Alaska’s criminal statutes have undergone significant revision in the last two years. Many of those modifications to state law have necessitated corresponding changes to various Alaskan communities’ municipal codes. On November 26, Governor Walker signed Senate Bill 54 (“SB54”), making additional significant changes to the state’s criminal statutes. Those changes in SB54 could invite further action by municipalities.
In 2016, the enactment of Senate Bill 91 (“SB91”) significantly altered how many crimes were defined and punished. In most instances, SB91 lowered the length of jail time that could be imposed for many low-level offenses, or, in some instances, altogether removed the possibility of incarceration. Following SB91’s passage, municipalities in Alaska had to amend portions of their municipal codes because a municipality cannot impose a more punitive sanction than the analogous state statute. See Alaska Const. Art. X, s 11 and AS 29.25.070(g). So, for instance, municipalities had to amend code sections defining sentences of imprisonment for misdemeanors when SB91 lowered the allowable punishment for those crimes under state law.
Following SB54’s enactment, municipalities will again need to decide whether and how their codes must be altered to comply with state law. Among many changes relevant to municipalities in Alaska, SB54 contains numerous revisions to how misdemeanor crimes are classified and punished. In contrast to SB91, SB54 generally increases the length of potential jail sentences that can be imposed for particular crimes. SB54 also reclassifies as misdemeanors some offenses that had been reduced to violations.
For example, SB91 had raised the dollar-value amounts that were used to classify various levels of property offenses. The most visible example of this was in the definitions of felony theft in the second degree, as defined in AS 11.46.120, and misdemeanor theft in the third degree, as defined in AS 11.46.130. Prior to 2016, the difference between the two offenses was set at $500. Theft of property that was valued at less than $500 was a misdemeanor while a theft above that amount was a felony. SB91 increased that amount to $1,000. SB54, as currently written, decreases the value back down to $750. This same change has been enacted for other property offenses that are similarly classified by dollar value. Those include, among many others, criminal mischief, concealment of merchandise, and vehicle theft. Most municipalities that have enacted criminal offenses as part of their code include offenses against property. Those that specify dollar amounts will have to decide whether to update their code to align their codes with state law.
Another significant change that is emblematic of SB54’s impact on municipalities’ criminal codes is the reclassification of violation of conditions of release (“VCR”) as defined in AS 11.56.757. Prior to 2016, that crime was a misdemeanor. SB91 reclassified VCR as an offense for which only a fine and no jail time could be imposed. SB54 restores the possibility of jail time by making VCR a class B misdemeanor. Municipalities, such as Dillingham and Anchorage, that have code provisions criminalizing VCR will need to decide whether to bring their codes in line with the increased punishment authorized under state law. See Dillingham Municipal Code § 9.70.010 and Anchorage Municipal Code § 8.30.110.
Municipalities that specify penalties for violations of their codes might also be affected by SB54’s passage. The bill contains multiple revisions to misdemeanor sentences as specified in AS 12.55.135. The maximum penalty for committing a class B misdemeanor, as set out in AS 12.55.135(b), now includes a maximum sentence of 5-days imprisonment for VCR. AS 12.55.135(l) has also been amended to alter the penalty for theft in the fourth degree. Municipalities will need to choose whether to amend their criminal codes to align with these new penalties.
Some have argued that SB54 likely contains at least one unconstitutional provision. That potential issue concerns the similar range of sentences for class C and class B felonies. As of now, no municipality in Alaska has enacted felony offenses as part of their codes. This potential issue with SB54 should therefore not impact municipalities who have enacted criminal offenses.
Because the revisions in SB54 generally make state laws more punitive than their previous versions, current municipal codes that were brought into line with SB91 will likely not violate AS 29.25.070(g). (As noted above, that statute mandates that municipality cannot impose a greater punishment than the state for a similar offense.) But municipalities in Alaska will likely want to decide whether to follow the Alaska Legislature’s recent approach as laid out in SB54. For instance, changes could potentially be made to the definition of property offenses and the penalties prescribed for various violations. Each community will now be able to decide whether to follow suit with the state.
The holiday season is almost upon us and in most businesses so is the company Christmas party. This annual rite is an American tradition that employees often look forward to all year. Increasingly, however, it can be the source of liability for the employer and not just for serving alcohol. Christmas and other holiday parties may be primarily social. However, if employees are required to attend either officially or unofficially, if clients may be present, or even if the party simply increases company morale, it may be found that the party is part of employment. This can make an employer subject to liability beyond that of an ordinary social host. In Alaska, a social host, such as a company sponsor of a Christmas party, cannot be held liable for serving alcohol per se. There are, however, many other forms of liability that can arise out of this type of social situation. An employer can still be held liable for negligence, such as not providing adequate security or supervision for the gathering. Other areas of concern include: Workers Compensation coverage; compliance with Wage and Hour Law; Compliance with Title VII and the ADA; sexual harassment; and the general safety of employees. With proper planning and adequate preparation, all of these potential problems can be avoided.
