BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 45 (Hill)
As Amended June 7, 2012
Hearing Date: July 3, 2012
Fiscal: Yes
Urgency: No
RD
SUBJECT
Charter-Party Carriers of Passengers: Alcoholic Beverages: Open
Containers
DESCRIPTION
Existing law, the Passenger Charter-party Carriers' Act,
provides that drivers of any limousine for hire operated by a
charter-party carrier of passengers (carrier) under a valid
certificate or permit must comply with certain requirements with
respect to passengers under 21 years of age and alcoholic
beverages, as specified.
This bill would repeal those provisions and instead require the
chartering party making a reservation to designate a "designee"
(a chaperone), as defined, to be present on any party bus or
limousine if (1) their party will include a person who is under
21 years of age and (2) alcohol will be on that bus during the
provision of transportation services. This bill would impose
certain responsibilities and liabilities upon the designee,
driver, and carrier to ensure that a person under 21 years of
age does not consume alcohol.
This bill would also impose specified responsibilities upon the
driver if at the time of making the reservation the chartering
party reports that no one under 21 will be present but that
alcohol will be provided, or that persons under 21 will be
present but that alcohol will not be provided.
Additionally, the bill would impose specified penalties for
failure to comply with certain requirements.
(more)
AB 45 (Hill)
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BACKGROUND
In February 2010, 19 year-old Brett Studebaker crashed into a
sound wall on Highway 101 near San Mateo after his friend's 21st
birthday celebration aboard a charter bus. His blood alcohol
level was more than three times the legal limit. In response to
that incident, this bill would enact the Brett Studebaker Law in
order to close an apparent loophole in existing law relating to
party buses.
Current California law, the Passenger Charter-party Carriers'
Act, imposes certain requirements on the driver of any limousine
for hire operated by a charter-party carrier to comply with
prescribed requirements relating to alcoholic beverages. These
include ascertaining whether any passenger is under the age of
21 years, reading to the passenger a statement that the
consumption of any alcoholic beverage in the vehicle is
unlawful, and requiring such a passenger to sign the statement.
Under that act, if a passenger who is under 21, after signing
the statement, is found to be, or to have been, consuming any
alcoholic beverage during the course of the ride, the contract
of hire is immediately terminated and the driver must return the
passenger to the point of origin. The act also subjects the
carrier to specified civil penalties, based on the number of
offenses, and allows for the conviction of a driver, or any
officer, director, agent, or employee of the carrier for
violations of the Vehicle Code that prohibits storage of an
opened container of an alcoholic beverage in a motor vehicle.
Notably, California law does not appear to include party buses
under these requirements.
In place of those provisions of law, this bill would, instead,
require the party making a reservation for a party bus or
limousine to designate a chaperone, as defined, to be present on
any party bus or limousine if (1) their party will include a
person who is under 21 years of age and (2) alcohol will be on
that bus during the provision of transportation services. The
bill would impose certain responsibilities and liabilities upon
the designate chaperone (designee), driver, and carrier to help
ensure that a person under 21 does not consume alcohol on the
party bus or limousine. The bill would also provide separate
responsibilities for the driver if the chartering party reports
that no one under 21 will be present but that alcohol will be
provided, or vice versa. Additionally, the bill would impose
specified penalties for failure to comply with certain
provisions.
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CHANGES TO EXISTING LAW
Existing law provides that any person under the age of 21 years
who has any alcoholic beverage in his or her possession on any
street or highway or in any public place or in any place open to
the public is guilty of a misdemeanor and shall be punished by a
fine or community service, as specified. Existing law increases
the punishment on subsequent violations. (Bus. & Prof. Code
Sec. 25662(a).)
Existing law prohibits any driver or passenger from drinking in
a motor vehicle upon a highway. (Veh. Code Sec. 23221.)
Existing law provides that it is illegal for a driver to possess
an open container containing any alcoholic beverage while in a
motor vehicle upon a highway or on any lands, as described, and
that it is illegal for a registered owner of a vehicle to store
an open container in a motor vehicle, unless it is kept in the
trunk of the vehicle (Veh. Code Secs. 23223, 23225.)
