BILL ANALYSIS Ó ABX2 18 Page 1 Date of Hearing: September 8, 2015 ASSEMBLY COMMITTEE ON HEALTH Rob Bonta, Chair ABX2 18 (Bonilla) - As Introduced August 31, 2015 SUBJECT: Taxation: distilled spirits: Cocktails for Healthy Outcomes Act. SUMMARY: Imposes a $0.05 per drink tax on all spirits-based cocktails purchased in restaurants, bars, and other venues in the state to fund developmental disability services and other health programs. Specifically, this bill: 1)Imposes a surtax of $0.05 for each spirts-based cocktail purchased by an individual from an on-sale licensee, beginning January 1, 2016. 2)Requires the State Board of Equalization (BOE) to recalculate the rate annually, for each calendar year beginning January 1, 2017, in accordance with the percent change in the California Consumer Price Index. Prohibits the rate from being less than $0.05 per cocktail. 3)Requires the licensee to collect the surtax as a charge separate from, and not included in, any other fee, charge, or other amount paid by the purchaser. ABX2 18 Page 2 4)Requires the BOE to administer and collect the surtax imposed by this bill pursuant to the Fee Collection Procedures Law. 5)Allows the BOE to prescribe, adopt, and enforce regulations relating to the administration and enforcement of this bill, including, but not limited to, collections, reporting, refunds, and appeals. 6)Requires the licensee to remit the surtax to BOE quarterly on or before the last day of the month succeeding each quarterly period. 7)Requires licensees that collect the surtax pursuant to this bill to register with the BOE as a surtax collector, as specified. 8)Specifies that the taxes imposed by this bill are in addition to any other taxes imposed under current law. 9)Specifies that the cocktail purchaser is liable for the surtax until it has been paid to the BOE, except that payment to an on-sale licensee is sufficient to relieve the purchaser from further fee liability. 10)Creates the Healthy California Special Fund (fund) within the State Treasury, to receive revenues collected by BOE pursuant to this bill. 11)Specifies that, upon appropriation by the Legislature, all moneys in the fund will be expended to either: ABX2 18 Page 3 a) Developmental disability services, and other health programs; and b) Reimbursement for expenses incurred by BOE pursuant to this bill. EXISTING LAW: 1)Establishes the State Department of Alcoholic Beverage Control (ABC) and grants it the exclusive authority to administer the provisions of the Alcoholic Beverage Control Act in accordance with laws enacted by the Legislature. 2)Contains various provisions regulating the application for, the issuance of, the suspension of, and the conditions imposed upon, alcoholic beverage licenses by ABC. 3)Establishes the BOE to collect sales and excise taxes, among its other duties. 4)Imposes, under the Alcoholic Beverage Tax Law, the following taxes and surcharges on the sale of beer, wine, and distilled spirits: ----------------------------------------------------- | | Tax | Per | Total | | | | Gallon | | | | | | | | | | | | | | |Surcharge| | ABX2 18 Page 4 | | | | | | | | | | | | | | | |--------------------------+--------+---------+-------| |Beer | $0.04 | $0.16 | $0.20 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |--------------------------+--------+---------+-------| |Wine (not more than 14% | $0.01 | $0.19 | $0.20 | |alcohol) | | | | | | | | | |--------------------------+--------+---------+-------| |Wine (more than 14% | $0.02 | $0.18 | $0.20 | |alcohol) | | | | | | | | | |--------------------------+--------+---------+-------| |Sparkling wine | $0.30 | $0.00 | $0.30 | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |--------------------------+--------+---------+-------| |Hard cider | $0.02 | $0.18 | $0.20 | | | | | | | | | | | |--------------------------+--------+---------+-------| |Distilled spirits (100 | $2.00 | $1.30 | $3.30 | |proof) | | | | | | | | | | | | | | | | | | | ABX2 18 Page 5 | | | | | | | | | | | | | | | | | | | | |--------------------------+--------+---------+-------| |Distilled spirits (100+ | $4.00 | $2.60 | $6.60 | |proof) | | | | | | | | | ----------------------------------------------------- The proceeds from these taxes and surcharges are deposited into the Alcohol Beverage Control Fund and are withdrawn for use by the General Fund or used to pay refunds under the Alcoholic Beverage Tax program. 5)Establishes an entitlement to services for individuals with developmental disabilities under the Lanterman Developmental Disabilities Services Act (Lanterman Act). 6)Grants all individuals with developmental disabilities, among all other rights and responsibilities established for any individual by the United States Constitution and laws and the California Constitution and laws, the right to treatment and habilitation services and supports in the least restrictive environment. 