Legislature(2017 - 2018)GRUENBERG 120
01/24/2018 01:00 PM House JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB63 | |
| HB216 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 63 | TELECONFERENCED | |
| += | HB 216 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 63-REGULATION OF SMOKING
1:01:42 PM
CHAIR CLAMAN announced that the first order of business would be
CS FOR SENATE BILL NO. 63(FIN), "An Act prohibiting smoking in
certain places; relating to education on the smoking
prohibition; and providing for an effective date." [Before the
committee was HCS CSSB 63(CRA).]
1:02:26 PM
CHAIR CLAMAN, in response to a query from Representative
Eastman, reminded the committee that public testimony on HCS
CSSB 63(CRA) had been closed during the last scheduled hearing
on 1/22/18.
1:02:54 PM
SENATOR MICCICHE, Alaska State Legislature, as prime sponsor of
SB 63, referred to information on veterans' clubs, which he had
forwarded to the committee following the 1/22/18 hearing. He
commented that many grew up during a time when there was
secondhand smoking in the house or in a car with the windows
closed. He quoted from a USA Today article, dated 3/9/14, which
stated that during the Korean and Vietnam Wars, soldiers
received cigarettes with their field rations, and that changed
in 1986 when the Pentagon banned use of tobacco and increased
the number of designated nonsmoking areas. Senator Micciche
said "things have changed," and CSSB 63(FIN) "brings us into
that modern age of protecting those that choose to not smoke and
protecting their rights to breathe smoke-free air." He
expressed appreciation for the efforts of the committee on the
proposed legislation.
1:04:46 PM
CHAIR CLAMAN said the committee would consider amendments, and
he advised that Legislative Legal and Research Services would
have permission to make any technical and conforming changes to
any amendments adopted by the committee. He outlined a plan for
the timing he would allow for addressing amendments.
1:05:25 PM
REPRESENTATIVE KOPP moved to adopt Amendment 1, labeled 30-
LS0024\T.4, Martin, 1/22/18, which read as follows:
Page 4, lines 2 - 5:
Delete all material and insert:
"(e) Notwithstanding (a) and (b) of this
section, smoking may be permitted in a separate
enclosed smoking area located in a terminal for
international passengers who are in transit in a
state-owned and state-operated international airport
and who are restricted by federal law from leaving the
airport, if the smoking area is vented directly to an
outdoor area that is not an area where smoking is
prohibited under (c) of this section."
1:05:28 PM
REPRESENTATIVE FANSLER objected.
1:05:34 PM
REPRESENTATIVE KOPP drew attention to language currently
proposed under SB 63, on page 4, lines 2-4, which read:
(e) Notwithstanding (a) and (b) of this section,
an individual may smoke in a separate enclosed smoking
area located in an airport if the smoking area is
vented directly to an outdoor area that is not an area
where smoking is prohibited under (c) of this section.
REPRESENTATIVE KOPP said he is not aware any state-owned or
public airports that have separate enclosed smoking areas. He
said [Amendment 1] would apply to the international airport
system where passengers are restricted by federal law from
leaving the airport when they arrive in the international
terminal. Those international terminals are set up with smoking
rooms that have ventilation to the outside of the terminal,
which he said he thinks is appropriate for international
travelers that do not have an option to leave the airport. He
said, "I have not heard from any airport operator ... that they
have ... an airport that they would like to build a smoking
room. That would be contrary to this amendment. I mean, I'd
certainly like to hear from them if they do. I'm unaware that
there's a facility in this state that would ... take issue with
this." He opined that the international airport system needs
Amendment 1; it would apply to both the Anchorage and Fairbanks
International Airports. He said he spoke to the bill sponsor,
who supports Amendment 1.
1:07:40 PM
REPRESENTATIVE LEDOUX asked whether federal law requires a
designated smoking place for international passengers.
1:08:09 PM
SENATOR MICCICHE answered there is not a requirement. He said
he thinks Amendment 1 is "a fairness amendment" that would offer
[a place to smoke for] someone who has been on a flight for many
hours and cannot leave the airport.
REPRESENTATIVE LEDOUX surmised there are probably Alaskans who
work in international airports, and she asked, "Why wouldn't you
be just as concerned with those residents who are working ...
there than you would be about anybody else?"