Existing law provides that the prohibitions against drinking an
alcoholic beverage or driving with an open container do not
apply to passengers in any bus, taxicab, or limousine for hire
licensed to transport passengers, except as specified below.
(Veh. Code Sec. 23229.)
Existing law provides that the prohibitions against drinking an
alcoholic beverage or driving with an open container do apply to
passengers of a charter-party carrier of passengers that
operates a limousine for hire when the driver of the vehicle
transports any passenger under age of 21, unless those
containers are kept in a locked utility compartment within the
area occupied by the driver and passengers. (Veh. Code Sec.
23229.1.)
Existing law provides that any person who sells, furnishes,
gives, or causes to be sold, furnished, or given, a person under
21 years of age an alcoholic beverage is guilty of a
misdemeanor. (Bus. & Prof. Code Sec. 25658(a).)
Existing law , the Passenger Charter-party Carriers' Act,
authorizes the California Public Utilities Commission (CPUC) to
regulate charter-party carriers of passengers, defined to mean
persons engaged in the transportation of persons by motor
vehicle for compensation on a prearranged basis over any public
highway in California (Pub. Util. Code Sec. 5351 et seq.)
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Existing law provides that charter party carriers must operate
on a prearranged basis in California and defines prearranged to
mean that the transportation of the prospective passenger was
arranged with the carrier by the passenger, or a representative
of the passenger, either by written contract or telephone.
(Pub. Util. Code Sec. 5360.5.)
Existing law requires the driver of any limousine for hire
operated by a charter-party carrier of passengers under a valid
certificate or permit to do all of the following:
ascertain whether any passenger is under the age of 21 years;
read to any passenger under 21 years of age a specified
statement that notifies the passenger, among other things,
that the consumption of any alcoholic beverage in the vehicle
is unlawful and that, if during the course of the ride any
minor is found to be, or to have been, consuming any alcoholic
beverage, the contract will be terminated and the customer
will be brought back to the point of origin of the ride;
require every passenger under the age of 21 years to sign the
statement to be retained by the limousine operator for the
period required by the commission; and
immediately terminate the contract of hire and return the
passengers to the point of origin of the ride if any minor
passenger, after signing the statement above is found to be,
or to have been, consuming any alcoholic beverage during the
course of any ride subject to this section. (Pub. Util. Code
Sec. 5381.1(a).)
Existing law provides that any failure of a driver of a
limousine to comply with the above requirements that results in
the conviction of the driver of a violation of Section 23225 of
the Vehicle Code which prohibits the storage of alcohol in a
vehicle, shall be subject to the penalties prescribed in Section
5384.5, which include specified fines and revocation of the
carrier's permit. (Pub. Util. Code Sec. 5381.1(b).)
Existing law , in relevant part, provides that, notwithstanding
any other provision of law, the requirements of a limousine
driver under Section 5381.1 above do not apply to the driver of
any bus, taxicab, or van. (Pub. Util. Code Sec. 5381.1(c).)
This bill would repeal Section 5381.1 of the Public Utilities
Code and instead enact the following requirements and
liabilities relating to under-age drinking on charter party
carriers.
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This bill would require the chartering party, at time
transportation service is prearranged or the contract of
carriage is made, to disclose to the charter-party carrier of
passengers whether both of the following are true:
alcoholic beverages will be served by the chartering party or
be transported in the passenger compartment of the vehicle
during transportation; and
a member of the party to be provided with transportation
services will be under 21 years of age.
This bill would provide that if both of the above factors are
met, the charter-party carrier, at the time transportation
services are arranged, shall notify the chartering party of the
following:
a designee, as specified, shall be present whenever persons
under 21 years of age who are not accompanied by a parent or
legal guardian are being transported;
the designee shall ensure compliance with all laws prohibiting
the consumption of alcoholic beverages by persons under 21
years of age who are members of the party and are not
accompanied by a parent or legal guardian;
the designee shall read a specified statement to each
passenger in the party who is under 21 years of age;
the designee shall notify the driver of the vehicle if, at any
time during the trip, a passenger in their party who is under
21 years of age is consuming or has consumed alcoholic
beverages;
the designee shall be responsible for any personal injury or
property damage that is proximately caused by the consumption
of alcoholic beverages by a person under 21 years of age while
being supplied with transportation services; and
if a trip is terminated because of the consumption of
alcoholic beverages by a person under 21 years of age that is
a member of their party, the designee's responsibility for
that minor, and for any personal injury or property damage,
shall continue until that minor is returned safely to his or
her home or entrusted into the care of his or her parent or
legal guardian.