7)Establishes a system of 21 nonprofit regional centers throughout the state to identify needs and coordinate services for eligible individuals with developmental disabilities and requires the Department of Developmental Services (DDS) to contract with regional centers to provide case management services and arrange for or purchase services that meet the needs of individuals with developmental disabilities, as defined. ABX2 18 Page 6 8)Establishes Department of Health Care Services (DHCS) as the single state agency responsible for administering and coordinating the state's efforts in alcohol and drug abuse prevention, treatment, and recovery services. FISCAL EFFECT: This bill has not been analyzed by a fiscal committee. COMMENTS: 1)PURPOSE OF THIS BILL. According to the author, this bill will help provide the necessary funding to ensure California's compliance with the Lanterman Act, a California law passed in 1969, which provides people with developmental disabilities and their families the right to receive necessary services in their community. There have been significant reductions in the DDS budget. One billion dollars has been lost since the Great Recession. This is about 25% of the entire DDS budget. According to information provided by the author, Approximately $400 million is needed for DDS programs including in-home supportive services, community-based programs, and supportive living services. The current regional center caseload ratio is 1 worker/75 consumers. However, in statute the regional center caseload is required to be 1 worker/62 consumers. Given the current regional center caseload, the state is at risk for losing federal dollars if it does not come into compliance with the Lanterman Act. In order to meet caseworker ratios required under current statute, the state would need about 650 additional regional center workers. The author further states that the funding from a $0.05 charge on cocktails is needed for providers to deliver respite care, transportation, day treatment programs; and independent and supported living programs to our developmental disability community. ABX2 18 Page 7 2)BACKGROUND. a) Alcohol Consumption and Public Health. According to the Centers for Disease Control and Prevention (CDC), excessive alcohol use, either in the form of heavy drinking (drinking 15 or more drinks per week for men or eight or more drinks per week for women), or binge drinking (drinking five or more drinks on an occasion for men or four or more drinks on an occasion for women), can lead to increased risk of health problems such as liver disease or unintentional injuries. Alcohol use contributes to illnesses as varied as liver cirrhosis, esophageal cancer, pancreatitis, and epilepsy. It also plays a role in violent crimes such as sexual assaults, domestic violence, and child abuse, while also causing serious injuries and traffic fatalities. According to the CDC's Behavioral Risk Factor Surveillance System (BRFSS) survey, more than half of the adult U.S. population drank alcohol in the past 30 days. Approximately 5% of the total population drank heavily, while 17% of the population binge drank. The 2010 BRFSS notes that, compared to other states, Californians report relatively low rates of binge drinking. CDC states that excessive alcohol consumption cost the United States $223.5 billion in 2006. This amounts to about $1.90 per drink, or about $746 per person. The costs due to excessive drinking largely resulted from losses in workplace productivity (72% of the total cost), health care expenses (11%), and other costs due to a combination of criminal justice expenses, motor vehicle crash costs, and property damage. While a relatively small percentage of drinkers report binge or heavy drinking, these drinkers accounts for a disproportionately high percentage of state costs. CDC estimates that binge drinking is responsible for more than ABX2 18 Page 8 70% of the cost of excessive alcohol use in all states and the District of Columbia. Additionally, about $2 of every $5 of the economic costs of excessive alcohol use were paid by federal, state, and local governments. CDC found that the total state costs for excessive drinking were generally of the same order of magnitude as the costs for smoking and Medicaid. California is the largest market for alcohol sales in the United States. It is estimated that in a single year, Californians consume almost 14 billion alcoholic drinks (including spirits, wine, and beer). The National Institute of Alcohol Abuse and Alcoholism Surveillance Report #102 estimated that, nationally, Americans consumed an average of 2.34 gallons of ethanol each