BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2486
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          Date of Hearing:  March 23, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                 AB 2486 (Feuer) - As Introduced:  February 19, 2010
           
                               As Proposed to Be Amended
           
          SUBJECT  :  SOCIAL HOST PARENTAL RESPONSIBILITY: KNOWINGLY  
          PROVIDING ALCOHOL TO MINORS

           KEY ISSUE  :  SHOULD CALIFORNIA HOLD ADULTS LEGALLY RESPONSIBLE  
          FOR UNDERAGE DRINKING AT THEIR HOMES WHEN THEY KNOWINGLY PROVIDE  
          THE ALCOHOL TO THE MINORS WHO ARE SUBSEQUENTLY INJURED OR  
          KILLED?   

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          This non-controversial parental responsibility bill seeks to  
          enact the Teen Alcohol Safety Act of 2010, which seeks to add  
          California to the large preponderance of states that impose  
          potential "social host" liability on adults who knowingly  
          provide alcohol to minors who are subsequently injured or killed  
          as a result of the underage drinking.  Currently, unlike the  
          approach of the great majority of states, a social host in  
          California who provides alcoholic beverages to any person,  
          including even minors, may never be held legally responsible for  
          any damages suffered by that person or by any third person  
          resulting from consumption of those beverages - even if serious  
          injuries or deaths result to underage drinking minors.  This  
          bill seeks to take away the liability shield given to parental  
          social hosts in California and instead holds adults legally  
          accountable only when they knowingly provide alcohol to minors  
          who are subsequently injured or killed.  In support of the bill,  
          proponents, who include the devastated family members of minors  
          who have died from binge drinking as well as both the plaintiffs  
          and defense bar and a host of law enforcement and public safety  
          groups, state that underage drinking is a widespread and  
          increasingly dangerous problem which has devastating  
          consequences for minors and their families and friends.  They  
          note that targeted social host liability has proved itself in  
          many other states as one potential way to help discourage  








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          underage drinking.  Proponents also believe firmly that holding  
          adults legally responsible when they knowingly provide alcohol  
          to minors will help reduce access to alcohol for minors and in  
          turn help reduce the number of preventable alcohol-related  
          childhood deaths and injuries.  There is no known opposition to  
          this public health measure.

           SUMMARY  :  Seeks to enact the Teen Alcohol Safety Act of 2010,  
          adding California to the large preponderance of states that  
          impose potential "social host" liability on adults who knowingly  
          provide alcohol to minors who are subsequently injured or killed  
          as a result of this lack of parental care.  Specifically,  this  
          bill:

           1)Provides that a social host, as narrowly defined, who is 21  
            years of age or older and who knowingly furnishes alcoholic  
            beverages to a person under 21 years of age may be held  
            legally accountable for damages suffered by that person, or  
            for injury to the person or property, or death of, any third  
            person resulting from the consumption of those beverages.

          2)Carefully limits the measure's scope, pursuant to Author's  
            Amendments described more fully below, by defining a "social  
            host" as only those adults who provide alcohol to guests at  
            their residence with no motive for pecuniary gain who are not  
            licensed or commercial vendors of alcohol or anyone who is  
            required to obtain a license to provide alcohol for a social  
            function. 

           EXISTING LAW  :

          1)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.  (Civil Code section  
            1714(a).  Hereafter, all references are to that code unless  
            otherwise noted.)

          2)States that it is the intent of the Legislature to abrogate  
            the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d  
            153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, and  
            Coulter v. Superior Court (1978) 21 Cal.3d 144 and to  
            reinstate the prior judicial interpretation of this section as  








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            it relates to proximate cause for injuries incurred as a  
            result of furnishing alcoholic beverages to an intoxicated  
            person, namely that the furnishing of alcoholic beverages is  
            not the proximate cause of injuries resulting from  
            intoxication, but rather the consumption of alcoholic  
            beverages is the proximate cause of injuries inflicted upon  
            another by an intoxicated person.  (Section 1714(b).)

          3)Provides (unlike the approach of the great majority of states)  
            that no social host in California who furnishes alcoholic  
            beverages to any person, including minors, may be held legally  
            accountable 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.  (Section  
            1714(c).)

