2008
Week 14
April 12, 2008

Hi

Two of my bills went down in flames this week. With only three days of sessions left in my career as a senator, I suppose I had a secret fantasy of going out in a blaze of glory. Well, at least it is bright flames, and they did get attention.

One bill hardly counts as flames. I had a majority of the floor -- 22 of 40 -- but it was snowing in western Nebraska and mine was the last item on the agenda. So nine had left, which actually becomes nine negative votes. Had worked the bill -- to get health insurance for 8 librarians -- for three years, and had given up on it three times. As another senator said, I did not have enough zeroes on it to get proper respect.

Many of you have asked about the behind-the-scenes activity on bills and I have often commented on that. This bill is a classic and serves to show that struggle.

The purpose of the bill is to put more responsibility on the bar server or the package store owner to intercept the intoxicated person before (he) gets in a car and is likely to kill or injure someone in our families. Lesson #1: bars have more lobbyists than drunks.  Up to now, Ruth and I have focused on those who drink and drive. We have been a part of a group that has literally transformed the landscape for impaired drivers.  Loopholes are mostly gone, penalties are greatly increased, prosecutors have tools which will work, and judges who care are able to get the attention of a repeat offender. We have drafted and passed dozens of bills, with help from groups, friends, officers, prosecutors, and on. It was not easy, but frankly, if you can show a bill will reduce the number of drunk drivers the legislature will back you. Senators are becoming very upset with the mayhem.

So three years ago we decided to include the merchants. That bartender is the last person to see the intoxicated person and can, with training, make a winsome offer to find a ride home But bars have lobbyists (!) and they are very clever as well as deceptive. (Most lobbyists have great integrity and will even tell you what the opposition will say. But we have a few who have more creative thought than integrity.)

I want to motivate bar and package owners (and grocers and other sellers) to train their servers/clerks and ride herd on them, checking to be sure they follow the regulations. So three years ago we devised a bill that would make the bar (and others I will not continue to name) liable if an intoxicated or underage patron hurt someone after leaving the bar. Though Nebraska had no such law, 44 states did. A bar could be sued for damages.

The bars responded by asking for some protection if they are doing a good job. As, an affirmative defense in court if they train and watch their servers. We agreed. We went one better. We offered an absolute block to financial judgment if they did their part. We then took a year to create courses and certification. I insisted this be state operated, so that there would be a dependable record of those who are trained, for use in court.

We focused on two tests of behavior, already in law and/or regulations: do not sell to a minor and do not sell to a noticeable intoxicated person. Every state has those restrictions. Noticeably is a key word. If the fellow has been drinking all day somewhere else, but does not show it so that other patrons will notice it, does not count. If the patron does not show it, but gets into a car and hits someone, testing out drunk, it does not count against the bar. Must be noticeably intoxicated at the time of sale.

Even though we had the agreement, the bars started shooting with dishonest stories, to all the senators. They expressed outrage that we would penalize them for serving a man who has been drinking but does not show it. They knew that is not true. And about suing a bar because someone who had been to that bar tested over. They knew that is not true, even now, because a court would recognize the guy may have had a pint under the seat and become more impaired as he drove.

They could not stop us from the penalty for serving a minor. That bill is the major new piece of legislation of anything we have and we passed it last May. It even includes an individual, like a parent, who serves kids or has a kegger. One of these days there will be a case in court where a parent loses home and business in such a lawsuit. THEN we will come close to an end on these keggers and all sales to minors.

However, they stopped action on impaired adults. Which they had promised to support. So this year they said that server training is wonderful and they would accept it if we made it mandatory. By law. I said no to that as it is useless. Remember, I want the owner to be motivated. Law does not motivate, plus we have no enforcement in a bar. Keep it voluntary, with their insurance agent watching to see that they do it. They pleaded, with the promise this would make them good citizens. For most it would, since most responsible owners do the training now, to protect from bad public relations.

I wanted to get at the bad actors, but they kept up the barrage of false stories and we could not get the bill out. So in the last week I groaned and agreed to mandatory. Then they proceeded to take that apart, saying it would be 55,000 servers and that would swamp the system. Never mind that three years ago we set up the training system to handle everyone. Senators got nervous and the bill failed to move.

The final piece of behind-the-scenes is that we will have an interim study this fall, to sort out facts from nonsense, and find another senator to carry the bill. It will come, and if I have anything to say about it -- and I will -- it will be tougher, without the promises of protection if they do not train servers and monitor them. Voluntarily.

It will reduce loss of lives, paralyzed victims, and countless hurting families. I noted in the beginning that so-called drunks are less resistant than a few of the bars. The bottom line remains the same: when the public becomes outraged at the senseless mayhem, the problem of drinking drivers will stop. They have done that in other countries.

We live in hope,

Lowen

p.s. Last call. If you plan to come to my graduation lunch at the capitol Thursday noon, I do need a firm head count by Monday night. Many have responded. It will be fun!