in 2013. California was ranked with 30 other high consumption states that had over 2.31 gallons per person per year. According to the Distilled Spirits Council of the U.S., about one-third of alcohol consumed in California is spirts-based, while the remaining two-thirds are wine and beer. A 2006 study published in the American Journal of Preventive Medicine calculated the cost of excessive alcohol consumption in California at $32 billion, with $13.7 billion coming from the state funds. A 2008 study published in the journal Alcoholism: Clinical and Experimental Research titled "The Cost of Alcohol in California" calculated the overall economic cost of excessive alcohol consumption - including costs such as health issues, injury, violent crime, property crime, and ABX2 18 Page 9 traffic collisions - at $38.5 billion. According to the California Department of Public Health, excessive alcohol consumption caused approximately 88,000 deaths and 2.5 million years of potential life lost annually in the U.S. during 2006 to 2010, making it the fourth leading preventable cause of death. In California, the rate of alcohol-attributable deaths (ADD/year/100,000 population, 2006 to 2010) is higher for males (43.9) and African Americans (36.6) in comparison with the total population (29.4). b) The Lanterman Act. The Lanterman Act, which was enacted in 1977, guides the provision of services and supports for Californians with developmental disabilities. Each individual under the Act (typically referred to as a "consumer") is legally entitled to treatment and habilitation services and supports in the least restrictive environment possible. Lanterman Act services are designed to enable all consumers to live more independent and productive lives in the community. The term "developmental disability" is defined in statute as a disability that originates before an individual attains 18 years of age, continues, or can be expected to continue, indefinitely, and constitutes a substantial disability for that individual. It includes intellectual disabilities, cerebral palsy, epilepsy, and autism spectrum disorders. It also includes disabling conditions that are closely related to intellectual disabilities or require treatment, care, and management similar to what is required for individuals with an intellectual disability. These conditions must occur before age 18, result in a substantial handicap, be likely to continue indefinitely, and involve brain damage or dysfunction (conditions that are solely psychiatric or physical in nature are excluded). Passage of the Lanterman Act marked the beginning of ABX2 18 Page 10 California's shift from a model of care that relied on institutional placement to one that focused on providing services and supports at home or in other community-based settings, and it was followed by a number of federal and state legal decisions, as well as administrative and legislative initiatives, which reinforced the new entitlement to services. Of particular note was the 1994 settlement agreement reached in the William Coffelt et. al. v. the California Department of Developmental Services, et. al. class-action lawsuit to develop additional community placement options and reduce the population of individuals in institutions by 2,000 within five years. Five years later, the U.S. Supreme Court ruled in Olmstead vs LC (527 U.S. 581 (1999)) that a lack of community supports was not legal grounds for denying people with disabilities a move from an institution into a community setting if they could benefit from community placement. The court ruled that such a denial constituted a violation of individual civil rights, as well as discrimination under the Americans with Disabilities Act. In California, 10 years after the Olmstead decision, Capitol People First et al. v DDS, et al. resulted in a settlement in which DDS and the regional centers agreed to develop additional community living options and establish new practices to ensure the Lanterman Act's promise of services in the least-restrictive environment would be maintained. c) Regional Centers. Direct responsibility for implementation of the Lanterman Act service system is shared by DDS and 21 regional centers. Regional centers are private nonprofit entities established pursuant to the Lanterman Act that contract with DDS to carry out many of the state's responsibilities under the Act. The primary duties of regional centers include intake and assessment, individualized program plan development, case management, ABX2 18 Page 11 and securing services through generic agencies (e.g., school districts, In-Home Supportive Services) or purchasing services provided by vendors. Regional centers also share responsibility with local education agencies for the provision of early