          4)Provides that a social host may be found criminally liable if,  
            "A parent or legal guardian who knowingly permits his or his  
            child, or a person in the company of the child, or both, who  
            are under the age of 18 years, to consume an alcoholic  
            beverage or use a controlled substance at the home of the  
            parent or legal guardian" under specified conditions.   
            (Business and Professions Code section 25658.2.)

          5)Provides that an insurer is not liable for a loss caused by  
            the willful act of the insured.  (Insurance Code section 533.)
             
           COMMENTS  :  This non-controversial parental responsibility bill  
          seeks to enact the Teen Alcohol Safety Act of 2010, which seeks  
          to add California to the large preponderance of states who  
          impose potential "social host" liability on those adults who  
          knowingly provide alcohol to minors who are subsequently injured  
          or killed as a result of this lack of parental responsibility.   
          Currently, unlike the approach of the great majority of states,  
          a social host in California who provides alcoholic beverages to  
          any person, including even minors, may never be held legally  
          responsible for any damages suffered by that person or by any  
          third person resulting from consumption of those beverages -  
          even if serious injuries or deaths result to minors.  

          In support of this measure the author states: 

               The Teen Alcohol Safety Act of 2010 is all about parental  
               responsibility.  It is a measure designed to save young  
               lives by acting as a long-needed disincentive to  








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               irresponsible adults who knowingly provide underage teens  
               with alcohol in their homes. California has seen a spate of  
               heart-wrenching tragedies in recent years, including the  
               preventable recent death of Shelby Allen, as teens have  
               increasingly engaged in bouts of binge drinking that have  
               led to hospitalizations and deaths. The most shocking  
               episodes involved parents or other adults who knowingly  
               provide alcohol to underage minors - and this bill only  
               targets those most egregious situations.

               Although it is a crime under state law to supply alcohol to  
               a minor, California is one of only a small handful of  
               states that do not provide for parental responsibility in  
               such shocking cases. In order to augment appropriate  
               parental responsibility and bolster the deterrence sought  
               in the preponderance of states across the country, this  
               targeted measure seeks to correct that glaring restriction  
               in our law by ensuring that a civil action can be brought  
               only against an adult "social host" who knowingly provides  
               alcohol to minors at the front end of such tragedies, in  
               order to appropriately assist families and their minors who  
               are harmed by this irresponsible misconduct.  It is truly  
               not a clich? to note that if this measure saves only one  
               child from a binge drinking death, it will be well worth  
               it.

          In support of the narrow approach taken in the bill, the author  
          underscores the measure is not about somehow imposing "automatic  
          liability" on any adult who may have inadvertently provided  
          access to alcohol by a minor.  The bill simply removes the  
          absolute bar to any potential liability in any situations for  
          adult social hosts who knowingly provide alcohol to minors.   
          Under the bill, the families of a minor injured or killed by  
          alcohol will still need to prove in court all the elements of  
          negligence - that an adult social host, as narrowly defined  
          below, breached his or her responsibility to uphold the law,  
          knowingly provided alcohol to the child, and injuries or death  
          thereby resulted from this action. 

           States That Currently Permit Parental Responsibility in Their  
          Social Host Laws  :  After an extensive survey conducted by  
          Committee counsel, it appears that the following approximately  
          80% (39) of the fifty states permit social host civil liability  
          when adults knowingly provide alcohol to minors:  Alabama,  
          Alaska, Arizona, Arkansas, Colorado, Connecticut, Florida,  








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          Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Louisiana,  
          Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana,  
          Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New  
          York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania,  
          South Carolina, Tennessee, Texas, Utah, Vermont, Washington,  
          Wisconsin, and Wyoming.  Other states have used statutory  
          language describing social host liability in a manner that has  
          allowed the courts to develop social host liability under common  
          law when social hosts provide alcohol to minors. 

