Legislature(2003 - 2004)

05/06/2003 03:02 PM House TRA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 65 - IMPORTING ALCOHOL TO DRY VILLAGE                                                                                      
CO-CHAIR MASEK  announced that the  next order of  business would                                                               
be HOUSE BILL  NO. 65, "An Act relating to  forfeiture of a motor                                                               
vehicle,  airplane,  or  vessel  for  illegal  transportation  of                                                               
Number 1134                                                                                                                     
REPRESENTATIVE  FATE  moved  to   adopt  the  proposed  committee                                                               
substitute (CS)  [Version H, labeled 23-LS0159\H,  Ford, 4/23/03]                                                               
as a work draft.  There  being no objection, Version H was before                                                               
the committee.                                                                                                                  
Number 1165                                                                                                                     
REPRESENTATIVE  BOB LYNN,  Alaska State  Legislature, sponsor  of                                                               
HB 65, provided the following testimony:                                                                                        
     Our Alaska villages  have a right to  determine if they                                                                    
     are dry or if they are  wet in so far as implication of                                                                    
     alcoholic beverages are concerned.   For those villages                                                                    
     that  have  opted to  be  dry,  bootleg implication  of                                                                    
     alcoholic  beverages in  the dry  villages  has been  a                                                                    
     continuing  problem  for  a  number  of  years.    This                                                                    
     situation flouts  the law and denigrates  the authority                                                                    
     of the  village officials.  This  legislation mandates,                                                                    
     after  due  process  of law,  vehicle  confiscation  of                                                                    
     vehicle used in bootleg operations.                                                                                        
     And I  might say this  bill has the direct  interest of                                                                    
     Governor Murkowski.  You may  remember during his state                                                                    
     of  the state  address,  way back  when,  to our  joint                                                                    
     session,  that this  was  a key  part  of his  message.                                                                    
     It's  also  a  part of  the  governor's  crime-fighting                                                                    
     package  that he  announced at  a press  conference, at                                                                    
     which I  was honored to be  a part.  I  believe that we                                                                    
     need  to   support  our  governor;   most  importantly,                                                                    
     though,  I think  we need  to support  the laws  of our                                                                    
     villages and  put teeth into  those villages'  laws, so                                                                    
     there will be  respect for the law, and  I believe that                                                                    
     at least  some of the  problems related to  alcohol may                                                                    
     be addressed.   I  also have a  letter of  support from                                                                    
     the  Alaska Association  of  Police  Chiefs, signed  by                                                                    
     Chief  Thomas Clemons,  which I'll  pass around  to the                                                                    
     committee.  We have  some members of the administration                                                                    
     here today  who will  testify in  support of  this bill                                                                    
     and will  hopefully answer some  of the  more technical                                                                    
     aspects of the bill.                                                                                                       
Number 1277                                                                                                                     
LINDA   WILSON,   Deputy   Director,  Public   Defender   Agency,                                                               
Department  of Administration,  testified  that  the proposed  CS                                                               
would probably  have no  significant change  on the  fiscal note.                                                               
She said that she didn't have a  position one way or the other on                                                               
HB 65, although  she believes that it  provides consideration for                                                               
the due  process of law  for people with snow  machines, vessels,                                                               
or boats  regarding mandatory  forfeiture.   She said  the agency                                                               
represents  indigent clients  charged  with bootlegging  offenses                                                               
and  that representing  someone  who owns  an  airplane would  be                                                               
unlikely.  The number of cases  that the agency would carry under                                                               
this  bill would  probably be  fairly  limited, considering  that                                                               
clients generally don't have many  assets.  Ms. Wilson added that                                                               
the proposed CS was an improvement upon HB 65.                                                                                  
Number 1350                                                                                                                     
MATTHEW   C.   LEVEQUE,   Lieutenant,  Alaska   State   Troopers,                                                               
Department of  Public Safety (DPS),  testified that  DPS supports                                                               
