BILL ANALYSIS                                                                                                                                                                                                    ”






                             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)



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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.

                                                                      



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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. 

                                                                      



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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 1988›,] legislation was 
            passed to prevent limousines from being used as "booze 
            cruises›.]"  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 
            required›,] 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 
                                                                      



          AB 45 (Hill)
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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 
                                                                      



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               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 
                                                                      



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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" 
                                                                      



          AB 45 (Hill)
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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"

                                                                      



          AB 45 (Hill)
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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)
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           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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