           The Problem of Underage Drinking  :  According to the National  
          Institutes of Health, underage alcohol use remains a pervasive  
          and persistent problem with serious health and safety  
          consequences to minors.  Alcohol is literally the drug of choice  
          for most young people in the United States, and it is still used  
          by more young people than tobacco or illegal drugs.  Indeed,  
          underage alcohol use actually kills more young people than all  
          illegal drugs combined -- and alcohol is the leading contributor  
          to death from injuries, which is the main cause of death for  
          people under the age of twenty-one.  Tragically, every year,  
          roughly 5,000 young people under the age of twenty-one die from  
          causes related to underage drinking.  According to the Pacific  
          Institute for Research and Evaluation ("PIRE"), in California  
          alone, an estimated 136 traffic fatalities and 7,300 nonfatal  
          traffic injuries involved an underage drinker in one recent  
          year.  In addition to traffic fatalities and injuries, PIRE  
          reports that underage alcohol consumption is also connected to  
          crimes and other risky behavior by minors.  

          Underage drinking is also linked to future alcohol dependence.   
          According to data from the National Epidemiologic Survey on  
          Alcohol and Related Conditions, young people who began drinking  
          under the age of fifteen-years old are four times more likely to  
          develop alcohol dependence during their lifetime than those who  
          began drinking at age twenty-one years old or later.  (U.S.  
          Department of Health and Human Services. The Surgeon General's  
          Call to Action to Prevent and Reduce Underage Drinking. U.S.  
          Department of Heath and Human Services, Office of the Surgeon  
          General, 2007). 

           The Shocking Statistics Showing A Remarkable Number of Parents  
          Are Knowingly Providing Alcohol to Minors  :  Based on the  
          devastating consequences tied to underage drinking, it is useful  
          to consider how minors obtain access to alcohol.  According to a  
          2005 American Medical Association (AMA) survey, over half of the  








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          teens surveyed reported they obtained alcohol.  Amazingly,  
          one-third of these teens responded that it was easy to get  
          alcohol from their own consenting parents, and almost half  
          responded that it was easy to get alcohol from a friend's  
          parents.  In addition, one in four teens has attended a party  
          where minors were drinking directly in the presence of parents.   
          According to a US Surgeon General's "Call for Action" report,  
          social gatherings are a common way for underage drinkers to gain  
          access to alcohol.  This is especially problematic because such  
          settings, where many drinkers are involved, often lead to binge  
          drinking by youth and much greater risk of injuries or death. 

           The Allen Family's Terrible Recent Tragedy  :  The recent tragedy  
          of Shelby Allen has helped inspire this measure.  In December of  
          2008, Shelby Allen, a 17-year-old high school student, died of  
          acute alcohol poisoning the morning after an overnight gathering  
          with other teenagers at a friend's house.  Shelby became  
          violently ill and lapsed into a semiconscious state during the  
          night, and when she was discovered the next morning, this very  
          promising teenager passed away.  Though the friend's parents  
          were home that night, the facts of the case remain unclear.  
          Shelby's parents considered using the California civil courts in  
          an attempt to gain answers about this tragedy, but were shocked  
          to discover, as many other parents have, that unlike most other  
          states, California's current law continues to grant all social  
          hosts complete and unqualified immunity from all legal  
          responsibility, even in cases involving the deaths of minors.

          Shelby's tragic death is just one example of the devastating  
          consequences that can follow underage drinking. As a result,  
          many groups, such as the American Academy of Pediatrics and the  
          PIRE Institute noted earlier, recommend our legal system should  
          discourage parents from allowing underage drinking in the home,  
          and they strongly support the establishment and enforcement of  
          targeted social host laws like the one proffered in this measure  
          to reduce access to alcohol by underage youth.  Proponents of  
          the bill believe imposing potential civil liability on adult  
          social hosts who knowingly provide alcohol to minors will not  
          only enable families of victims to have a possible reasonable  
          civil recourse, but will also send a powerful message that  
          providing alcohol to underage youth is morally reprehensible  
          with potential serious legal consequences.  

