Legislature(2003 - 2004)

04/26/2004 08:06 AM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           HB 188-BAIL SCHEDULE FOR SKIING VIOLATION                                                                        
REPRESENTATIVE MIKE  HAWKER, sponsor of  HB 188, told  members he                                                               
introduced this  legislation at the  request of the  downhill ski                                                               
industry in  Alaska. The  purpose of  HB 188  is to  complete the                                                               
implementation of  the Alaska  Ski Safety  Act (ASSA),  which was                                                               
passed  by the  Eighteenth  Legislature in  1994.  He noted  that                                                               
Representative  Kerttula   co-sponsored  this   legislation.  Her                                                               
father carried the original ASSA.                                                                                               
He  explained  that  in  1994,  the  fact  that  Alaskans  valued                                                               
downhill  skiing  as a  sport  and  had  a great  opportunity  to                                                               
develop  winter  tourism was  recognized.  The  ski industry  was                                                               
fairly unregulated but  as large ski areas  were being developed,                                                               
the  need  to   adopt  regulations  to  define   the  rights  and                                                               
responsibilities of  both the  operators and  users of  ski areas                                                               
became apparent.  The ASSA attempted to  do that and put  quite a                                                               
few  burdens on  the operators  of ski  areas, regarding  patrol,                                                               
safe ski lifts, etcetera, to make  the sport as safe as possible.                                                               
While  that  act recognized  the  duties  of operators,  it  also                                                               
required affirmative duties  of skiers by expecting  the skier to                                                               
know the  range of his  ability. However, a number  of particular                                                               
offenses that have presented sufficient  danger were not included                                                               
in the original  act, and the industry has asked  that it be able                                                               
to  fine   skiers  for  those   offenses  to  deter   unsafe  and                                                               
inappropriate  behavior.  He  emphasized  that HB  188  does  not                                                               
change any  of the aspects of  the ASSA. Its purpose  is to clear                                                               
up two problems.                                                                                                                
He explained the first addition as follows:                                                                                     
     The first section really makes  a change. It eliminates                                                                    
     this tag line that  says...a person...[that] violates a                                                                    
     provision   of  certain   sections  is   guilty  of   a                                                                    
     violation.  The  commissioner   of  the  Department  of                                                                    
     Natural  Resources  shall  authorize  people  to  issue                                                                    
     these  citations, but  another tag  line says  within a                                                                    
     ski area  over which  the state has  jurisdiction. Now,                                                                    
     that's become an  item of some confusion,  as we've had                                                                    
     a couple  of changes  in administration since  1994 and                                                                    
     with  people in  the Department  of Natural  Resources,                                                                    
     and the ski industry itself.                                                                                               
     As  I  talk  to  members of  the  ski  industry,  their                                                                    
     interpretation  of  that  original provision  was  that                                                                    
     that  was  there  to  distinguish  federal  from  state                                                                    
     jurisdiction so that  the state was not  trying to pass                                                                    
     laws or  regulations that would  be trying  to regulate                                                                    
     federal operations, which we  could not do. They wanted                                                                    
     to include  - within  state jurisdiction, it's  sort of                                                                    
     like  you   know,  saying,  there's  the   primary  law                                                                    
     enforcement  over the  area -  that would  include both                                                                    
     areas operated by  the state itself as  well as private                                                                    
     operations  operating  within  the  state  in  an  area                                                                    
     that's under state jurisdiction.                                                                                           
CHAIR SEEKINS clarified that state jurisdiction would apply on                                                                  
federal property unless otherwise provided.                                                                                     
REPRESENTATIVE HAWKER  said that  is what was  at issue:  who had                                                               
jurisdiction where.  He added that  this bill enjoys  the support                                                               
of both  the Department  of Natural Resources  (DNR) and  the ski                                                               
industry and both  want to make it very clear  that it applies to                                                               
any ski area, not only those operated by the State of Alaska.                                                                   
REPRESENTATIVE HAWKER continued:                                                                                                
     The second [change] was the  original ski safety act in                                                                    
     1994   contemplated  that   the  Supreme   Court  would                                                                    
     establish   a  bail   forfeiture  schedule   for  those                                                                    
     violations specified  in the section referenced  in the                                                                    
     bill  here,  which,  in  the  sponsor  statement,  I've                                                                    
     attached an addendum to that.  These are specific items                                                                    