This bill would require the charter-party carrier to inform the
driver of the vehicle that alcohol will be present and that
there will be persons under 21 years of age present during the
provision of transportation services and the name of the
designee.
AB 45 (Hill)
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This bill would require the driver of the vehicle to obtain the
designee's signature or initials on a written form indicating
the designee's acknowledgment and agreement to specified
information, including, among other things:
the designee is responsible for ensuring compliance with all
laws prohibiting the consumption of alcoholic beverages by
persons under 21 years of age who are members of the party and
are not accompanied by a parent or legal guardian;
the designee is legally responsible for any personal injury or
property damage that is proximately caused by the consumption
of alcoholic beverages by a person under 21 years of age while
being supplied with transportation services; and
if the trip is terminated for under-age drinking, the
designee's responsibility for that minor, and for any personal
injury or property damage, continues until that minor is
returned safely to his or her home or entrusted into the care
of his or her parent or legal guardian.
This bill would require the designee to be a passenger of the
vehicle during the provision of transportation services and be
responsible for the conduct of all persons in the vehicle who
are members of the party who are under 21 years of age and who
are not accompanied by a parent or legal guardian.
This bill would provide that the designee shall ensure
compliance with all laws related to the consumption of alcoholic
beverages by persons in the party who are under 21 years of age
and who are not accompanied by a parent or legal guardian.
This bill would provide that the designee shall ensure
compliance with all laws prohibiting the providing of alcoholic
beverages to minors by adult members of the party.
This bill would provide that if a person under 21 years of age
is accompanied by a parent or legal guardian, then the parent or
legal guardian shall ensure that person complies with laws
prohibiting the consumption of alcoholic beverages.
This bill would provide that the designee or, when present, the
parent or legal guardian, shall be responsible for any personal
injury or property damage that is proximately caused by a
violation of laws prohibiting the consumption of alcoholic
beverages by a person under 21 years of age when alcoholic
beverages are consumed during the provision of transportation
services.
AB 45 (Hill)
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This bill would state that the specified liabilities in the bill
do not preclude a designee from seeking indemnity from any
person, corporation, or other entity other than the
charter-party carrier of passengers, and do not relieve a
passenger of legal responsibility for his or her own conduct.
This bill would provide for a specified statement to be read to
passengers under 21 years of age.
This bill would provide that if, during the course of providing
transportation services, any person under 21 years of age is
found to be, or to have been, consuming any alcoholic beverage,
the designee shall immediately notify the driver and the driver
shall terminate the trip, as specified. This bill would provide
that should the designee, or when present, the parent or legal
guardian, fail to inform the driver, or if the designee, parent,
or legal guardian permits the drinking of alcoholic beverages by
persons under 21 years of age to occur in the vehicle, the
designee, parent, or legal guardian shall be subject to
prosecution for violation of subdivision (a) of Section 25658 of
the Business and Professions Code, which makes a person who
sells, furnishes, gives, or causes to be sold, furnished, or
given, a person under 21 years of age an alcoholic beverage
guilty of a misdemeanor.
This bill provides that if, at the time transportation is
prearranged with the charter-party carrier of passengers, the
chartering party discloses that alcoholic beverages will be
served or transported in the passenger compartment, but that no
member of the party is or will be under 21 years of age, the
driver shall verify the age of all passengers to be transported
if he or she has reason to believe that passengers under 21
years of age will be present during transportation services.
This bill would provide that if any passenger is under 21 years
of age, the failure to disclose the age of this passenger is a
violation of the contract of carriage, and transportation
services shall be terminated, unless all alcoholic beverages are
removed and locked in the vehicle trunk or other locked
compartment.