           Social Host Liability Generally  :  In its simplest form, social  
          hosts are generally defined in many state laws as persons who  








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          are not commercial vendors of alcohol or licensed to sell  
          alcohol - though as noted below, this bill seeks to enact a much  
          narrower definition of adults covered by the bill.  Social host  
          laws across the country have traditionally held social hosts  
          liable for the drinking that occurs in their homes.  There are  
          two types of liability that can traditionally apply under social  
          host laws: criminal liability and civil liability. Criminal  
          social host liability involves a statutory prohibition that is  
          imposed by the state through means of criminal prosecution.  An  
          increasing number of cities and counties throughout California  
          and the country have focused on criminal liability approaches  
          (see below).  In contrast, civil social host liability imposes a  
          duty on social hosts that can be enforced through civil actions  
          brought by injured parties.  In a typical civil action, an  
          injured party would need to establish all the elements of a  
          cause of action for negligence, including a duty of care, a  
          breach of that duty, proximate and actual causation, and  
          damages. 

           Increasing Numbers of Local Social Host Criminal Approaches  :  As  
          noted above, four out of five states across the country have  
          adopted some form of social host liability.  In addition, a  
          recent trend has emerged where cities and counties are also  
          adopting their own targeted social host ordinances which impose  
          some form of liability on social hosts to prevent underage  
          drinking parties.  Under typical city or county criminal  
          ordinances, social host liability is treated as an infraction or  
          a misdemeanor, resulting in fines and/or jail time.  Local  
          social host laws generally focus on the venues in which underage  
          drinking occurs, rather than on the furnishing of the alcohol by  
          an adult.  According to co-sponsor Mothers Against Drunk  
          Driving, as of 2007, over forty California cities and counties  
          have adopted some form of local social host laws.  For example,  
          Ventura County passed an ordinance that establishes that it is a  
          civil violation and a public nuisance constituting an immediate  
          threat to public health for any responsible person to allow a  
          loud and unruly gathering at a private residence at which  
          underage drinking occurs, and that a violation subjects social  
          hosts to a penalty of one-thousand dollars in addition to any  
          recovery of emergency response costs.  Other localities take  
          similar approaches. 

           Legal Backdrop of Civil Social Host Liability in California  :   
          Until the 1970s, California generally followed the common law  
          rule that it is the consumption, rather than the furnishing, of  








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          alcohol that is the "proximate" cause of any subsequent harm  
          caused by the intoxicated person.  This was true even though  
          California, like virtually all other states, had seemingly  
          inconsistently, long had statutes making it a misdemeanor to  
          serve alcohol to a minor.  However in a series of cases in the  
          1970s, the California Supreme Court rejected the traditional  
          common law reasoning barring parental responsibility for  
          providing alcohol to others - at least in cases where the  
          alcohol was furnished to someone who was a minor or an obviously  
          intoxicated adult.  In Vesely v. Sager (1971), the California  
          Supreme Court determined that civil liability could be imposed  
          upon a vendor of alcoholic beverages for providing drinks to a  
          customer who, as a result of intoxication, injured a third  
          person.  Then the Court subsequently reiterated its rejection of  
          the traditional common law rule in Bernhard v. Harrah's Club in  
          1976, finding a commercial vendor liable to an injured third  
          party for serving alcohol to an obviously intoxicated patron who  
          subsequently drove and veered across a dividing line into the  
          plaintiff's vehicle.  (16 Cal. 3d 313).  Finally, in 1978, in  
          Coulter v. Superior Court of San Mateo County (1978) 21 Cal. 3d  
          144, the Court expressly extended liability to "social hosts,"  
          or non-commercial furnishers of alcohol.  The Court held that a  
          social host who furnishes alcoholic beverages to an obviously  
          intoxicated person, under circumstances which create a  
          reasonably foreseeable risk of harm to others, could be held  
          liable to third persons who were subsequently injured by the  
          intoxicated guest.    

           The Legislature Rejects the State Supreme Court's Social Host  
          Responsibility Rule in 1978:   Four months after the Supreme  
          Court's landmark Coulter decision holding social hosts  
          potentially legally responsible for their actions, the  
          California Legislature in 1978 amended relevant sections of both  
          the Business and Professions Code and the Civil Code in order to  
          restore the traditional common law rule that had shielded social  
          hosts from liability altogether.  The legislation, subsequently  
          signed into law by then-Governor Jerry Brown, stated the intent  
          of the Legislature to abrogate the holdings of Vesely, Bernhard,  
          and Coulter in order to completely shield social hosts in  
          California from any potential legal responsibility, even in  
          those cases involving the knowing provision of alcohol to  
          minors.