HB 65 and offered to answer questions.                                                                                          
Number 1378                                                                                                                     
MATT  FELIX, National  Council on  Alcohol  and Drug  Dependence,                                                               
testified that  the council,  having been  in Juneau  since 1965,                                                               
was one of the oldest nonprofit  corporations in Juneau and was a                                                               
prevention  agency.   He said  that when  he had  previously been                                                               
director of  the state's Alcohol  and Drug Abuse Division  in the                                                               
1980s, he  had worked with  the legislature to  pass local-option                                                               
alternatives at the request of  a number of incorporated and non-                                                               
incorporated villages.   He stated that  the legislation allowing                                                               
for villages  to vote to stay  dry or wet was  requested by rural                                                               
Alaskans.  He  said the desire was that this  type of legislation                                                               
would be enforceable  and that its creation  would not contribute                                                               
to  there being  a  profitable situation  for  bootleggers.   Mr.                                                               
Felix strongly  urged the committee  to pass HB 65  and mentioned                                                               
that two major  research projects on the effects of  going dry in                                                               
rural Alaska have been conducted  and that those studies had been                                                               
very positive.                                                                                                                  
CO-CHAIR  MASEK  ascertained that  there  was  no further  public                                                               
testimony and then closed public testimony.                                                                                     
REPRESENTATIVE  FATE  asked  whether a  description  of  "illegal                                                               
transportation" existed in regulation or in law.                                                                                
Number 1520                                                                                                                     
ANNE  CARPENETI,  Assistant   Attorney  General,  Legal  Services                                                               
Section  - Juneau,  Criminal Division,  Department of  Law (DOL),                                                               
testified  that the  division  supports HB  65  and answered  the                                                               
previous question by  suggesting that it would  be interpreted as                                                               
transportation and violation  of the local option  law or another                                                               
provision   in  Title   4.     She   then   said  that   "illegal                                                               
transportation"  would be  transportation  and  violation of  the                                                               
local-option law,  or transportation of alcohol  for sale without                                                               
a license, under  Title 4.  She commented that  she was trying to                                                               
imagine all  of the violations under  law; she said the  main one                                                               
would be transportation  in violation of Title  4 [AS 04.11.499],                                                               
the local-option law, which this bill mainly addresses.                                                                         
REPRESENTATIVE FATE  referred to an  instance he'd read  about in                                                               
which an airplane  was carrying [a large] amount of  alcohol to a                                                               
dry area  in rural Alaska.   There was an attempt  to forfeit the                                                               
aircraft  due to  the claim  of bootlegging,  and this  coincided                                                               
with the claim  that the alcohol was the man's  personal stock of                                                               
liquor.      Representative   Fate   asked,   "How   is   illegal                                                               
transportation  termed,   outside  of   going  to   an  expensive                                                               
litigation process?"                                                                                                            
MS. CARPENETI  replied that  in this  particular case,  a factual                                                               
analysis  would be  necessary to  determine where  he was  going,                                                               
what the local options were  in that particular community, and if                                                               
he  was prosecuted  for violation  of the  local options  - which                                                               
would require proof beyond a  reasonable doubt of having violated                                                               
the local-option  law -  and that  then the  state could  ask the                                                               
court for forfeiture.                                                                                                           
REPRESENTATIVE  KOOKESH asked  for  clarification  of the  phrase                                                               
"where he  was going," explaining  that if one was  in Fairbanks,                                                               
planning  to go  to a  dry region,  "where he  was going  doesn't                                                               
matter until he gets there."                                                                                                    
MS. CARPENETI responded, "If he was  on his way, and stopped in a                                                               
dry village  that had a  local option, ...  if he were  parked in                                                               
Fairbanks,  I don't  think  there  would be  a  violation."   She                                                               
thanked    Representative    Kookesh    for    suggesting    that                                                               
REPRESENTATIVE  OGG  asked what  would  happen  in situations  in                                                               
which commercial  planes flying to  both wet and dry  areas might                                                               