     in Section  05.45.100 that  were identified  within the                                                                    
     bill as being  those activities that a  person could do                                                                    
     that  we   wanted  to  discourage  with   the  greatest                                                                    
     possible deterrents.  You'll find that in  the very end                                                                    
     of the  package there is  a letter from  the Eaglecrest                                                                    
     Ski Area, which summarizes at  page 2 the bail schedule                                                                    
     that  had  been  proposed  by  DNR  back  in  1994.  It                                                                    
     basically  moves   the  schedule  of  fees   for  these                                                                    
     violations  from  $50  to  $150   for  several  of  the                                                                    
     I want to  emphasize that none of  these violations for                                                                    
     which a  bail forfeiture schedule is  contemplated have                                                                    
     anything  to  do with  judgmental  calls  on a  skier's                                                                    
     ability  to ski.  These are  not  speeding tickets  for                                                                    
     skiing too fast. This is  not giving the ski patrol the                                                                    
     ability to  go out  there and  essentially be  a police                                                                    
     force on  the ski  slope but these  are items  that are                                                                    
     very  objectively  determined  -  having  a  collision,                                                                    
     leaving  someone  injured,  skiing in  a  closed  area,                                                                    
     skiing  or riding  lifts under  the influence  of drugs                                                                    
     and  alcohol, crossing  the track  of  an uphill  lift,                                                                    
     using  skis   without  stopping  devices   -  obviously                                                                    
     something could  become a  missile going  downhill, and                                                                    
     skiing in a closed area.                                                                                                   
     The Supreme  Court has also  - and in your  package are                                                                    
     two letters that are  particularly succinct about this,                                                                    
     and their  statement was quite simply  that the Supreme                                                                    
     Court does not believe  there is clear authorization in                                                                    
     the  statute to  establish  the bail  schedule. And  so                                                                    
     Section 2  gives very clear  and succinct  direction to                                                                    
     establish the bail forfeiture  schedule and, again, the                                                                    
     Supreme  Court  shall  establish  by rule  or  order  a                                                                    
     schedule  of  bail  amounts,  which  may  be  forfeited                                                                    
     without a court appearance for a violation of c or g.                                                                      
     The third  section follows up  that point of  without a                                                                    
     court  appearance  - I  mean  this  is not  a  criminal                                                                    
     activity;   this  is   just  something   you  want   to                                                                    
     discourage. The  penalty is only  - these  offenses are                                                                    
     classified as violations, which  are punishable only by                                                                    
     a small fine.                                                                                                              
     The third section of the bill  goes to the point of law                                                                    
     where these sort  of issues are dealt with  and this is                                                                    
     AS  12.25.180 and  190, which  are really  part of  the                                                                    
     arrest  and citation  section of  the Code  of Criminal                                                                    
     Procedure  where we  specifically  exempt any  citation                                                                    
     issued  under  the  ski  safety  act  from  having  the                                                                    
     requirement that an individual  appear in person should                                                                    
     they  forfeit  their  bail  on  this.  Other  areas  of                                                                    
     citations where  we've got bail schedules  in the state                                                                    
     that  are similar  are motor  vehicle citations  with a                                                                    
     bail  fine schedule,  fish and  game violations  with a                                                                    
     bail  schedule, obviously  the proposal  is to  add the                                                                    
     ski  safety   act.  We've  also   got  the   parks  and                                                                    
     recreational   facilities,   littering  citations   and                                                                    
     ...also the  Boating Safety  Act citations.  That third                                                                    
     section, again,  is specifically  saying that  when you                                                                    
     issue a  citation here, the  citation does not  have to                                                                    
     have a  written promise to  appear in court  since it's                                                                    
     at best addressed only by a fine if offered.                                                                               
     We  do  have  available   today  to  present  both  the                                                                    
     Department of Natural  Resources and representatives of                                                                    
     the Alaska ski industry, should  you wish to query them                                                                    
     any, sir.                                                                                                                  
8:30 a.m.                                                                                                                       
SENATOR FRENCH asked if the ski industry could currently be                                                                     
issuing citations for each of the offenses if it wanted to.                                                                     
