Panel reviews youth drinking, DUI bills
At a time when it is becoming increasingly clear state government resources are limited and facing ever-mounting pressure, the Legislature may look to the private sector rather than the bureaucracy to affect desired social policy.
The Law and Justice Interim Committee, comprised of members of both legislative chambers, met in Helena June 29-30 to consider a host of legislative proposals to further curb youth drinking and to reduce driving under the influence offenses.
One proposal to mandate adult beverage server training drew considerable interest from social reform activists as well as the hospitality business community.
An unofficial bill drafted at the request on Sen. Carol Juneau (D-Browning) would establish mandatory alcohol server training and licensing administered by the department of revenue but paid for by private enterprise.
Under the draft, businesses would have to devise and submit a server training plan for department approval that would assure servers are trained within 60 days of hire and annually thereafter, and maintain all employee training records.
The revenue department would be charged with setting standards for approval of privately provided training programs and would establish a program to train and certify trainers. Training curriculums would be reviewed and approved and participants tested under department guidelines.
Further, the draft called for trainers to charge fees determined by the department to in turn be conveyed to the department to cover its administrative expenses. If businesses were out of compliance, they would be fined $50 for each occurrence.
A written response to Sen. Juneau's bill draft from Liquor Division Administrator Shauna Helfert said the legislation needed some "technical amendments" to be "administratively sound."
Helfert said the division would need the equivalent of two and one-half full-time employees to administer the program and would need $250,000 the first year and $200,000 each year afterward to cover increased expenses. She suggested additional fees be charged licensees based on the number of servers trained, or charged to the trainees themselves.
Helfert submitted two optional bill drafts, the first of which provided an enforcement section outlining additional penalties and additional training certification and renewal fees which were not specified. The proposal would also require anyone seeking employment serving alcohol to be training certified prior to hiring and would be required to carry a certification card on their person when engaged in alcohol service.
The optional proposal called for the state to establish a training program, a database of all persons certified, and a process for approval of other privately provided programs which would require payment of additional annual approval fees. Further, it called for unspecified fines for violations plus suspension of server certification and possible revocation of certification, essentially barring the violator from working as an alcohol server.
Recertification wanted
Helfert's second optional bill draft provided for establishment licensees to pay the department a training fee based on an unspecified percentage of their annual license fee renewed annually in June. It also called for certified training of staff within 30 days of hire and recertification annually.
That option also called for establishment licensees, rather than servers, to face fines and license suspension and revocation for violations of training requirements.
A spokesperson for Mothers Against Drunk Driving testified in favor or mandatory training, stating it would save lives. A spokesman for the Montana Highway Patrol said the patrol supports the concept of server training but was interested in seeing the details of a final bill draft.
Testifying in support of server training but against parts of the DOR drafts was Ronna Alexander, representing convenience store owners. She said DOR and the administration was concerned over a server training bill in the 2009 Legislature because a fiscal note calculated its costs at $35,000, whereas the current draft proposal estimated an initial cost of $250,000 and ongoing annual costs of $200,000.
"We don't oppose a fair and workable bill,” she said, “but training needs to be widely available across the state.”
Alexander also objected to annual recertification when almost all other jurisdictions honor certificates for three years and Utah's is good for five. In addition, she said one standard training format may not be optimal, since there are already specific training regimens designed for specific environments such as off-premise sales versus on-premise.
"There are different ways to do it," she said. "More research is needed" to determine the best way.
Brad Griffin, speaking for the Montana Restaurant Association, said his group also supports server training conceptually.
He noted that a business coalition has trained 500 Montana servers in the last year primarily using the National Restaurant Association derived Serv-Safe program and whose trainer is also certified to teach the TIPS and RASS programs. However, making the training available in the state's rural and remote corners is expensive, he said.
"We are committed to training," Griffin said, "and the (original) bill draft is a good start." But the DOR proposal for annual certification is impractical and unduly burdensome, especially given high rates of turnover in the hospitality business, he said, as is the requirement for certification prior to hiring. "Certification within 60 days would be more reasonable," he said.
The proposal to pay the department a fee to approve the very model programs used to develop the state's own RASS training is ironic, Griffin said. And paying the department an additional fee when private trainers certify servers is also problematic, Griffin said, since the $40 currently charged barely covers current training expenses. "That would end our program," he said.
State program panned
Griffin said he saw no need for a state-run database on certifications. "Simply requiring certification would do it," he said.
"We want a good training program and we'll help you get it," Griffin concluded.
McKee Anderson of the Montana Food Distributors Association said he concurred with Alexander's and Griffin's testimony.
Neil Peterson testified on behalf of the Gaming Industry Association. In Montana, a liquor license is prerequisite to acquiring a gaming license.
"GIA supports server training but there is a better way to do it" than that outlined in the draft proposals, Peterson said.