SENATOR MICCICHE indicated that there are places where smoking
is allowed that are not places where employees have to be to
serve customers.
REPRESENTATIVE LEDOUX asked if the bill specifically states that
employees cannot go out to the designated smoking areas.
SENATOR MICCICHE responded that the bill states that those
employees are not required to serve those smoking areas.
1:11:01 PM
REPRESENTATIVE FANSLER offered his understanding that Amendment
1 would set a more rigid standard.
1:12:00 PM
REPRESENTATIVE KOPP confirmed the proposed amendment would
create a more stringent requirement. He said it goes back to a
previous version of the proposed legislation that was requested
by the director of the international airport system. He
reiterated that he is not aware of anyone from a municipal or
state airport asking for a smoke room; however, there are two
international airports that are set up with "directly ventilated
rooms for international travelers."
1:12:47 PM
REPRESENTATIVE LEDOUX asked for clarification whether HCS CSSB
63(STA), without amendment, has "an airport exception."
SENATOR MICCICHE explained that a legislative staff member had
suggested the bill include all airports, but feedback from the
Department of Transportation & Public Facilities (DOT&PF) and
municipalities showed that those airports in the state that are
not international airports do not want to build ventilated smoke
rooms, because there already are places at those airports for
patrons to go outside to smoke. He added, "And the one case
that you can't go outside is the one case where we've made an
exception, and that is the international airport in Anchorage."
1:14:07 PM
CHAIR CLAMAN surmised Amendment 1 would require a municipal
airport, such as the one in Bethel, Alaska, to get permission
from the legislature to build a smoke room; currently municipal
airports show no interest in building smoke rooms at their
airport facilities. He offered his understanding that
Representative Kopp was nodding in agreement.
1:15:04 PM
REPRESENTATIVE KOPP said a consistent theme of the bill is to
have safe public work spaces [by requiring smokers to] smoke
outdoors. He said [Amendment 1] "just continues with that
theme."
1:15:30 PM
CHAIR CLAMAN asked if the objection was maintained.
REPRESENTATIVE FANSLER answered no.
CHAIR CLAMAN announced there being no further objection,
Amendment 1 was adopted.
1:15:42 PM
REPRESENTATIVE KOPP moved to adopt Amendment 2, labeled 30-
LS0024\T.5, Martin, 1/22/18, which read as follows:
Page 3, lines 20 - 21:
Delete all material and insert:
"(ii) is separated from the other business
or building in a manner that does not allow e-
cigarette vapor or aerosol to travel into the other
business or building;"
REPRESENTATIVE FANSLER objected.
1:15:53 PM
REPRESENTATIVE KOPP directed attention to language on page 3,
lines 20-21, which read:
(ii) has a ventilation system vented to
an area where smoking is not prohibited:
REPRESENTATIVE KOPP said installing ventilation systems can be
expensive. The proposed amendment recognizes that there are
well-established businesses that have good relationships with
their neighbors. It would replace the ventilation system
language with "is separated from the other business or building
in a manner that does not allow e-cigarette vapor or aerosol to
travel into the other business or building". He said this is
consistent with a "complaint-driven" theme. He added, "If
people are fine with you there, this doesn't say that you would
have to completely redo your ventilation system; it just says
that ... you're not allowing the vapor or aerosol to travel into
the other business or building, but without putting ... the
positive requirement of also doing the ventilation system."
REPRESENTATIVE KOPP pointed to language on page 2, lines 23-25,
which states that an individual would not be prohibited from
smoking in "a private residence that is in a building where
another residence provides paid child care or care for adults".
He said he thinks [Amendment 2] would make the proposed bill
"internally consistent" while giving e-cig stores more liberty
in how they are allowed to establish their businesses.
1:18:09 PM
CHAIR CLAMAN asked if the objection was maintained.
REPRESENTATIVE FANSLER answered no.
1:18:12 PM
CHAIR CLAMAN asked if there was further objection to the motion
to adopt Amendment 2. There being none, it was so ordered.
1:18:36 PM
REPRESENTATIVE LEDOUX requested the committee hear from a
representative from the Department of Health and Social Services
regarding the department's fiscal note [included in the
committee packet]. She directed attention to the second line of
the second paragraph of the fiscal analysis, which read as
follows:
Ideally, the Division of Behavioral Health would
consider this as a form of "passive enforcement" which
could be performed in addition to the other duties
assigned to the Tobacco Investigators.
