOR LINCOLN said that is why she suggested no less than
eight hours.
SENATOR OGAN felt the public humiliation suffered by the
perpetrators of the paintball incident was probably more
effective in changing behavior than any class.
SENATOR THERRIAULT agreed with Senator French that time for
reflection could be useful but that could be provided with a
four-hour program for two days each, and although he is not
suggesting a specific number of hours, he sees the need for a
cap. He thought that to some extent, public condemnation keeps
society on track. He said he was unaware of version S, which
does not cover sexual orientation. He questioned how a 20-year
old who dates 15-year olds would be considered under the bill
and cautioned the need to be careful.
CHAIR SEEKINS said he did not want to open that "Pandora's Box"
and was only trying to get support for the bill, which required
that topic be left out. He then said he had no problem with
requiring a two-day program with a minimum of six hours and a
maximum of 12. He said he would prefer to use public humiliation
but does not know how to do that under the law.
SENATOR THERRIAULT said he believes the Legislature needs to
give the agency that designs the training program some latitude
to put together a program that works and would not want to
require the agency to split the training program over a two-day
period.
SENATOR FRENCH suggested putting a cap at 12 hours so that the
program cannot be completed in one day. He then so moved.
CHAIR SEEKINS announced that without objection, the motion
carried.
SENATOR ELLIS questioned whether the committee had adopted
version S.
CHAIR SEEKINS clarified that it had not and moved to adopt
version S as the working version before the committee.
SENATOR ELLIS objected and said he is opposed to the deletion of
sexual orientation because he believes it would be easy to get a
standard definition of sexual orientation.
TAPE 04-68, SIDE A
SENATOR ELLIS maintained that to exclude certain people is
wrong.
SENATOR LINCOLN said that while she appreciates the Chair's
effort to pass the bill out of committee, sexual orientation is
a term that has been used by programs elsewhere for hate crimes.
In addition, she has received letters supporting the inclusion
of sexual orientation in the bill. She agreed that sexual
orientation is not defined in statute at this time but said that
doesn't mean it can't be done. She said as the sponsor of the
bill, she believes it should remain in the bill because it has
widespread support.
CHAIR SEEKINS thanked Senator Lincoln but said a lot of work
would have to be done to include it and with it he could not get
support for the bill.
SENATOR OGAN said he is uncomfortable with adopting a new
committee substitute this late in the session.
CHAIR SEEKINS announced an at-ease.
CHAIR SEEKINS asked for a roll call vote on the motion to adopt
version S. The motion carried with Senators Therriault, Ogan
and Seekins in favor and Senators Ellis and French opposed.
CHAIR SEEKINS moved to adopt Amendment 1, to remove the word
"is" on line 24 of page 4. Without objection, the motion
carried.
CHAIR SEEKINS moved to adopt Amendment 2, to replace the number
"4" with the number "12" on page 10, line 30. He then announced
that without objection, Amendment 2 was adopted.
SENATOR LINCOLN asked if he intended to also delete the words
"or less".
For the purpose of clarification, CHAIR SEEKINS moved to
withdraw Amendment 2. The motion carried with no objection.
CHAIR SEEKINS clarified that Amendment 2 is to read as follows,
"to be completed in a maximum of 12 hours."
SENATOR OGAN raised a point of order and asked that the motion
to adopt Amendment 2 be rescinded.
SENATOR OGAN moved to rescind the committee's action on
Amendment 2. With no objection, Amendment 2 was before the
committee.
CHAIR SEEKINS moved to withdraw Amendment 2. Without objection,
Amendment 2 was withdrawn.
CHAIR SEEKINS moved to adopt Amendment 3, which would replace,
on page 10, line 30, the phrase "in four hours or less" with "in
a maximum of 12 hours."
SENATOR LINCOLN asked if that means the program must be designed
to be completed within 12 hours.
CHAIR SEEKINS asked if she wanted to include a minimum number of
hours. He then withdrew Amendment 3 and rephrased it to say "in
12 hours." There being no objection, Amendment 3 was adopted.
SENATOR FRENCH thanked committee members for their hard work on
this legislation and then moved CSSB 246(JUD) to its next
committee of referral with its attached fiscal notes.
CHAIR SEEKINS announced that with no objection, CSSB 246(JUD)
moved from committee.
SENATOR THERRIAULT asked that Mr. Hove distribute copies of
three memos that detail some of the problems with the passage of
HB 22 to members.
CHAIR SEEKINS then recessed the meeting to the call of the
chair.