This bill would provide that if at the time transportation is
prearranged with the charter-party carrier of passengers, the
chartering party discloses that a member of the party is under
21 years of age, but that no alcoholic beverages will be served
or transported in the passenger compartment, the driver of the
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vehicle shall verify whether alcoholic beverages were brought
onto the vehicle if he or she has reason to believe that
alcoholic beverages are, or will be, transported in the vehicle
and accessible to passengers, and that transportation services
shall be terminated if alcoholic beverages were brought onto the
vehicle without prior notification to the charter-party carrier
of passengers, unless all alcoholic beverages are removed and
locked in the vehicle trunk or other locked compartment.
This bill would provide that any driver convicted of violating
Section 23223 of the Vehicle Code, which makes it illegal for a
driver to possess an open container in a motor vehicle, as a
result of his or her failure to comply with this bill shall, in
addition, be subject to specified civil penalties and state that
a third or subsequent conviction by the driver shall be
punishable as a misdemeanor.
This bill would create a new misdemeanor for any third or
subsequent violation of either the section relating to the
storage of an opened container of an alcoholic beverage, or the
section relating to the possession of an open container of an
alcoholic beverage by a driver of any vehicle operating under a
valid certificate or permit pursuant to the Passenger
Charter-party Carriers' Act.
This bill would also expand the application of specified
sections of existing law that are currently limited to
limousines to other charter-party carriers of passengers as
well.
This bill would define "chartering party" as the person,
corporation, or other entity that prearranges with a
charter-party carrier of passengers for transportation services
and "designee" as a person who is 25 years of age or older and
who is designated by the chartering party as being the person
responsible for compliance with specified requirements during
the provision of transportation services whenever persons under
21 years of age are to be transported unaccompanied by a parent
or legal guardian.
COMMENT
1. Stated need for the bill
According to the author:
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Charter-party carriers, such as limousines and charter buses,
are private vehicles for hire licensed and regulated by the
California Public Utilities Commission (CPUC) to transport
passengers on a pre-arranged basis. The charter-party
carriers are subject to the Public Utilities Code and CPUC
regulations.
In the 1980s, stretch limousines became very popular with
teenagers who would rent the vehicles and host underage
drinking parties. Consequently, in 1988Ý,] legislation was
passed to prevent limousines from being used as "booze
cruisesÝ.]" The new law placed the onus on the driver to
ensure that underage drinking was not taking place in the
vehicle.
When a limousine driver picks up passengers they are
requiredÝ,] under Section 5384.1 and 5384.5 of the Public
Utilities Code, to ascertain whether any passenger is under
21. If so, the driver must read a statement to that person
explaining that consumption of alcoholic beverages is illegal
and must have the passenger sign the statement. If after
signing the statement the underage passenger consumes any
alcoholic beverage while in the vehicle, the driver is
obligated to terminate the contract of hire and return the
passenger to the point of origin.
Under current law, the regulations only apply to limousine
drivers. This bill closes the loophole by applying existing
regulations to all charter party carriers.
2. Recent tragedies and loopholes in existing law
This bill seeks to address recent tragedies in California that
involved the deaths of minors who consumed alcohol on party
buses and died thereafter as a result of their actions while
intoxicated. One such example provided by the author involved
a 17-year old student from Redondo Beach who was killed trying
to walk across the Harbor Freeway during a party bus stop.
Another tragedy involved the namesake of this bill, 19-year old
Brett Studebaker. On February 5, 2010, Mr. Studebaker spent
hours drinking on a party bus for his friend's 21st birthday.
At 2:00 a.m., the bus operator dropped off passengers and Mr.
Studebaker attempted to drive home. His car crashed into a
sound wall on Highway 101 near San Mateo, and he died 30 minutes
later. Mr. Studebaker's blood-alcohol level was reportedly more
than three times the legal limit.
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Under existing law, the Passenger Charter-party Carriers' Act,
with certain exceptions, prohibits a charter-party carrier of
passengers from engaging in transportation services subject to
regulation by the Public Utilities Commission, without obtaining
a specified certificate or permit, as appropriate, from the
commission. That law requires the driver of any limousine for
hire to comply with prescribed requirements relating to
alcoholic beverages. These requirements include ascertaining
whether any passenger is under the age of 21 years, reading to
the passenger a statement that the consumption of any alcoholic
beverage in the vehicle is unlawful, and requiring such a
passenger to sign the statement. Under that act, if a passenger
who is under 21, after signing the statement, is found to be, or
to have been, consuming any alcoholic beverage during the course
of the ride, the contract of hire is immediately terminated and
the driver must return the passenger to the point of origin.