Liability for Serving Alcoholic Beverages
Alaska Statute 04.21.020 states that a social host who provides alcoholic beverages to another person maynotbeheldcivillyliable for injuries resulting from the intoxication. The Alaska Supreme Court has expressly held that it will not carve out an exception to this statute for employers acting as social hosts. However, the court will not exempt employers from other forms of negligence liability that may arise from a social situation. The Court has upheld decisions based on failure to provide adequate security, and for negligence by an intoxicated employee while driving for the benefit of his employer. (Within the scope of his employment.) It should be noted that “social host” does not include licensed servers.
Workers’ compensation covers injuries “arising out of and in the course of employment.” If employees are in any way required to attend a social gathering, or the gathering is in the employer’s interest, workers’ compensation will likely cover injures to employees at the party.
The Alaska Workers Compensation statute was amended in 1994 to exempt sporting activities from workers’ compensation coverage. Christmas parties are not sporting activities.
Wage and Hour
If employees are in any way required to attend a social event or the event party is in the employer’s interest, wage and hour laws are applicable. The Alaska Department of Labor has adopted the federal standard for the applicability of wage and hour laws to attendance at meetings outside of work time, 29 CFR § 785.27. Essentially wages must be paid if the holiday party is during normal work hours or attendance is not fully “voluntary.”
Title VII and The Alaska Human Rights Act (AS 18.80)
Employers must recognize that some employees may not share their employer’s holiday spirit and desire to celebrate Christmas. Christmas is, after all, a religious holiday despite the retail hype. An employer must be careful to be sensitive to an employee’s feelings on this issue. Although there are no hard and fast rules, it is a good idea to keep official functions primarily secular, if not wholly secular, unless the feelings of all employees are truly known on this issue. An employer cannot discriminate against an employee on the basis of religion.
Discrimination includes limiting, segregating or classifying employees in any way that would deprive or tend to deprive an individual of employment opportunities. 42 USC § 2000e-2. If an employee voices strong objection to attending the company Christmas party, they should be allowed to perform some other function during the party. It should be made clear that non-attendance will not affect the employee’s current duties or possibility of future promotions.
An employer must be careful that all employees will have access to the Christmas party. This may even include access for spouses or guests with disabilities. An employer cannot discriminate against an employee on the basis of disability. Discrimination includes limiting, segregating, or classifying employees in any way that would deprive or tend to deprive an individual of employment opportunities. 42 USC § 12112.
Accordingly, employers should make reasonable accommodation to allow spouses and guests to attend holiday parties.
It is unlikely that a single incident at a holiday party will be a violation of Title VII. However, a social situation, especially where alcohol is served, may create an atmosphere which will lead to problems that evolve into a hostile or discriminatory situation in the workplace. What is acceptable conduct at a holiday party may be more relaxed than conduct under normal working conditions. However, sexual harassment guidelines still apply. An employer should make this clear to all employees.
If a harassing situation does occur at a holiday party, an employer must take prompt and appropriate action. With respect to contact between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knew or should have known about the conduct, unless it can show that it took immediate and appropriate corrective action. 29 CFR § 16704.11. An employer will be responsible for harassment conducted by its management. This does not mean that an employer should ban all intraoffice social relationships. Relationships between men and women are an integral and important part of our society. An employer, however, must control unwelcome sexual advances, actions or discussions, and must closely monitor potential problems, e.g. employee/supervisor relationships.
Checklist: How to Avoid Problems at Your Holiday Party
To avoid problems with holiday parties, anticipate situations before they become problems. Preparation and common sense are essential:
Is there adequate supervision?
Are responsibilities for supervision at the party clearly defined?
Is someone with supervisory authority present, sober, and able to deal with potential problems as they arise?
Is there control of who enters and exits the party?
Is there control over the dispensation of alcohol to prevent minors and intoxicated persons from drinking?
Make sure that food, especially protein rich and starchy food, is available to control alcohol abuse. Food not only lessens the effects of alcohol, but also tends to slow down drinking.
Consider having activities such as dancing available. This will tend to slow down drinking and may add to the fun.
Make sure employees who may have work responsibilities later that day are not drinking.
If the party is held at a remote location, is there adequate safe transportation to return people home?
If the party is during working hours or employees are required either officially or unofficially to attend, are the employees being paid?
Are all employees adequately informed as to rules on sexual harassment?