stop in those areas and  stay overnight, resulting in there being                                                               
something on the plane that would violate the local dry law.                                                                    
MS.  CARPENETI  replied  that  in   a  circumstance  in  which  a                                                               
commercial airplane  was traveling from place  to place, carrying                                                               
cargo,  nothing would  happen  to  the person  in  charge of  the                                                               
aircraft.   She  said that  depending  on the  local option,  the                                                               
person  sending it  would be  in violation  of the  law, assuming                                                               
that it got to a village  that had adopted a local option against                                                               
the sale  or possession, but  it wouldn't  be a violation  of the                                                               
law if it was contained in the airplane as unloaded cargo.                                                                      
REPRESENTATIVE  OGG asked  about a  passenger on  that plane  who                                                               
would take luggage into the area.                                                                                               
MS.  CARPENETI  said  this  would   depend  upon  the  facts;  to                                                               
prosecute a person  for violation of a local  option, there would                                                               
have  to  be some  culpable  mental  state  of  the person.    If                                                               
something  happened   just  "by  accident"  because   of  weather                                                               
considerations, she didn't think prosecution would be brought.                                                                  
REPRESENTATIVE OGG  asked who would  be called upon to  prove the                                                               
[culpable] mental state.                                                                                                        
MS. CARPENETI answered  that the state would have  to first prove                                                               
that  violation of  the law  was  beyond a  reasonable doubt  and                                                               
then, in  terms of the  forfeiture, it would be  by preponderance                                                               
of the evidence.  Ms. Carpeneti said she should double check.                                                                   
REPRESENTATIVE  OGG said  that in  some instances,  the party  in                                                               
question would be the owner.                                                                                                    
Number 1760                                                                                                                     
MS. CARPENETI  asked if he  was referring to subsections  (e) and                                                               
(f),  and if  so,  explained that  those  subsections modify  the                                                               
remission  provisions in  the forfeiture  law  for violations  of                                                               
Title 4,  and that  a remission is  when a co-owner  of a  car or                                                               
vehicle, who  hasn't been involved in  the illegal transportation                                                               
of alcohol,  goes to the  court and  says, "Judge, I  didn't have                                                               
anything to do with this violation.   It's my car too.  I want it                                                               
back so I can  use it.  It's not fair for me  to lose my interest                                                               
in this car."  She  indicated this toughening-up of the remission                                                               
provisions allows  forfeiture in cases  when a co-owner  may know                                                               
that his/her  co-owner is  violating the law  and knows  that the                                                               
vehicle  is being  used for  illegal  acts and  doesn't stop  it.                                                               
Under the forfeiture  provision, that person would have  to go to                                                               
the  judge  and  say,  "Not  only  did  I  not  know  about  this                                                               
particular violation, but I had no  reason to know about it and I                                                               
had  no reason  to know  that  this person  had been  bootlegging                                                               
Number 1808                                                                                                                     
CO-CHAIR  HOLM  referred to  forfeiture,  saying  that he  had  a                                                               
problem with the  word "reputation" [in subsections  (e) and (f)]                                                               
and asked, "At what point in  time does the forfeiture occur, and                                                               
then at what point in time  does the remission of that forfeiture                                                               
occur?"   He  said  that  when items  are  being  held for  court                                                               
purposes, many  times those items are  held for years as  part of                                                               
the court's  process and  need for  evidence, before  those items                                                               
are  returned.    He  expressed   his  concern  for  "evidentiary                                                               
holding," whether it was a car  or a snow machine, and asked, "If                                                               
we're  going to  allow somebody  to  have the  remission of  that                                                               
forfeiture, what  kind of  timing do  we have here?   Do  we have                                                               
whatever the court  deems is a reasonable time, or  is there some                                                               
mechanism  whereby, if  it's shown  that a  person doesn't  know,                                                               
then it's an immediate remission of that forfeiture?"                                                                           
MS. CARPENETI responded that HB  65 doesn't change the provisions                                                               
of the law set in  statute regarding the procedure for forfeiture                                                               