The act also subjects the carrier to specified civil penalties,
based on the number of offenses, for the conviction of a driver,
or any officer, director, agent, or employee of the carrier, for
violations of the Vehicle Code section prohibiting storage of an
opened container of an alcoholic beverage in a motor vehicle.
AB 3628 (Leslie, Ch. 1105, Stats. 1988) enacted that section in
recognition of a growing problem with underage drinking on
limousines. AB 3628 also contained Legislative findings and
declarations that "there is an increasing problem in California
involving the consumption of alcoholic beverages by persons
under the age of 21," that "some young people, in order to have
more privacy, hire chauffeured luxury limousines to facilitate
their illegal drinking," and that the Legislature "therefore
intends . . . to ensure that chauffeured limousines for hire
are not used to facilitate the illegal drinking of alcoholic
beverages by minors."
The author argues that the problem with current law is that the
party buses are not held to the same standards as limousines and
yet "operators aggressively market their buses to young partiers
with neon lighting, bars, sound systems and room for dancing
drinking and lounging." As such, this bill seeks to correct
that discrepancy by providing in place of those provisions a law
that applies to both party buses and limousines and spreads the
responsibilities and liabilities for ensuring that under age
persons do not drink among the carrier company, the driver, and
a chaperone.
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3. Existing liabilities relating to the provision of alcohol
to persons under 21 years of age in comparison to the
responsibilities and liabilities created by this bill
This bill would, among other things, provide for various
responsibilities and liabilities among the charter-party
carrier, the driver, and a third individual-a designee-if a
reservation is made for a party bus and (1) there will be
persons under 21 years of age on the bus and (2) alcohol will be
served on the bus during the provision of transportation
services. The bill would also impose certain responsibilities
and liabilities upon the driver and carrier if a reservation is
made in which there will be persons under 21 present, but no
alcohol served, or vice versa.
a. Liabilities under current law
California law generally provides that everyone is
responsible, not only for the result of his or her willful
acts, but also for an injury occasioned to another by his or
her want of ordinary care or skill in the management of his or
her property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon
himself or herself. (Civ. Code Sec. 1714(a).) In contrast,
this bill requires that a designee, who is essentially a 25
year old or older chaperone, ensure that members of the party
who are not accompanied by a parent or legal guardian comply
with all laws prohibiting the consumption of alcoholic
beverages by persons under 21 years of age. The designee
would also be responsible for any personal injury or property
damage that is proximately caused by the consumption of
alcoholic beverages by a person under 21 years of age on the
party bus.
Those provisions imply that the designee would be held
strictly liable, for any damages or injuries proximately
caused by the consumption of alcohol by a person under 21
years of age, even if the designee did everything a reasonable
person possibly could do to ensure that the under-age person
does not drink. To minimize his or her risk as a result of
the proposed strict liability, that chaperone could be forced
to take arguably extreme steps to ensure that he or she is in
control of any potential under-age drinkers. For example,
would the chaperone have to smell or taste test every drink
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that the under-age person consumed? Would the chaperone have
to follow the person into a rest room to ensure that a drink
is not smuggled in? Would the chaperone have to search the
person and his or her belongings, even if that person is an
adult and has privacy rights?
Staff notes that provisions of existing law relating to civil
liability for the acts of an intoxicated person are
instructive in analyzing whether the proposed liability
standard is appropriate. Namely, California law provides
that:
A liquor licensee who sells, furnishes, gives or causes
to be sold, furnished, or given away, any alcoholic
beverage to any habitual or common drunkard or to any
obviously intoxicated person is guilty of a misdemeanor,
but provides that the licensee shall not be civilly liable
to any injured person or the estate of such a person for
injuries inflicted on that person as a result of
intoxication by the consumer (i.e. patron) of the alcoholic
beverage. Existing law abrogates specified case law in
favor of prior judicial interpretation finding the
consumption of alcoholic beverages rather than the serving
of alcoholic beverages as the proximate cause of injuries
inflicted upon another by an intoxicated person. (Bus. &
Prof. Code Sec. 25602.)
