Legislature(2005 - 2006)CAPITOL 17

04/25/2005 03:15 PM LABOR & COMMERCE


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+= SB 137 EVICTING INSTITUTIONAL PROPERTY USERS TELECONFERENCED
Heard & Held
+ SB 139 OCCUPATIONAL BDS/AGENCIES TELECONFERENCED
Moved HCS CSSB 139(L&C) Out of Committee
+ SB 140 BAN INTERNET SPYWARE TELECONFERENCED
Moved Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 249 ENHANCED 911 SURCHARGES
Moved CSHB 249(L&C) Out of Committee
SB 137-EVICTIONS FROM UNIV. STUDENT HOUSING                                                                                   
                                                                                                                                
3:48:18 PM                                                                                                                    
                                                                                                                                
CHAIR ANDERSON  announced that the  next order of  business would                                                               
be SENATE  BILL NO.  137, "An Act  providing that  an institution                                                               
providing  accommodations  exempt  from  the  provisions  of  the                                                               
Uniform  Residential Landlord  and Tenant  Act may  evict tenants                                                               
without  resorting  to court  proceedings  under  AS 09.45.060  -                                                               
09.45.160."                                                                                                                     
                                                                                                                                
JOE  MICHEL,  Staff  to  Senator   Ralph  Seekins,  Alaska  State                                                               
Legislature,   informed  the   committee  that   Senator  Seekins                                                               
sponsored this legislation upon the  request of the University of                                                               
Alaska.    The  legislation  stems  from a  few  cases  in  which                                                               
disruptive students have used the  court system to stall eviction                                                               
from a  unit until a time  more convenient for the  student.  The                                                               
infractions of these students were  beyond what was allowed under                                                               
their  student  housing  contract.    Therefore,  the  university                                                               
needed  to remove  the  students from  the  housing before  their                                                               
disruptive behavior impacted other  students.  He explained, "The                                                               
Uniform Residential  Landlord and Tenant Act  (ULTA) was designed                                                               
to  alleviate  injustices  inflicted on  residential  renters  by                                                               
unscrupulous private  landlords."  The  State of Alaska's  Act is                                                               
taken  almost  verbatim  from  the   federal  act.    Mr.  Michel                                                               
specified that  the intent of  SB 137  is to fix  the discrepancy                                                               
between  the legislative  intent  of the  ULTA  and recent  lower                                                               
court   decisions  regarding   the   eviction   and  removal   of                                                               
individuals residing in residential  housing such as [dormitories                                                               
at a university].                                                                                                               
                                                                                                                                
3:50:00 PM                                                                                                                    
                                                                                                                                
MR. MICHEL  then highlighted AS  34.03.330, which  specifies that                                                               
public service institutional entities  aren't compatible with the                                                               
heightened  protections designed  for  residential renters  under                                                               
ULTA.    Therefore,  these  larger  institutions  aren't  in  the                                                               
business  of   long-term  residential   housing  and   have  been                                                               
exempted.   For  example,  a hospital  shouldn't  be required  to                                                               
obtain a court order to remove  a patient who no longer needs its                                                               
services.  Furthermore, a student  expelled from school shouldn't                                                               
be able to  insist on remaining in student housing  until a court                                                               
order is obtained for his/her removal.   Mr. Michel noted that he                                                               
has   reviewed  the   university's  housing   policies  and   has                                                               
determined that  it's a  lengthy process  of reviews  and appeals                                                               
prior   to  eviction.     The   university  is   requesting  this                                                               
legislation because going to court is costly, he related.                                                                       
                                                                                                                                
3:51:27 PM                                                                                                                    
                                                                                                                                
CHAIR  ANDERSON  said that  he  liked  the  idea behind  SB  137.                                                               
However, he inquired as to  whether SB 137 includes sideboards so                                                               
that an individual  who is treated unfairly would  have an avenue                                                               
for redress.                                                                                                                    
                                                                                                                                
MR.  MICHEL  answered  that  there  aren't  sideboards,  per  se.                                                               
However,  the contract  the individual  signs contains  rules and                                                               
specifications that the facility wouldn't be able to violate.                                                                   
                                                                                                                                
CHAIR  ANDERSON  surmised  then   that  an  individual  could  be                                                               
evicted,  but  if that  individual  feels  that he/she  is  being                                                               
treated unfairly  he/she could seek  an injunctive relief  or sue                                                               
the [facility] on a contract basis.                                                                                             
                                                                                                                                