Mark Staples, government affairs counsel for the Montana Tavern Association went next.
"We are proponents and support the concept," he said, "but not some of the specifics in this model.
"The owners and servers are already highly penalized" for serving violations, Staples said, "but what about the person who tries to induce the illegal behavior? They have no downside; if they fail, they walk. If our licensees fail . . . they get doubly penalized; their server gets fined and/or jailed and the licensee gets fined and his livelihood jeopardized.
"There is virtually no disincentive to the minor for using a false identification to try to foul up a legitimate business operation. There's no tension on their end of the rope. They can try it over and over again, until some licensee eventually makes a mistake.”
"Licensees are thoroughly vetted before they are allowed to get in (to the business) and get compliance-checked regularly, yet the 'bring your own bottle' clubs all over Helena and elsewhere in Montana are left alone. What are their hours? What are their training requirements? What is the crime (when they operate irresponsibly)? What license is jeopardized?
"Why just look at the folks who are trying to be law abiding?" Staples asked. "Let's look, too, where there are no laws or law enforcement is looking the other way?"
In response to a panel question, Staples suggested that attempting to buy alcohol with a false ID should be made a misdemeanor crime with the server allowed to confiscate a suspect ID and hold the minor for arrest. “It should be equivalent to an MIP in consequences for them”, he said.
Mistakes will happen
In response to another question, Staples pointed out even an owner most diligent in his responsible server training practices is punished when an employee is careless and makes a mistake. "If the server breaks the law, the business is jeopardized," he said. "If a licensee can be shown to have done all that can be expected, that should be a mitigating circumstance. We have one member who passed 14 compliance stings, then one server had a careless moment. The server punishment is relatively minor compared to the owner's."
After a lunch break, the committee went into executive session to take action on the server training bill proposals. The committee endorsed the concept of mandatory server training, but felt that the proposed particulars needed further development. Some expressed hesitation about a state-centered program, particularly in light of the projected $400 million deficit the upcoming Legislature will face. Those who spoke seemed to favor building upon both the public and private programs already operating.
Children testify
Earlier in the session, other alcohol related bill drafts were considered, including one to suspend a drivers license until age 18, or preclude gaining a license until age 18, for any youth convicted of being a minor in possession (MIP) of alcohol. Another would grant game wardens authority to issue MIPs.
The committee, after some members expressed reservations about the drivers license suspension bill's chances of passage, voted to move the proposed bill forward with the understanding that there will be ample opportunity to further amend it before its introduction and during the legislative process.
Granting game wardens authority to write MIP tickets was approved by the committee, as long as the ticketing officer was responsible for conducting all subsequent investigations and following through with the entire process.
Still another draft would give county government the authority to enact ordinances to penalize "social hosts" who host any function where minors consume alcohol.
Two groups of high school seniors testified in favor of the bill draft proposals as did representatives of MADD and the Highway Patrol. No one testified in opposition.
David Carter of the Yellowstone County Attorney's Office, testified that the committee ought to consider legislation to codify an "aggravated DUI" crime which would be imposed if a suspect refused a breath or blood test, was a high-BAC or a repeat offender. The aggravated status would carry higher fines, more jail time and longer license suspensions.
Attorney Art Lussee proposed a harsh new regimen of DUI penalties including increased fines, jail time, license suspensions, supervisory probation, vehicle forfeiture and so on. He also proposed a mandatory 10 days in jail for refusal to be breath or blood tested.
Mark Murphy, representing the Montana County Attorneys Association, testified in support of the proposals as did Chris Menard of Montana Youth Connections.
The committee also discussed two bill drafts dealing with DUI evidence and determination of impairment.
One draft would provide for on-call, around-the-clock judges to authorize search warrants to administer tests for blood alcohol tests. The judges would be housed in the Lewis and Clark courthouse, but available to law enforcement statewide.
Discussion centered on the potentially high price tag for the program, including the cost of hiring magistrates for the system. In addition, some questioned whether the new system would be abused – and not limited to DUI offenses as intended – when law enforcement needs warrants for other offenses.
Drug detection at issue
Another draft calls for designating any amount of a dangerous drug as impaired driving per se. The draft, based on an Arizona model, was supported by the Montana Highway Patrol and MADD.
However, others feared the law would impact those legally using medication. ACLU opposed the bill because it “casts too wide of a net” and didn't defined the difference between impairment and presence of drugs.
Yet another DUI-related bill request would increase the mandatory maximum penalty for DUI from six months to one year.
Other bill drafts include efforts to strengthen chemical dependency Assessment, Course and Treatment provisions and to eliminate the five-year “look-back” for DUI offenses.
The Law and Justice Interim Committee will convene again Sept. 1-2 (Wednesday and Thursday), when it will review these drafts again, and also begin review of bill drafts proposed by state agencies.