REPRESENTATIVE LEDOUX opined the statement is not one that
"bodes really well for a fiscal note." She asked if the fiscal
note was based on "hopes and dreams" or, as she said she would
expect, "cold, hard reality."
1:21:00 PM
The committee took an at-ease from 1:21 p.m. to 1:23 p.m. to
address a technical problem.
1:23:02 PM
JOE DARNELL, Investigator IV, Tobacco Youth Education &
Enforcement Program, Division of Behavioral Health (DBH),
Department of Health and Social Services (DHSS), explained that
the DBH is using a passive enforcement matrix that it adopted
from the Municipality of Anchorage, which has had the ordinance
in place since 2007. He said the division does not see [the
fiscal note] as "we're hoping." He relayed that in the last 10
years the Municipality of Anchorage has written two citations
relating to its smoke-free ordinance and has had only 200
complaints. He said the division considers that the fiscal note
will be zero, in terms of enforcement.
1:24:20 PM
REPRESENTATIVE LEDOUX drew attention to language in the third
paragraph of the fiscal note analysis, which read:
If the intent is that the type of sign provided is an
electronic downloadable copy of a sample sign, the
cost would be minimal regardless of the number of
signs requested. However, if the intent is for more
durable manufactured or printed signage, then
additional resources would be needed.
REPRESENTATIVE LEDOUX asked, "Intent is created by the
legislature, is it not?"
MR. DARNELL answered that's correct.
REPRESENTATIVE LEDOUX asked, "So, what does the bill require?"
MR. DARNELL answered that the bill requires that signage needs
to be posted.
REPRESENTATIVE LEDOUX asked about signage that is posted
outdoors.
MR. DARNELL noted that [signage] falls under the [Division] of
Public Health. Notwithstanding that, he offered his
understanding that there is a zero fiscal note for the state
because Americans for Nonsmokers' Rights (ANR) will be donating
the money to purchase those signs.
REPRESENTATIVE LEDOUX questioned whether ANR would be donating
those signs for eternity.
1:26:05 PM
CHELEY GRIGSBY, Health Program Manager III, Tobacco Prevention
and Control Program, Division of Public Health, Department of
Health and Social Services (DHSS), responded that there is a
sponsor to purchase the signs initially.
REPRESENTATIVE LEDOUX questioned how the state could come up
with a zero fiscal note based on a verbal promise from someone
to give a donation. She said, "I guess I kind of find this as
... maybe a way to avoid giving a bill a fiscal note."
1:27:34 PM
MS. GRIGSBY said there is no contract in place; currently there
is a sponsor who would donate the signs. In response to a
follow-up question, she said the program currently has signs
[that could be used] by someone who wants to replace signs in
the future. She added that there would be no plan to replace
the signs every year.
1:28:21 PM
REPRESENTATIVE EASTMAN noted that the zero fiscal note goes to
2024, and he surmised that signs would have to be replaced
before that time. He asked how much the donor has allocated for
the signs and how close that matches the department's estimation
of the cost of signage. He said signage will be needed anywhere
smoking is prohibited, and that includes on a marine vessel. He
stated, "I'm quite certain the printing of a piece of paper is
not going to last very long on the outside of a boat."
MS. GRIGSBY said she would have to investigate further in order
to offer a response. She then deferred to Senator Micciche.
SENATOR MICCICHE relayed that the funding would cover a one-time
replacement. He explained that the money is solely for DOT&PF
signage; additional signs required under CSSB 63(FIN) would be
covered by a grant. He said the few [signs] that would have to
be replaced would be covered "the way they're covered today and
the way they've always been covered since there's been a signage
requirement, and that is through the tobacco cessation program."
He reiterated his points in response to a follow-up question.
He added that there would be no additional burden [caused by]
the proposed legislation.
REPRESENTATIVE EASTMAN asked, "If there's more signs, isn't that
going to be more cost?"
SENATOR MICCICHE answered, "I imagine I could calculate an
incremental difference in how that [cost would] be covered, and
I would imagine that that increase probably exists."