of  a car,  boat, or  airplane.   She explained  that the  vessel                                                               
would  be seized  and statute  requires that  notice be  given to                                                               
owners or  others who  have potential interest  in that  piece of                                                               
property, including  a bank with a  loan on it, or  the spouse of                                                               
the person who  has been charged or convicted.   At that point, a                                                               
hearing is set up on the  forfeiture and the person who claims an                                                               
interest has  a chance to  give his/her side  of the story.   She                                                               
said that  banks or spouses  may not have  any reason to  know of                                                               
certain situations.                                                                                                             
CO-CHAIR HOLM asked again about the timeframes involved.                                                                        
MS. CARPENETI replied that it's all set out in AS 04.16.220(e).                                                                 
REPRESENTATIVE  FATE  said,  "Once  again,  there's  no  aviation                                                               
provisions in  the event  that local option  areas overlap."   He                                                               
said  that in  the  worst-case  scenario, if  there  was a  local                                                               
option that  was dry and  a local option  that was wet,  the most                                                               
restrictive  would  dominate,  meaning that  in  the  overlapping                                                               
areas, the  areas wanting to  be wet would  then have to  go dry.                                                               
He asked if  there was any mediation involved so  that the people                                                               
who voted for  that area to be  wet would not have  that right be                                                               
MS. CARPENETI said this was  an interesting question and that the                                                               
reason  this was  proposed  was because  when  local options  are                                                               
overlapping, statutes  currently provide  that the  boundaries go                                                               
back to the  actual village.  She said the  division just learned                                                               
this because somebody  was violating both local  options, and the                                                               
law  indicates  that  with  overlapping  options,  the  five-mile                                                               
boundary  no  longer applies  and  "you  go  back to  the  actual                                                               
village."   She  said the  division  was trying  to address  that                                                               
situation, and when this amendment  was originally suggested, the                                                               
suggestion was  for the least  restrictive option to apply.   She                                                               
stated that  the sponsor  preferred the  application of  the more                                                               
restrictive option.                                                                                                             
REPRESENTATIVE FATE stated  that he had a  problem with statutes'                                                               
taking  away  something  that people  had  voted  into  existence                                                               
unless it was at  least mediated.  He said he  also had a problem                                                               
with  the word  "reputation"  because a  reputation is  sometimes                                                               
earned but just as often is not,  and that the use of the word in                                                               
law may undeservedly "violate [an individual's] record".                                                                        
Number 2127                                                                                                                     
MS. CARPENETI responded that the  bill does provide for some sort                                                               
of forum to  arbitrate the boundaries.  She said  that in current                                                               
law, the Alcoholic  Beverage Control Board ("ABC  Board") has the                                                               
authority to  alter boundaries under some  circumstances and that                                                               
this allows for the ABC Board  to adjust the boundaries for these                                                               
overlapping conditions.   She said  that "reputation"  applies to                                                               
remission, not  to whether  a person is  guilty of  violating the                                                               
title.   She  said she  believed the  purpose was  "to not  allow                                                               
somebody who's  a co-owner of a  vehicle to close their  eyes and                                                               
say, 'Gee whiz, I want my car  back because I didn't know that he                                                               
was going  to go out that  night and bootleg all  this alcohol in                                                               
violation of the local option.'"                                                                                                
MS.  CARPENETI  continued  that  it only  refers  to  a  co-owner                                                               
getting  his/her  interest  back,  and  that  it  makes  it  more                                                               
difficult for that  owner to get his/her  interest back regarding                                                               
a  vehicle  that has  been  used  to  violate the  local  option,                                                               
because the co-owner  has to show that he/she  was truly innocent                                                               
by  indicating that  it was  unknown that  anything was  going to                                                               
happen on  an actual  occasion and  that there  was no  reason to                                                               
know that this  other person had violated the law  in the past or                                                               
was a known bootlegger.                                                                                                         