intervention services under the California Early Intervention Services Act (e.g., Early Start Program). In fiscal year 2015-16, funding for DDS is $5.9 billion (General Fund/federals fund). Regional centers contract with a network of local providers that are authorized to receive state and federal funding by becoming vendors of the local regional center. Prior to being approved to receive funding from a regional center for providing services to a consumer, a service provider must become vendorized by the regional center that oversees the catchment area in which the provider is located. This "vendorization" process includes verifying that the provider is qualified to provide the planned services and meets all other regulatory standards and requirements. It is important to note that vendorization makes a provider eligible to provide services paid for by the regional center, but does not guarantee the regional center will refer consumers. Furthermore, there is nothing precluding a vendor from being vendorized by more than one regional center. There are over 45,000 vendors that provide services paid for by regional centers in California. Services provided to people with developmental disabilities are determined through an individual planning process, which is coordinated by regional center case managers. Within this process, planning teams-which include, among others, the consumer, his or her parent(s) or other legally authorized representative, and one or more regional center representatives-jointly prepare an Individual Program Plan (IPP) based on the consumer's needs and choices. The ABX2 18 Page 12 Lanterman Act requires that the IPP promote community integration and maximize opportunities for each consumer to develop relationships, be part of community life, increase control over his or her life, and acquire increasingly positive roles in the community. The IPP must give the highest preference to those services and supports that allow minors to live with their families and adults to live as independently as possible in the community. The regional center caseload includes over 280,000 individuals who receive services such as respite care, transportation, day treatment programs, residential placements, behavioral therapies, independent and supported living, supported employment, and numerous other social and therapeutic activities and services. Another 10,000 individuals are within the "diagnosis and evaluation" phase of their respective regional centers, half of which are children under three years of age. According to DDS data, 60% of the regional center population is between 18 and 61 years of age; about two-thirds of all consumers have an intellectual disability, just over 30% are diagnosed with autism or a related disorder; and nearly 18% are identified as having severe behaviors. As of April 2015, around 77% of consumers live in their own home with a parent or guardian, and nearly 25,000 (8.9%) receive independent living or supported living services. As of July 1, 2015, there are 1,077 regional center consumers who reside at one of California's three developmental centers (Porterville, Sonoma, and Fairview) and one state-operated, specialized community facility (Canyon Springs). These facilities provide 24-hour habilitation and medical and social treatment services. While some residents in these facilities were voluntarily placed by relatives and conservators due to acute medical needs and other special needs that made it unsafe for them to live in the community at the time of placement, other residents have experienced ABX2 18 Page 13 involuntary placements due to court orders (e.g., forensic placements at Porterville Developmental Center within the secured treatment unit). The state's regional centers vary considerably in size and organization, from Redwood Coast Regional Center, which serves the smallest caseload at almost 3,500 consumers all the way to Inland Regional Center, with a caseload of 30,000. Additionally, while some regional center catchment areas are geographically expansive, others provide services alongside many other regional centers, often due to higher, more concentrated populations. For example, Inland Regional Center, with the highest caseload for a single regional center, covers San Bernardino and Riverside Counties, whereas neighboring Los Angeles County includes seven regional center catchment areas, which together serve over 87,500 consumers. d) Regional Center Rates. Current statute and regulations set forth rate requirements for regional centers to adhere to when contracting with vendors to provide services to consumers. There are different types of rates for services provided in different settings, many of which are negotiated between regional centers and vendors