1:32:09 PM
CHAIR CLAMAN offered an example wherein the grant pays for 100
signs to be replaced, and if a sign or two needs replacing every
few years, "they'll replace it"; however, there are "a bunch of
other signs" that get replaced by DOT&PF as part of its regular
program.
1:33:08 PM
REPRESENTATIVE LEDOUX questioned how there could be a zero
fiscal note when there will be an incremental cost.
SENATOR MICCICHE suggested people can view things in a variety
of ways or look at the facts, and the fact in this instance is
that there is a tobacco cessation program originally funded by a
settlement with tobacco companies that is trying to help
Alaskans not use tobacco. He said, "They have a portion of
their funding that would help replace signs at no additional
cost to the state. That's the fact. That's the reason there's
not a Department of Health and Social Services fiscal note for
the replacement of signs; that's the reason there's not a
Department of Transportation [& Public Facilities] fiscal note
for the replacement of signs. I cannot think of any other way
to answer that."
REPRESENTATIVE LEDOUX maintained that money currently used for
one thing then used for something else is still a cost.
1:35:14 PM
REPRESENTATIVE KOPP imparted that the Tobacco Cessation Fund is
always used for the same thing - not for different things. He
said he spoke to the commissioner of DOT&PF and found that
because the signs for which the department actually needs to do
a hard fabrication are being paid for upfront by the Tobacco
Cessation Fund, and because most of the signs can be put into
"all-weather devices," the cost of minimal. He said metal signs
last for decades. The cost of replacing a sign now and then is
"so incremental" that there is no sign replacement fund that
requires the dedication of a set amount.
REPRESENTATIVE KOPP noted that it is common for municipalities
to partner with industry on many types of projects to cover what
a government entity would otherwise be doing, and he said those
kinds of programs tend to last longer than when they are driven
solely by the government.
REPRESENTATIVE LEDOUX said she agreed with the comment but
wondered why there would not be a fiscal note to reflect, for
example, that private industry will bear the cost. She
explained that the problem is the total lack of a fiscal note.
1:37:33 PM
REPRESENTATIVE LEDOUX returned to the aforementioned fiscal note
analysis, to a sentence in the third paragraph, which read as
follows [original punctuation provided]:
Current grantees and contractors will refocus their
efforts to the implementation related to this
statewide smoking prohibition, possibly at the expense
of current educational efforts.
REPRESENTATIVE LEDOUX asked what educational efforts may be
affected. She further inquired whether someone from the
department could state for the record that the department would
not be coming back to the legislature [asking for more money]
next year because there is not enough money for the educational
efforts.
MS. GRIGSBY responded that the Tobacco Prevention and Control
Program currently has a network of community grantees that
provide education statewide; therefore, "we wouldn't need any
additional resources for that."
1:39:01 PM
REPRESENTATIVE LEDOUX asked, "Then why does the fiscal note say
that the implementation may come, possibly, at the expense of
current educational efforts?"
MS. GRIGSBY answered, "We're already doing the education, so
there would be no need to do additional or take from ... those
resources; they would continue doing what they are doing."
REPRESENTATIVE LEDOUX asked for the reason behind the sentence
she had just quoted in the fiscal analysis.
MS. GRIGSBY stated, "So, they would be refocusing their message,
when they're doing education, to address the passing of this
smoke-free workplace bill."
CHAIR CLAMAN proffered that in other words Ms. Grigsby was
saying that "they're going to be focusing on this message
instead of the message they're currently focusing on."
MS. GRIGSBY answered that is correct.
1:40:34 PM
REPRESENTATIVE LEDOUX said she is still waiting for someone to
tell her no one would "come back with a supplemental" to pay for
"the message that's now being redirected."
CHAIR CLAMAN remarked that it does not appear anyone is prepared
to answer that question.
1:40:54 PM
REPRESENTATIVE REINBOLD proffered that DHSS has a $3.2 billion
budget and a $92 million supplemental [budget]; therefore, she
said she does not think this issue is even on the department's
radar, because the amount is too miniscule. She relayed that
she used to place signs along trails and bear corridors, and
DOT&PF would give her their old signs. She indicated that
dealing with signage is already part of the infrastructure. She
added that perhaps the effects of the signage will be a decrease
in smoking, which, in turn, will result in a huge cost-savings
to the state.