A cause of action may be brought by or on behalf of a
person who has suffered injury or death against a liquor
licensee who sells, furnishes, gives or causes to be sold,
furnished or given away any alcoholic beverage to any
obviously intoxicated minor where the furnishing, sale or
giving of that beverage to the minor is the proximate cause
of the personal injury or deaths sustained by that person.
(Bus. & Prof. Code Sec. 25602.1.)
A social host who furnishes alcoholic beverages to any
person is not liable for damages suffered by that person,
or for injury to the person or property of, or death of,
any third person, resulting from the consumption of those
beverages. (Civ. Code Sec. 1714(c).) However, a claim may
be made against a parent, guardian, or another adult who
knowingly furnishes alcoholic beverages at his or her
residence to a person whom he or she knows, or should have
known, to be under 21 years of age. In only in this
instance can the furnishing of the alcoholic beverage to be
found as the proximate cause of resulting injuries or
death. (Civ. Code Sec. 1714(d).)
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In light of the limited carve outs for civil liability for
injuries to a person or property as a result of the provision
(as opposed to consumption) of alcohol, and considerations in
Comment 2b below, the duty created by this bill appears to be
too high for a person to be able to reasonably comply with.
As a result, staff notes that the author's amendments
discussed below restate the duty as a duty to make reasonable
efforts to ensure compliance with the laws prohibiting
underage drinking and impose liability only if the designee
knew or should have known that the person was under 21 years
of age and is consuming or has consumed alcoholic beverages.
a. Balancing of liabilities among the parties
This bill would provide for various responsibilities and
liabilities among the charter-party carrier, the driver, and a
third individual-a designee. This bill would require that the
party making a reservation for a party bus or limousine from a
carrier designate a chaperone (designee), who is at least 25
years old, to be present on any party bus or limousine if (1)
their party will include a person who is under 21 years of age
and (2) alcohol will be on that bus during the provision of
transportation services.
The designee would be responsible for ensuring compliance with
all laws related to the consumption of alcoholic beverages by
persons in the party who are under 21 years of age and who are
not accompanied by a parent or legal guardian and ensuring
compliance with all laws prohibiting the providing of
alcoholic beverages to minors by adult members of the party.
Moreover, he or she would be held responsible for any personal
injury or property damage that is proximately caused by a
violation of laws prohibiting the consumption of alcoholic
beverages by a person under 21 years of age when alcoholic
beverages are consumed during the provision of transportation
services.
The driver would chiefly be responsible for obtaining the
designee's signature or initials on a written form indicating
the designee's acknowledgment and agreement to his or her
specified responsibilities and liabilities. At the same time,
if the chartering party reports that no one under 21 will be
present but that there will be alcohol provided, the driver
would be made responsible for checking IDs or removing
unreported alcohol from the vehicle, as specified, among other
things. If the driver fails to do as required in violation of
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specified prohibitions against open containers in a vehicle,
he or she would be guilty of a misdemeanor and specified
penalties would result to the carrier.
Meanwhile, the carrier would need only notify the chartering
party of the responsibilities and liabilities of a designee at
the time that the chartering party makes the arraignments for
transportation, notify the driver that there will be persons
present who are under 21 and alcohol provided and notify the
driver of who the designee is.
The author writes that "Assembly Bill 45 represents a 'shared
responsibility' approach. All entities have responsibilities:
the bus company, the bus driver, and a chaperone for the party
bus group." As the bill is currently written, however,
significant onus is placed upon the chaperone, under the
threat of strict liability for any resulting torts that are
proximately caused by the underage drinker that is unlike the
responsibilities and liabilities that are placed on the driver
or bus company let alone business in the business of selling
and serving alcohol or social hosts who serve alcohol in their
home to underage persons. At the same time, this bill does
not appear to extend equivalent responsibilities or similar
liabilities on the party bus carrier-they are merely subject
to several oral notifications to the chartering party and the
driver and certain penalties if their driver does not comply
with his or her own responsibilities.