and are subject to a cap as a result of the state's cost-containment efforts over the past several years. July 1, 2008 marked the original implementation date for statewide and regional center median rates, with a requirement that regional centers do not negotiate rates higher than the lower of the two median rates for services. Each regional center is required to annually certify to DDS its median rate for each negotiated rate service, which DDS verifies during its biennial fiscal audit of the regional center. Despite the median rate cap, a regional center can obtain a rate increase from DDS under a "health and safety exemption" for a particular consumer if the regional center can demonstrate the exemption is necessary ABX2 18 Page 14 to maintain his or her health and safety. Most recently, FYs 2014-15 and 2015-16 Budget trailer bill provisions allowed for provider rate increases to address new state minimum wage requirements and sick leave benefits. 3)Alcoholic Beverage Taxes. According to the National Conference of State Legislatures, all 50 states, the District of Columbia and Puerto Rico tax alcoholic beverages. Most states have imposed excise taxes on alcoholic beverages since the 1930s. Alaska and Oklahoma, in 1959, were the last states to impose the tax. Excise taxes on alcohol are intended to generate revenue and discourage consumption by increasing prices to the consumer. Proponents argue that alcoholic beverage excise taxes improve the efficiency of the free market by including the social costs of drinking in the price of the product, while opponents argue that alcoholic beverage taxes are a highly regressive form of taxation. California, among about two-thirds of the US states, allows licensed private retailers to sell liquor, beer and wine. For these states, revenues are generated through wholesale excise taxes. 4)SUPPORT. The California Medical Association (CMA) states that alcohol abuse is an issue that puts a significant cost burden on California's healthcare system. Alcohol-related deaths from car accidents still make up a third of all car accident fatalities. CMA further states that alcohol taxes reduce excessive drinking and alcohol-related problems; one estimate suggests that a nickel-per-drink increase in alcohol would reduce fatal traffic accidents by 7%. The California Supported Living Network and other supporters of this bill, state that it will provide an important funding source to keep individuals and families together, living independently, and getting the services that integrate them into communities. 5)OPPOSITION. Opponents, representing makers, carriers, and ABX2 18 Page 15 sellers of alcohol products, assert that there are no negative social costs associated with normal moderate consumption of alcoholic beverages and this bill unfairly penalizes 90-95% of responsible drinkers. They argue that this bill could make it even more difficult for businesses that are struggling to keep their doors open and retain employees during these difficult economic times by disproportionately targeting a specific category of products for fee increases. Opponents maintain that the alcohol industry already pays more than its fair share of revenue to the state, and that this bill would add new costs and reporting burdens on small businesses in California's hospitality industry. 6)PREVIOUS LEGISLATION. a) AB 1694 (Beall) of 2010 would have established the Alcohol-Related Services (ARS) Program within the Department of Alcohol and Drug Programs (DADP) to mitigate the harm of alcohol use and imposes a $0.05 mitigation fee on beer, wine, and liquor to fund the ARS Program. AB 1694 failed passage in Assembly Health Committee with a 5-8 vote. b) AB 1019 (Beall) of 2009, substantially similar to AB 1694, failed passage in the Assembly Health Committee by a 5-8 vote. c) SB 558 (DeSaulnier) of 2009, would have established the Alcohol Abuse Treatment Fund and authorized ABC to assess and collect a fee in the maximum amount of $0.05 per drink from every person who is engaged in business in this state and sells alcoholic beverages for resale. SB 558 was ABX2 18 Page 16 referred to the Senate Governmental Organization Committee but was never set for a hearing. d) SB 297 (Romero) of 2007, would have authorized counties, with voter approval, to levy a local tax on the consumption of beer, wine, and distilled spirits consumed on the premises of the seller of one of these products. SB 297 was referred to the Senate Governmental Organization Committee but was never set for a hearing. e) AB 216 (Chan) of 2004, would have required the BOE to collect a fee from any beer manufacturer, distilled spirits manufacturer, beer importer, and distilled spirits importer of up to $100 million and required the DAPD to establish youth alcohol recovery and prevention programs in every county. AB 216 failed passage in the Assembly Health Committee. f) SBX1-5 (Romero) and SB 108 (Romero) of 2003, would have imposed a $0.05 per drink fee on any wholesaler located in this state who distributes alcoholic beverages to retailers for consumption in the state. The fee would be based on 1.5 ounces of distilled spirits, 12 ounces of beer, and five ounces of wine. Both bills passed out of the Senate Health and Human Services Committee but subsequently died in the Senate Rules Committee. 