1:42:10 PM
REPRESENTATIVE EASTMAN indicated that DOT&PF has been candid in
regard to signs being a potential distraction and being
expensive to replace, and he said he would like to know if
DOT&PF would be "involved in this process" and what that
involvement might be.
CHAIR CLAMAN noted there was no one present from DOT&PF to
answer that question.
1:44:46 PM
REPRESENTATIVE EASTMAN indicated he had learned during another
committee's bill hearing process that money designated to the
[smoking cessation] effort could not be cut, because it is
important to get smoking cessation materials to the public. He
expressed concern as to where the money will come from in the
future. He added, "I also wanted to ask if the department has
considered that given that their intention with this program is
to reduce smoking, ... that reduction in smoking is also going
to reduce the amount of funds available for each of these
efforts, education-wise and signage-wise and so-forth, and has
that been factored into ... this zero fiscal note?"
MR. GRIGSBY answered that the grant-related message is directed
to statewide smoke-free law rather than community-level efforts,
and the signs would be absorbed by already existing funds. She
said the department is prepared to adjust the program should
funds be reduced in the future. In response to a follow-up
question, she said there are no plans to ask the legislature for
additional funds to replace the signs.
1:46:58 PM
REPRESENTATIVE LEDOUX asked about enforcement, for example, if a
complaint is filed.
1:47:58 PM
MR. DARNELL answered that for rural Alaska, following a
complaint the state would send a letter to the violator; if
another complaint was submitted, a letter with stronger wording
would be sent; after a third or fourth complaint, a trooper or
Village Public Safety Officer (VPSO) would check the situation
out as part of normal duties. In response to a follow-up
question, he said he could not answer whether a village could go
a year without someone stopping by to check on a situation, but
he does know that troopers do their best in protecting citizens
and the VPSO programs.
REPRESENTATIVE LEDOUX observed that no one is able to specify
how much this will cost, and she stated that it is almost
impossible to have regulation or law that costs nothing. She
suggested it would be more appropriate to have an indeterminate
fiscal note.
1:51:16 PM
REPRESENTATIVE LEDOUX moved that the House Judiciary Standing
Committee add an indeterminate fiscal note.
REPRESENTATIVE FANSLER objected.
1:51:28 PM
REPRESENTATIVE REINBOLD reiterated that the result of reducing
smoking could be that the state saves money; therefore, she said
she does not think it is fair for the legislature to tell the
department to create an indeterminate fiscal note when there
could be a credit.
1:52:01 PM
REPRESENTATIVE LEDOUX responded that the reason for an
indeterminate fiscal note is when there is an uncertainty as to
[the fiscal outcome of legislation].
REPRESENTATIVE EASTMAN offered his understanding that "the
department is all but saying that it really should be an
indeterminant fiscal note," and he indicated he thinks the
committee would err in not requesting one.
1:52:54 PM
The committee took an at-ease from 1:52 p.m. to 1:53 p.m.
1:53:32 PM
CHAIR CLAMAN said there is a motion before the committee to
request an indeterminant fiscal note.
REPRESENTATIVE FANSLER maintained his objection to the motion.
1:54:13 PM
REPRESENTATIVE LEDOUX restated her concern about the uncertainty
of the cost that could be incurred under CSSB 63(FIN). She said
there has been pressure to push the proposed legislation
through, and it is easier to do that with a zero fiscal note.
She said she has never seen a fiscal note that "talks about
ideals and intent."
1:55:32 PM
REPRESENTATIVE FANSLER said that while he sees Representative
LeDoux's point, he thinks the House Judiciary Standing Committee
should put its faith in the departments and leave the
questioning of fiscal notes to the House Finance Committee. He
concluded that he does not see anything that would preclude him
from trusting in the vetting done by the departments that
resulted in the fiscal notes before the committee.
1:56:35 PM
REPRESENTATIVE EASTMAN said it is the job of the legislature, as
a separate branch of government, to question what the other
branch of government puts forward.
1:57:39 PM
REPRESENTATIVE KOPP said he thinks the answer was clearly stated
that [since] the Municipality of Anchorage "rolled out this
legislation in 2004," covering half the population of Alaska,
there have been three violations, which he said does not impose
an administrative burden.