REPRESENTATIVE  FATE  asked  if  the ABC  Board's  authority  was                                                               
exercised after the fact and not before.                                                                                        
MS. CARPENETI asked, "After the fact of what?"                                                                                  
REPRESENTATIVE FATE explained that if  this law were to pass, the                                                               
gray  area, the  overlapping options,  would precipitate  the ABC                                                               
Board's  redoing of  the boundaries.   The  violation would  have                                                               
already  taken  place because  of  the  most restrictive  option,                                                               
before the  ABC Board reforms  the boundaries.   He said  that if                                                               
every time there's an overlap,  the ABC Board redoes the boundary                                                               
so  that the  problem is  avoided,  then Ms.  Carpeneti would  be                                                               
correct.    But  ordinarily,  the  overlapping  boundaries  would                                                               
precipitate a  violation because of the  most restrictive option,                                                               
and at that point,  the ABC Board redoes the boundary  - so it is                                                               
after the fact of a violation that has already occurred.                                                                        
MS. CARPENETI said  that in this instance, this had  not been the                                                               
DOL's suggestion, so she directed  concern for "most restrictive"                                                               
rather than "least restrictive" to the sponsor of HB 65.                                                                        
Number 2252                                                                                                                     
CO-CHAIR  MASEK  indicated that  due  to  remaining questions  on                                                               
HB 65, her recommendation was to hold the bill over.                                                                            
REPRESENTATIVE LYNN said  valid concerns had been  brought up and                                                               
he would continue to work with the DOL to resolve those issues.                                                                 
REPRESENTATIVE KOOKESH suggested that  the sponsor reconsider the                                                               
use of the word "may" on page  3, line 24, and the word "village"                                                               
on line 27.  He referred to  a dry community in his district with                                                               
a population of  2,500 people, saying that  the interpretation of                                                               
a village should be something  different than having a population                                                               
of 1,000 people.                                                                                                                
REPRESENTATIVE LYNN  asked where a definition  of "village" could                                                               
be found in statute.                                                                                                            
MS. CARPENETI said she could access that information.                                                                           
REPRESENTATIVE OGG  commented that  the law presently  offers the                                                               
option, but with  [HB 65] forfeiture would become  mandatory.  He                                                               
wondered whether  having the option  had decreased the  amount of                                                               
bootlegging and  if changing to  mandatory would likely  effect a                                                               
TAPE 03-20, SIDE B                                                                                                            
Number 2375                                                                                                                     
REPRESENTATIVE LYNN said  he didn't know the  answer, but assumed                                                               
that if  the village had  voted to go  dry, there must  have been                                                               
some  amount of  reduction involved.    He said  he assumed  that                                                               
having a  law by which a  vehicle may be confiscated  would deter                                                               
even  more  people.    He commented  that  there  are  tremendous                                                               
alcohol problems  in the villages  and this includes some  of the                                                               
military population who reside in the villages.                                                                                 
REPRESENTATIVE OGG  said that if a  village goes dry, there  is a                                                               
definite  impact and  "that's when  bootlegging starts  to become                                                               
something."  He  asked whether having the  more permissive option                                                               
of confiscating a vehicle had caused a decrease in bootlegging.                                                                 
REPRESENTATIVE LYNN responded,  "I don't know," but  said that in                                                               
cases like  this, it's better to  tighten the law because  of the                                                               
problems "out there."                                                                                                           
REPRESENTATIVE OGG  questioned the value  if it doesn't act  as a                                                               
REPRESENTATIVE  LYNN replied  that  when there  are laws  against                                                               
anything, there  is a consideration  of two points,  the punitive                                                               
action or the  action to deter.  He suggested  that this argument                                                               
could be applied  to the death penalty as well  as being applied,                                                               
to a lesser degree, in this case.                                                                                               
CO-CHAIR MASEK announced  that HB 65 would be held  over in order                                                               
to address questions that had been brought up by members.                                                                       

Document Name Date/Time Subjects