          This bill therefore, thirty two years later - in response to the  
          recent reports noted above showing that underage alcohol use  








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          actually kills more young people than all illegal drugs combined  
          - reverses this long-held liability shield in those narrow  
          circumstances where an adult social host knowingly provides  
          alcohol to minors who are subsequently injured or killed as a  
          result of parental irresponsibility.  

           Author's Clarifying Amendment  :  In order to clarify that the  
          bill's parental responsibility provision is carefully targeted  
          to only those situations where a parent or other adult knowingly  
          provides alcohol to minors at his or her residence, the author  
          wisely is amending the bill with the following narrow definition  
          of who is a social host for purposes of the legislation: 

          On page 2, after line 24, insert:

            (e)  For purposed of this Act, a social host is one who  
            provides alcohol to guests at his or her residence with no  
            motive for pecuniary gain regardless whether some remuneration  
            is given for the alcohol.  A licensed or commercial vendor of  
            alcohol, or anyone required to obtain a license to provide  
            alcohol for a social function, is not a social host for  
            purposes of this Act.

           Arguments In Support  :  As noted above, proponents assert social  
          host liability has long proved itself in most states across the  
          country to be a helpful deterrence to underage drinking.  By  
          holding adults potentially accountable for the harms that follow  
          underage drinking facilitated by their knowingly providing  
          alcohol to kids, adults will, proponents note, be much more  
          hesitant to provide alcohol to minors-in turn, directly reducing  
          the ability for minors to access alcohol.  According to the  
          measure's co-sponsor, Mothers Against Drunk Driving (MADD),  
          social host laws encourage adults to be as vigilant as possible  
          about underage consumption of alcohol.  MADD further contends  
            that some studies have shown that social host liability reduces  
          binge drinking as well as drinking and driving by young  
          drinkers.  Ultimately, proponents contend the prevalence of  
          underage drinking and its tragic consequences requires as many  
          tools as possible to reduce underage drinking, including the use  
          of potential civil liability.

          In support, the California Defense Counsel write that "AB 2486  
          is designed to make a common-sense correction to the 'social  
          host' immunity presently contained in Civil Code Section 1714.   
          The present general immunity for social hosts, founded on sound  








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          social policy, should not operate to shield persons who  
          knowingly furnish alcoholic beverages to minors.  In contrast  
          with the general principle, such an immunity is not sound social  
          policy? Given the risks associated with underage drinking, it is  
          unconscionable that the law would operate to shield from  
          liability persons who knowingly break the law with respect to  
          in-home social events.  AB 2486 makes a narrow, targeted change  
          to the social host immunity."

          In further support of the measure, co-sponsor Consumer Attorneys  
          of California writes in part that:

               AB 2486 is designed to be one more important tool in the  
               fight against underage drinking.  Simply put, AB 2486 will  
               prevent teen drinking tragedies and will bring California  
               law into compliance with the majority of other states that  
               have laws that protect their minors? Under AB 2486, the  
               social host is not automatically liable for the injuries or  
               deaths to the minor or any third party.  AB 2486 simply  
               removes an absolute legal impediment for the family to  
               proceed.  The family of the injured or killed would still  
               need to prove in court all of the elements of negligence:   
               A duty of care existed, a breach of that duty occurred,  
               causation, and damages.  Negligence, as a basis for social  
               host liability, is not automatic.  Each element must be  
               proven in order to give rise to social host liability.   
               And, AB 2486 is extremely limited as it only applies to  
               social hosts who knowingly provide alcohol to minors? We  
               think that if people knew they were not protected under the  
               law and could be exposed to civil damages, conduct would  
               change.  We want to encourage people who have minor guests  
               to NOT provide alcohol?

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Mothers Against Drunk Driving (MADD, co-sponsor)
          Consumer Attorneys (CAOC, co-sponsor)
          Association for Los Angeles Deputy Sheriffs
          California Defense Counsel
          California PTA
          Consumer Federation of California
          Peace Officers Research Association of California
          Riverside Sheriffs' Association








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          Steve and Debbie Allen

           Opposition 
          
          None on file
           
          Analysis Prepared by  :  Drew Liebert and Eunie Kim / JUD. / (916)  
          319-2334