Are the party’s theme and decorations primarily secular? If not, will anyone be offended?
Is the party located so that it is accessible to all employees and their spouses or guests?
Are there adequate non-alcoholic beverages available?
When the location of the party is chosen, survey the location for accessibility and potential hazards.
Immediately before the start of the party, survey the location for accessibility and potential hazards.
Make sure a phone is available as well as phone numbers for taxi cabs to assist intoxicated persons to return home. Consider cab vouchers.
Make sure no one is being put in a position where they feel they are forced to drink.
Remember, it takes about an hour for the effects of one drink to wear off. Cold showers and coffee do nothing to sober anyone up. They only make a wide awake drunk.
William A. Earnhart is an attorney with the law firm of Birch Horton Bittner & Cherot in Anchorage. His practice emphasizes employment and labor advice and litigation on behalf of employers.
Construction projects in Alaska and elsewhere are often protected by a surety bond and are also often covered by more than one insurance policy. Although a bond and an insurance policy are two very different things, they are often confused with each other. This confusion is somewhat understandable. Both are essentially “emergency protection” in case the contractor encounters a major problem or cannot finish the project. Both are usually required by the owner before the start of work, as a way of making sure the job gets done. Very often the insurance company and the bonding company are the same large business entity.
Anyone who owns a car or gets health care is familiar with the concept of insurance. An insurance policy is a contract which obligates an insurance company to pay the policy-holder in the event of a loss. In construction projects, there are various layers of insurance purchased by the owner, the contractor, or both, before the project even begins. “Builder’s risk” insurance protects the insured from actual physical damage at the jobsite, such as fire or flood. “General liability” insurance covers the contractor for loss caused by serious and sometimes dangerous mistakes made in performance of the project, such as a collapsed scaffolding or electrical accident. Worker’s compensation insurance is required by Alaska state law, and covers the workers themselves in the event of injury or death. In every case, insurance is purchased through premiums and is paid out by the insurance carrier once the type and quantity of the loss is confirmed.
By comparison, a bond is essentially a line of credit. In the case of a performance bond, the contractor purchases the bond, and the bonding company agrees to guarantee the satisfactory performance of the project. If the contractor runs into a problem such as bankruptcy or legal liability, and can’t finish the project, the bonding company is obligated to spend whatever it takes, up to the amount of the bond, to get the project to completion.
Importantly, the builder is not off the hook once this bond coverage is triggered. If the bonding company spends one million dollars finishing the project, it will demand that the contractor pay back the million dollars once the project is complete, through a legal requirement called indemnity. In this way, the bond has acted as a sort of loan, with the bonding company loaning the money needed to finish the project, and then expecting to get paid back by the contractor. Of course, if the contractor is bankrupt or has other serious financial problems, this “loan” might never get repaid.
The confusion between insurance and bonds comes from the fact that both are utilized by an owner to make sure that the project is finished after something goes wrong. For example, if a worker makes a mistake and causes a fire which seriously damages the project, the first thing the owner and/or the contractor will do is contact the insurance company and see if the loss is covered. In this situation, the bond plays no role, because even though a loss has occurred there is no indication (yet) that the contractor will not be able to eventually finish the project.
Bond coverage, unlike insurance coverage, is often triggered by a “quiet problem” rather than a catastrophic loss. For example, an owner might believe that there is nothing wrong at all but then unexpectedly learns from a subcontractor or supplier that the contractor is having trouble paying its bills. Nonpayment to other parties is often a sign of a problem, and it may be that the contractor is in financial trouble and unable to finish the project on time and on budget.
After receiving notification of nonpayment, the owner will contact the bonding company. The owner will advise the bonding company that if the contractor is not going to be able to complete the project, then the bonding company will be expected to take over the job. Unlike in the example with fire and the insurance policy, this is not a situation in which the owner or contractor will be “made whole” following a loss. Instead, the contractor’s “line of credit” with the bonding company is essentially being tapped because the contractor does not have the financial means to proceed. The bonding company now has to pay to finish the project and must accept the fact that it may not recover what it has paid out from the troubled contractor. As one might imagine, the bonding company will be very focused on minimizing the cost of completion in this situation.
It is important for both contractors and owners (as well as architects, subcontractors, and suppliers) to understand both insurance and bonding before they get started on a project. All projects can take an unexpected turn. Unfortunately, cost overruns and mistakes on the jobsite are a common occurrence. Insurance and bonding will protect the owner in the event that things go wrong, but only within certain limits and under certain circumstances. Legal advice is almost always a good idea both before the project is underway and after something goes wrong.