Out of the three potential parties who could be held
responsible for the acts of the intoxicated individual under
this bill, the party bus carrier appears to be left with the
least legal responsibilities even though they are, in fact,
knowingly operating a business that runs the risk of underage
drinking. Moreover, the designee arguably should not have the
same or more legal culpability as the person directly
providing the alcohol to the minor. As noted in Comment 3a,
the civil liability of person or even a liquor licensee for
the injuries caused to another's person or property as the
result of the acts of an intoxicated person are extremely
limited under California law. To address this unintended
imbalance and bring the liability of the designee closer in
line to existing liabilities for similar situations, as well
as to make other technical or clarifying changes, the author
offers the amendments provided below.
Those amendments would, among other things:
Require advance written notification to the designee
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fully explaining their responsibilities and assumed
liabilities. If the carrier fails to comply, the
amendments would require the carrier to provide a designee
and assume the responsibilities and liabilities of a
designee under this law.
Restate the duties of the designee to "ensure
compliance" with all laws prohibiting the consumption of
alcoholic beverages by persons under 21 years as a duty to
make reasonable efforts to ensure compliance with respect
to persons the designee knew or should have known to be
under 21 years of age and was consuming or consumed
alcohol.
Limit the designee's liability to reasonably foreseeable
personal injuries or property damage (as opposed to any and
all).
Clarify that a third party who provides the under-age
party with alcohol retains any liability they have under
existing law for those acts.
Help ensure that a designee acts reasonably in executing
his or her duties by allowing the liability of a designee
to terminate once they deliver an intoxicated under-age
drinker to a reasonably safe location, such as a hospital,
if not their home or to their parent or guardian, as the
bill currently requires.
Clarify what is intended by the term "minor" in this
bill as the term is usually used to indicate under the age
of majority (18) when the bill focuses on anyone under 21
years of age, including adults between 18-20 years of age.
A mock-up will be made available to reflect these amendments:
Author's Amendments :
On page 7, line 28, after "the designee shall" insert "make
reasonable efforts to"
On page 7, line 37, after "The designee shall be
responsible for any" insert, "reasonably foreseeable"
On page 7, line 40, after "being supplied with
transportation services" insert ", if the designee knew or
reasonably should have known that the person is under 21
and is consuming or has consumed alcoholic beverages while
being supplied with transportation services"
On page 8, line 4, after "and for any" insert "reasonably
AB 45 (Hill)
Page 16 of ?
foreseeable"
On page 8, line 4, after "property damage" insert "that was
proximately caused by the consumption of alcoholic
beverages by a person under 21 years of age while being
supplied with transportation services, where the designee
knew or reasonably should have known that the person is
under 21 and is consuming or has consumed alcoholic
beverages while being supplied with transportation
services,"
On page 8, line 5, after "until that," strike "minor" and
insert "person who is under 21 years of age"
On page 8, line 6, after "into the care of his or her
parent or legal guardian" insert ", or taken to a location
reasonably believed to be safer"
On page 8, before line 7, insert "(2) (A) The
charter-party carrier of passengers shall provide a copy of
the written form described in paragraph (4) of this
subdivision to the chartering party within 24 hours of the
reservation.
(B) If the charter-party carrier of passengers does not
provide the notice as specified in subparagraph (A) of
paragraph (2) of this subdivision, the charter-party
carrier of passengers shall be required to provide a
designee, who is not the driver, and shall incur any and
all liabilities of that designee."
