I. Assembly Bill 2073
On August 22, 2014, Assembly Bill 2073 authored by Assembly Member Frank Bigelow was signed by Governor Brown and will become law effective January 1, 2015. Existing law generally prohibits the sale or consumption of alcoholic beverages at a public school house or any grounds thereof. The law has evolved to provide for many exceptions, sixteen (16) to be exact. Assemblyman Bigelow’s bill goes one step further in an attempt to alleviate the financial constraints on cash-strapped schools. “Our schools are losing out on extra revenue that could be gained from allowing groups within their community to rent out on-campus centers,” Assemblyman Bigelow stated. “This bill would allow local organizations like the PTA and FFA to host fundraisers and events to help benefit our community during these economically challenging times.”
Nobody disputes that times have changed, financially and morally, since 1953 when the law was originally enacted. However, is this bill a recognition that California law in this area is unnecessarily puritanical and hampers volunteer fundraising? Or, is it an invitation for personal injury lawsuits? Certainly time may answer these questions; however, the answer will not be found in the plain wording of the statute.
II. Vagaries May Be A Problem
Current law prohibits anyone from, “possessing, consuming, selling, giving, or delivering to any other person, any alcoholic beverage in or on any public school house or any grounds of the school house…” California Bus. & Prof Code §25608 (a). Violation of this statute is a misdemeanor. Although the prohibition appears subsumed in the exceptions, the recent legislation goes significantly farther allowing alcoholic beverages to be consumed at social events held on school houses or school facilities where a license or permit has been acquired and pupils are not on the grounds. On first analysis, the exception appears to give K-12 districts the flexibility to rent facilities for fundraisers and other events that include alcohol. However, as in most things, the devil is in the details.
Initially, in order to avoid a misdemeanor violation under this exception, the user must obtain appropriate state and local permits for alcohol consumption on public premises. This is no small feat. Furthermore, the educational institution must give great consideration to where the social event takes place and how the alcoholic beverages are distributed. The exception provides great discretion regarding the facilities on which alcohol may be consumed. The exception is not limited to school houses, but is expressly extended to other facilities owned and operated by the school.
Does this mean the football field, swimming pool, or multi-use room? The answer is likely yes; outdoor spaces would presumably qualify; however, they are not expressly identified in the statutory language like office complexes or conference centers. Furthermore, the exception prohibits alcohol distribution when, “pupils are not on the grounds,” but is it a misdemeanor violation if students are present? Can children be present at an after school event where alcohol is being consumed? Finally, this amendment did not change the existing language of section 25608 prohibiting alcohol sales. Although the law allows alcohol to be acquired, possessed, used or consumed, there is no express language expressly authorizing users to sell alcohol. All the aforementioned questions beg the ultimate question, is the potential fundraising venue worth the risk?
III. Do Not Forget Risk Management
Alcohol is clearly an acceptable social lubricant that would enhance communal activities and fundraising efforts. However, before allowing community groups to consume alcohol on school facilities or premises, a school district should consider their legal exposure. Initially, Assembly Member Bigelow’s bill leaves many questions unanswered regarding the presence of students and alcohol sales. User groups or school districts do not want to inadvertently commit a misdemeanor. However, one question can be answered, any activity involving alcohol increases liability concerns. Consequently, when considering allowing user groups to consume alcohol on a school premises or in an educational institution, you should consult with legal counsel and your liability insurance carrier. You should determine whether your facilities use agreements are consistent with the new statute. You may want to consider additional event insurance, or require local law enforcement involvement. Finally, you may want to consult with local authorities or the Department of Alcoholic Beverage Control to determine their understanding of the new exception. A.B. 2073 is clearly a well-intentioned effort to allow educational institutions to use facilities for fundraising, but it may create more work and problems than it solves.
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