MR. HAWKER said his understanding is that under the existing                                                                    
structure, the violation schedule is punishable today by a $50                                                                  
fine. He  added that the  bill would authorize the  Supreme Court                                                               
to establish a bail schedule.                                                                                                   
SENATOR  FRENCH referenced  the bail  schedule in  the Eaglecrest                                                               
Ski Area letter and asked if  they are suggestions to the Supreme                                                               
MR. HAWKER said  that is his understanding and  that DNR proposed                                                               
that schedule  to the Supreme Court  in 1994 when the  court said                                                               
it had no authority to adopt it.                                                                                                
SENATOR FRENCH  expressed concern that  right now a  person could                                                               
be cited  for a $50 violation  and will lose the  lift ticket. He                                                               
believes  that  is  a  severe  enough penalty  for  many  of  the                                                               
CHAIR  SEEKINS  believed  the  proposed  bail  schedule  contains                                                               
ceilings for  the fines rather  than mandatory amounts.  He added                                                               
that many  fines are suspended  upon condition of  no recurrence.                                                               
He  believes the  point  of the  bail schedule  is  to provide  a                                                               
meaningful penalty to prevent people from endangering others.                                                                   
REPRESENTATIVE HAWKER  felt Chair  Seekins' analysis is  right on                                                               
point  and that  Commissioner Irwin  would support  that analysis                                                               
also. He pointed out there  is particular concern about skiing in                                                               
closed  areas,  therefore the  fine  needs  to be  sufficient  to                                                               
discourage  that  activity. If  an  area  was closed  because  of                                                               
avalanche danger,  that activity could  expose a large  number of                                                               
people to injury.                                                                                                               
CHAIR SEEKINS  asked about the  definition of "peace  officer" in                                                               
the bill.                                                                                                                       
REPRESENTATIVE  HAWKER  acknowledged  that section  is  confusing                                                               
because  peace  officers  are  not involved  in  ski  safety  act                                                               
activities;  that  act  applies  to ski  operators  and  DNR.  He                                                               
     If  you notice,  it moves  into Alaska  statute section                                                                    
     12, which is  the Code of Criminal  Procedure, and this                                                                    
     is  generically a  section excluding  certain citations                                                                    
     from having  this mandatory  requirement to  appear. In                                                                    
     this  context  the  word   'peace  officer,'  which  is                                                                    
     typically -  I guess the paragraph  is prefaced by...'a                                                                    
     person  cited  for  the  crime  shall  give  a  written                                                                    
     promise  to appear  in court  by signing  at least  one                                                                    
     copy  of  a  written  citation prepared  by  the  peace                                                                    
     officer'.  That  is  the general  rule  when,  in  this                                                                    
     state,  someone  has committed  a  crime  and is  being                                                                    
     cited by a police officer for it.                                                                                          
     Then the  next paragraph is where  it becomes operative                                                                    
     and that  is 'the written promise  requirement does not                                                                    
     apply to boating citations' and  all the rest of these.                                                                    
     The implication  that it involves a  requirement that a                                                                    
     peace officer issue  the citation is...not contemplated                                                                    
     or required under the ski  safety act. This is strictly                                                                    
     a  violation  activity  managed by  the  Department  of                                                                    
     Natural   Resources  and   folks   designated  by   the                                                                    
     commissioner to  be part of the  process, not involving                                                                    
     peace officers.                                                                                                            
CHAIR SEEKINS  indicated that several people  have inquired about                                                               
that   section  and   thanked  Representative   Hawker  for   the                                                               
explanation. He  then asked Representative  Hawker if  his intent                                                               
is  to create  a  more  serious deterrent  for  those people  who                                                               
knowingly put the  life and safety of other  individuals at stake                                                               
through bad practices on ski slopes.                                                                                            
REPRESENTATIVE  HAWKER said  that is  correct, within  the larger                                                               
context of promoting a vibrant downhill ski industry in Alaska.                                                                 
SENATOR OGAN  asked about places  like Hatcher Pass  where people                                                               
ski and snowmachine but there is no operator.                                                                                   
REPRESENTATIVE HAWKER answered the  definition section of the ski                                                               
safety act, which  is AS 05.45.200, specifically  provides that a                                                               
ski area  means downhill ski  slopes, trails or places  under the                                                               
control of  a downhill  ski area  operator. A  ski area  does not                                                               