On page 8, line 7, strike "(2) and insert "(3)"
On page 8, line 11, strike "(3)" and insert "(4)"
On page 8, line 21, after "The designee" strike "is
responsible for ensuring" and insert "shall make reasonable
efforts to ensure"
On page 8, line 33, after "The designee is legally
responsible for any" insert "reasonably foreseeable"
On page 8, line 36 after "being supplied with
transportation services" insert ", if the designee knew or
reasonably should have known that the person is under 21
and is consuming or has consumed alcoholic beverages while
AB 45 (Hill)
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being supplied with transportation services"
On page 8, line 39 after "member of their party, the
designee's responsibility for that" strike "minor" and
insert "person"
On page 8, line 40 after "and for any" insert "reasonably
foreseeable"
On page 8, line 40, after "personal injury or property
damage" insert "that was proximately caused by the
consumption of alcoholic beverages by a person under 21
years of age while being supplied with transportation
services, where the designee knows or reasonably should
know that the person is under 21 and is consuming or has
consumed alcoholic beverages while being supplied with
transportation services"
On page 9, line 1, after "that" strike "minor" and insert
"person who is under 21 years of age"
On page 9, line 2 after "the care of his or her parent or
legal guardian" insert ", or taken to a location reasonably
believed to be safer"
On page 9, line 3, strike (4) and insert "(5)"
On page 9, line 4 after "provision of transportation
services and shall" strike "be responsible for" and insert
"make reasonable efforts to ensure"
On page 9, line 5, after the first "the" insert "lawful"
On page 9, line 8, strike "(5)" and insert "(6)(A)"
On page 9, line 8, after "The designee shall" insert "make
reasonable efforts to"
On page 9, line 11, after "a parent or legal guardian."
insert "(B)"
On page 9, line 11, after "The designee shall" insert "make
reasonable efforts to"
On page 9, line 13, strike "minors" and insert "persons
under 21 years of age"
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On page 9, line 13, after "by adult members of the party"
insert "who are 21 years of age or older."
On page 9, line 13, before "If a person under 21 years"
insert "(C)"
On page 9, line 15 after "parent or legal guardian shall"
insert "make reasonable efforts to"
On page 9, line 16 after "laws prohibiting the consumption
of alcoholic beverages." insert "(D)"
On page 9, line 16, strike "The" and insert "A"
On page 9, line 17, after "designee or, when present, the
parent or legal guardian" insert "who fails to act
reasonably"
On page 9, line 18, after "responsible for any" insert
"reasonably foreseeable"
On page 9, line 22, after "provision of transportation
services" insert ", if the designee, parent or legal
guardian knew or reasonably should have known that the
person is under 21 and is consuming or has consumed
alcoholic beverages during the provision of transportation
services"
On page 9, line 22, before "Nothing in this paragraph"
insert "(E)"
On page 9, line 25, after "of passengers." insert "(F)"
On page 9, line 25, after "Nothing in this" strike
"paragraph" and insert "section"
On page 9, line 27, strike "(6)" and insert "(7)"
On page 10, line 1, strike "(7)" and insert "(8)(A)"
On page 10, line 6 after "than one party is participating
on the trip, shall" insert "either"
On page 10, line 8, strike "minor" and insert "person under
21 years of age who was"
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On page 10, line 11, after "doing so are" insert
"reasonably"
On page 10, line 12, after "services shall be forfeited and
not subject to refund." Insert "(B)"
On page 11, between lines 14 and 15, insert "(f) Nothing in
this Law is intended to change the liability of a third
party knowingly furnishing the alcoholic beverage to a
person who they know or reasonably should have known to be
under 21 years of age."
Support : California Bus Association; California Narcotic
Officers' Association; California Police Chiefs Association;
California Public Utilities Commission; Crime Victims United of
California; EF International Language Schools; Greater
California Livery Association; Los Angeles County Sheriff's
Department; Mothers Against Drug Driving; National Council on
Alcoholism and Drug Dependence - Orange County; San Mateo Police
Department; State Public Affairs Committee of the Junior League
of California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 1407 (Committee on Judiciary, Ch. 410, Stats. 2011)
re-visited the exception to the general rule of no civil
liability for a social host that was carved out by AB 2486
below, to clarify that the adult had to in fact know or should
have known that the person was under 21.
AB 2486 (Feuer, Ch. 154, Stats. 2010) carved out an exception to
the general rule precluding civil liability for a social host
and allowed for a cause of action to be brought against parents,
guardians or other adults who knowingly furnish alcoholic
beverages at his or her residence to a person who is under 21
years of age.
AB 45 (Hill)
Page 20 of ?
Prior Vote :
Senate Energy, Utilities & Commerce Committee (Ayes 7, Noes 1)
Assembly Floor (Ayes 70, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Utilities & Commerce Committee (Ayes 15, Noes 0)
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