7)POLICY COMMENTS a) Narrow tax on alcohol. Negative health effects of excessive alcohol consumption are not limited to spirits-based drinks. There is no health reason that ABX2 18 Page 17 alcohol from one source is better or worse than others. Along the same lines, spirit alcohol consumed at home is not necessarily less of a public health burden than spirit alcohol consumed at a bar but the alcohol consumed at the bar is subject to this tax. The committee may wish to consider why beer and wine drinks are not being included in this bill and why this tax only applies to on-premise alcohol consumption? b) Where are the funds going? The language in this bill fails to specify how the funds will actually be allocated. This bill refers broadly to "developmental disability services" rather than specifically to the Department of Developmental Services. The addition of "among other health programs" could open the door to spending these funds on any number of programs such as Medi-Cal, Alcohol and drug abuse treatment programs, or nearly any other health-related program. c) Binding Future Legislatures. This bill would require the Legislature to appropriate the funds in the Healthy California Special Fund for the specified purposes. Of concern is the fact that one legislative body may not limit or restrict its own power or that of subsequent legislatures, and the act of one Legislature may not bind its successors [County of Los Angeles v. State of California (1984) 153 Cal.App.3d 568, 573]. In practical terms, it means that subsequent legislatures are under no legal obligation to comply with the provisions of this bill. d) Administrative issues and burden. There are approximately 18,000 to 20,000 licensees that would need to register with BOE pursuant to this bill. While these retailers are already registered for the purposes of paying their sales and use tax, this bill would be a new and ABX2 18 Page 18 different type of tax. Due to substantial differences in the tax programs, this bill may require a separate registration, separate tax returns, and bookkeeping issues for each retailer. In addition, retailers would have to keep records of every mixed drink sold. Many currently do not, leading to additional compliance burdens. There are some hospitality industry practices that are not clearly addressed under this bill, for example complimentary alcoholic beverages; cash or ticket bars; varying beverage or serving sizes; open bars; membership or private club privileges; and others. It is unclear if certain transactions would be subject to the surtax or if there may be certain industry practices that the author should address in statute. The author may wish to consider amending the bill to resolve these issues, or alternatively, to provide the BOE broad authority to address surtax imposition and exemptions by regulation. 8)SUGGESTED AMENDMENTS a) Delayed implementation: January 1, 2016 may not allow enough time for BOE to begin collecting this tax. The author may wish to consider delaying implementation to January 1, 2017. In section 33002 (b), the date on which BOE must recompute the rate should be moved forward accordingly. b) Technical amendment: because "board" is defined in the bill to mean the State Board of Equalization, it is unnecessary to use the full name elsewhere in the bill. For consistency and clarity, all mentions of "State Board of Equalization" should be stricken and replaced with just "board". ABX2 18 Page 19 REGISTERED SUPPORT / OPPOSITION: Support John Gioia, Supervisor, Contra Costa County Association of Regional Center Agencies California Medical Association California Society of Anesthesiologists California Supported Living Network East Bay Developmental Disabilities Legislative Coalition Futures Explored Strategies to Empower People Opposition California Craft Brewers Association ABX2 18 Page 20 California Beer and Beverage Distributors California Manufacturers and Technology Association California Restaurant Association Diageo Distilled Spirits Council of the United States Howard Jarvis Taxpayers Association National Federation of Independent Business Wine Institute Analysis Prepared by:Dharia McGrew / HEALTH / (916) 319-2097 ABX2 18 Page 21