include a cross-country ski trail,  even if owned by an operator.                                                               
HB  188  does not  affect  open  land  that is  not  commercially                                                               
developed as a downhill ski area.                                                                                               
CHAIR SEEKINS agreed with Senator  Ogan that people who put other                                                               
people's  lives   in  danger  on   unmanaged  slopes   should  be                                                               
SENATOR  OGAN  pointed out  that  the  state  does not  have  the                                                               
resources to pay for avalanche forecasting  but if he were a park                                                               
ranger he would hire an  avalanche expert. He felt that modifying                                                               
the  bill to  allow state  parks to  close, particularly  Chugach                                                               
State Park,  when hazardous  conditions exist  would be  wise. He                                                               
pointed out  that whenever a rescue  team is engaged in  a search                                                               
after an avalanche, 50 people's lives are put at risk.                                                                          
CHAIR SEEKINS took public testimony.                                                                                            
MR.  LARRY DANIELS,  ski area  general  manager, Alyeska  Resort,                                                               
stated  support  for HB  188.  He  said this  legislation  simply                                                               
completes  the 1994  ski safety  act as  originally contemplated.                                                               
The  ski safety  act has  been beneficial  over the  years as  it                                                               
specifies  both the  skiers and  operators' responsibilities.  HB
188 will  provide enforcement power for  the ski safety act.   He                                                               
described  some of  the  violations that  occur  and the  dangers                                                               
caused by those violations.                                                                                                     
MR. DAVID WILSON, mountain manager,  Alyeska Resort, told members                                                               
that Alyeska Resort  has kept violation records  for three years,                                                               
which show a decrease in the  number of violations cited. Four of                                                               
those violations  were very serious: collision,  jumping from the                                                               
chairlift,  ticket  fraud, and  skiing  in  a closed  area.  Most                                                               
citations are  issued for  skiing in closed  areas. In  the 2000-                                                               
2001 season,  DNR issued five  citations; in 2001-2002  it issued                                                               
one  citation.  He  emphasized  that  citations  are  not  issued                                                               
arbitrarily. They are used as deterrents.                                                                                       
SENATOR FRENCH asked  Mr. Wilson if the resort  has the authority                                                               
now to issue citations.                                                                                                         
MR. WILSON  said Alyeska  Resort notifies  DNR, which  issues the                                                               
SENATOR  FRENCH remarked  that HB  188 would  allow the  ski area                                                               
operator to  pick folks to  issue citations and asked  Mr. Wilson                                                               
if Alyeska Resort has discussed that possibility.                                                                               
MR.  DANIELS  replied that  Alyeska's  staff  would not  directly                                                               
issue citations.  They would take  recommendations to  DNR staff,                                                               
which would decide whether to issue the citations.                                                                              
CHAIR SEEKINS  affirmed that  Senator French's  interpretation is                                                               
correct  in that  the  bill  allows the  commissioner  of DNR  to                                                               
authorize individuals to issue citations.                                                                                       
REPRESENTATIVE  HAWKER  reminded  members  that  language  is  in                                                               
current statute.                                                                                                                
There being no further participants,  CHAIR SEEKINS closed public                                                               
SENATOR  OGAN  repeated  his belief  that  the  committee  should                                                               
consider including state park closures in the bill.                                                                             
CHAIR SEEKINS noted that would require a title change.                                                                          
SENATOR OGAN  said he would  only want  to make that  change with                                                               
the sponsor's concurrence.                                                                                                      
TAPE 04-52, SIDE B                                                                                                            
REPRESENTATIVE HAWKER  responded that  although he  feels Senator                                                               
Ogan's concern  is legitimate, he  would prefer to keep  the bill                                                               
as is.  He noted  this legislation is  specific to  organized ski                                                               
areas and the ski safety act and  he has not even looked into any                                                               
other statutes that apply to mechanized sports.                                                                                 
CHAIR  SEEKINS cautioned  that any  legislation that  pertains to                                                               
mechanized vehicles would entail a  great deal of public input so                                                               
he would  prefer not  to burden  HB 188  with that  discussion at                                                               
this late date in the session.                                                                                                  
SENATOR FRENCH commented  that he feels lukewarm  about this bill                                                               
if Alyeska  only issued six  citations in two years.  He believes                                                               
HB 188 is an attempt to fix something that is not broken.                                                                       
CHAIR SEEKINS announced  he would hold the bill  until the entire                                                               
committee is present.                                                                                                           

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