In an article published in the most recent edition of The Bar Rag, the Alaska Bar Association’s quarterly journal, Birch Horton attorney Jason Brandeis writes about emerging legal issues and regulatory changes in Alaska’s marijuana industry.
In the piece, Brandeis discusses the expansion of the Alaska marijuana industry, which now includes over 100 licensed marijuana cultivators operating throughout the state and about forty retail stores open to the public. During the first half of 2017, the industry conducted $17 million in retail sales and generated over $1 million of state tax revenue.
The article also examines how regulators and businesses have responded to the industry’s growth. Regulators, for example, have been busy addressing the practical realities of managing a new industry in a state with unique geographic and supply chain concerns. Over the past few months, the State of Alaska’s Marijuana Control Board (MCB) and Alcohol & Marijuana Control Office (AMCO) have released a slate of new regulations intended to streamline and improve industry operations. Similarly, new marijuana businesses have similarly had to adjust on-the-fly. Having only recently navigated their way through complex local land use codes and a rigorous state licensing process, marijuana start-ups now find themselves having to quickly get up to speed on traditional business law practices such as corporate governance, tax collection, and employment law matters.
Finally, the article discusses how inconsistencies between state and federal law still pose problems for marijuana businesses in Alaska. The continued federal prohibition means that industry participants often do not have access to traditional banking services, requiring them to operate mostly in cash. Some of the challenges facing cash-only businesses were anticipated (such as security concerns and the inability to accept credit card payments), but others were not (such as the U.S. Postal Service’s refusal to mail a cultivator’s cash tax payments to the processing center in Anchorage).
The full article, “Federal rules complicate growing Alaska marijuana business,” explores these topics and other aspects of the Alaska marijuana industry in more detail. You can read the article here.
2017-10-23T18:57:16+00:00 October 23rd, 2017|
Big sister Molly checks Paige’s reflexive breathing.
Please welcome the newest member of the BHBC family, Paige Taylor Davies. Mom, associate Katie Davies, and dad Bryn, welcomed Paige into the world on September 28, 2017. Paige and her big sister, Molly, are excited to be two of the firm’s most junior associates!
On October 13, 2017, the U.S. Supreme Court denied the Writ of Certiorari in the case of Rothe v. Department of Defense/U.S. Small Business Administration (SBA), letting stand a DC Circuit Court of Appeals decision finding that the SBA 8(a) Program constitutional because the Federal government has a legitimate interest in remedying the effects of discrimination in Federal contracting, and that the Program is rationally related to achieving that goal. This is a significant victory for qualifying individuals and businesses, including many Alaska Native Corporations, Tribal, and NHO communities that participate in the SBA 8(a) program, as well as Women Owned Small Businesses and Service Disabled Veteran Owned Businesses that have benefited by the business development assistance provided by the SBA including access to set-aside contracts in the Federal procurement system.
Contested for nearly a two decades, Rothe is the latest in a series of cases challenging the constitutionality of the SBA’s 8(a) Program, alleging that the Program’s contracting preferences for certain entities violate the Fifth Amendment’s equal protection clause. In 2015, the DC District Court upheld the Program, finding the Program to survive strict constitutional scrutiny as the government had a compelling state interest in remediating discriminatory treatment and that Program was narrowly tailored to that interest. The matter was appealed to DC Circuit Court of Appeals on the questions of whether the Program included an impermissible racial classification and provides race-based preferences in federal contracting, and whether the Program indeed met the constitutional standard of review under “strict scrutiny.”
In September 2016, the DC Circuit Court of Appeals subsequently held the Program to be facially constitutional, finding that Section 8(a) itself does not contain a racial classification, and there are no racial or ethnic presumptions built into the statute itself; rather, the statute focuses on socially and economically disadvantaged small businesses. In a significant departure from the lower court’s decision the Circuit Court found a lower constitutional standard applicable, the “rational basis test,” requiring only that the Program be “rationally related to a legitimate state interest.” Additionally notable, the Circuit Court focused on the fact that Rothe challenged the underlying federal statute and not the SBA regulations that actually implement the 8(a) Program, indicating that a challenge to the SBA regulations might have yielded a different analysis.
Petitioning for a hearing before the United States Supreme Court this past April, Rothe argued that the Court erred in applying the lower standard and questioned, (1) whether a statutory program that requires an agency to distribute benefits to “socially disadvantaged individuals,” and defines “socially disadvantaged” in terms of membership in certain racial minority groups, classifies on the basis of race and is thus subject to strict scrutiny; and (2) whether a statute that may not classify exclusively on the basis of race, but uses race as a factor in determining eligibility for benefits, is subject to strict scrutiny. In denying the Petition for Certiorari without comment, the Supreme Court leaves the current application of the 8(a) Program intact.