1:58:17 PM
REPRESENTATIVE KREISS-TOMKINS stated opposition to the motion,
although he said he is sympathetic to notion that "fiscal notes
can be massaged one direction or the other to ... arrest or
accelerate passage of certain pieces of legislation." He said
he thinks there are reasonable arguments that the committee
should not be "meddling with this fiscal note," and he said he
would like to keep the executive branch "honest and on its toes
going forward."
1:59:17 PM
REPRESENTATIVE LEDOUX countered that she thinks it is the job of
the legislature to question fiscal notes. She said the
committee does not know whether the proposed legislation will
cost the state money or save the state money, and she reiterated
that is the reason for requesting an indeterminate fiscal note.
She opined that it is offensive that there is not an
indeterminate fiscal note in this case that is so clearly
indeterminate.
2:00:16 PM
A roll call vote was taken. Representatives LeDoux and Eastman
voted in favor of attaching an indeterminate fiscal note to HCS
CSSB 63(CRA), [as amended]. Representatives Kreiss-Tomkins,
Fansler, Reinbold, Kopp, and Claman voted against it.
Therefore, the motion failed by a vote of 2-5.
2:01:13 PM
REPRESENTATIVE EASTMAN said he has learned that all is not well
when the truth is not black and white and cannot stand on its
own. He said HCS CSSB 63(CRA), [as amended], includes good
intentions, which he supports, but it is also, in part, less
than candid. He said not only is the fiscal note process being
massaged, but "volunteer" is being used to mean "employee" and
"employer" is being used to mean someone who accepts a
volunteer's help. He gave an example of an elderly person who
has a business, smokes, has no employees, but has a relative
come help him lift boxes every so often. Representative Eastman
said HCS CSSB 63(CRA), [as amended], maintains that that
relative helping out the elderly business owner is an employee;
therefore, signs must be put up and the elderly gentleman must
not smoke in his establishment "even though he's at no risk of
doing anything harmful to anyone other than himself through his
choice of smoking." He said if the legislature cannot account
for such a scenario, then it has not done its due diligence and
is putting forward good intentions rather than good legislation.
2:04:30 PM
REPRESENTATIVE REINBOLD said her take on the proposed
legislation is that it has to do with secondhand smoke, which
means that somebody else is present when a person is smoking.
She said HCS CSSB 63(CRA), [as amended], does not infringe upon
a person's right to smoke; it simply outlines where it is okay
to smoke. She said it would apply to places of employment, not
to people's homes. She said many people have had to deal with
secondhand smoke. She said she would support moving HCS CSSB
63(CRA), [as amended], out of committee.
2:05:25 PM
REPRESENTATIVE KOPP concurred with Representative Reinbold. He
said it amazes him how seriously deaths by alcohol and plane
crashes are viewed when so many more people die from tobacco
use. He said he thinks HCS CSSB 63(CRA) [as amended] has "a
light footprint considering the enormous public health and
Medicaid cost that we pay." Smoke inhalation is one of the
number one drivers of Medicaid costs. He said there are many
examples where regulations have been put in place to protect the
public, including the seat belt requirement and driving under
the influence (DUI) fines. He reiterated that he thinks HCS
CSSB 63(CRA), [as amended], does not go too far.
2:06:48 PM
REPRESENTATIVE LEDOUX opined that to pretend that a bill can be
enforced and mean anything without any costs is to live in make-
believe land.
2:07:19 PM
REPRESENTATIVE FANSLER stated support of HCS CSSB 63(CRA) [as
amended] as a good and important step toward ensuring public
health, and he said he hopes an effect will be to drive down
healthcare costs to the state.
2:08:34 PM
REPRESENTATIVE FANSLER moved to report HCS CSSB 63(CRA), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes.
REPRESENTATIVE EASTMAN objected.
2:08:55 PM
A roll call vote was taken. Representatives Kopp, Kreiss-
Tomkins, Fansler, Reinbold, and Claman voted in favor of
reporting HCS CSSB 63(CRA), as amended, out of committee with
individual recommendations and the accompanying fiscal notes.
Representatives LeDoux and Eastman voted against it. Therefore,
HCS CSSB 63(JUD) was reported out of the House Judiciary
Standing Committee by a vote of 5-2.