3:54:03 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN noted  that  he liked  the  idea of  getting                                                               
unruly students  out of  universities because  it isn't  fair for                                                               
someone  to  be disruptive  to  the  point of  impacting  others.                                                               
However, this  legislation would  also include nursing  homes and                                                               
thus  he asked  whether a  [disruptive] individual  with dementia                                                               
living in a nursing home could be evicted without a court order.                                                                
                                                                                                                                
MR.  MICHEL  answered  that technically,  institutions  [such  as                                                               
nursing homes]  could evict someone,  but there is a  contract by                                                               
which  the institution  must abide.   Mr.  Michel clarified  that                                                               
this is  already in  statute; the problem  has arisen  with lower                                                               
court  decisions  that  haven't  applied it  to  cases  involving                                                               
students living in the university dormitories.                                                                                  
                                                                                                                                
3:55:41 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN  said that  he  had  no problem  evicting  a                                                               
problem  student out  of  a university  dormitory.   However,  he                                                               
inquired as to  how those residents in a nursing  home who can be                                                               
very difficult can be protected.                                                                                                
                                                                                                                                
3:56:45 PM                                                                                                                    
                                                                                                                                
MICHAEL HOSTINA, Associate General  Counsel, University of Alaska                                                               
- Fairbanks (UAF), opined that  there are a variety of safeguards                                                               
in place  for most university  students, hospital  residents, and                                                               
nursing home residents.  In the  case of a nursing home resident,                                                               
there are specific  laws as well as an ombudsman  for the elderly                                                               
to help safeguard  the rights of the patient.   He further opined                                                               
that most nursing  homes wouldn't think to resort  to an eviction                                                               
process  to remove  a patient.    The nursing  home would  simply                                                               
discharge the  patient.   However, if  the patient  objected, the                                                               
nursing home would have to  seek injunctive relief to enforce the                                                               
contract.  This  proposed law wouldn't change much  of that, save                                                               
that a  patient wouldn't be  able to  claim that an  eviction was                                                               
necessary.   He  noted that  the courts  could still  address the                                                               
merits of any injunctive action.                                                                                                
                                                                                                                                
MR. HOSTINA  informed the committee  that at UAF there  have been                                                               
one or two students who have  been dorm room lawyers with lots of                                                               
time on their  hands.  In those cases, the  students have a ready                                                               
argument that  the university  has to [go  through the   eviction                                                               
process].  In a couple of  cases with UAF, the courts agreed with                                                               
that argument.  Mr. Hostina  suspected that the university is the                                                               
major  beneficiary   of  this   legislation  because   the  other                                                               
categories   of   institutions   aren't  likely   to   face   the                                                               
aforementioned argument.                                                                                                        
                                                                                                                                
3:58:44 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LYNN  inquired as  to  the  difference between  a                                                               
discharge  and  an  eviction  for   a  patient;  either  way  the                                                               
individual is not residing in  the facility.  Representative Lynn                                                               
expressed concern that  perhaps SB 137 is casting too  large of a                                                               
net.  Therefore,  he asked if the legislation  could include some                                                               
protections  for  the  categories  beyond  those  addressing  the                                                               
university students.                                                                                                            
                                                                                                                                
3:59:12 PM                                                                                                                    
                                                                                                                                
CHAIR  ANDERSON  urged  Mr.  Michel to  obtain  an  opinion  from                                                               
Legislative Legal and Research  Services on Representative Lynn's                                                               
concern.   However,  Chair  Anderson said  he  didn't think  that                                                               
there was any need to delay the bill.                                                                                           
                                                                                                                                
REPRESENTATIVE LEDOUX echoed  the same discomfort with  SB 137 as                                                               
did  Representative Lynn.   Therefore,  she said  she would  feel                                                               
more  comfortable  adopting  a conceptual  amendment  that  would                                                               
eliminate the [nursing homes and hospitals] from this proposal.                                                                 
                                                                                                                                
4:01:01 PM                                                                                                                    
                                                                                                                                
CHAIR ANDERSON related his understanding  that ULTA doesn't apply                                                               
to [a private] nursing home.                                                                                                    
                                                                                                                                
4:01:35 PM                                                                                                                    
                                                                                                                                
MR. HOSTINA  confirmed Chair Anderson's understanding,  and added                                                               
that  the university,  hospital, nursing  homes, and  prisons are                                                               
already  excluded from  ULTA.   However,  because the  university                                                               
provides housing, it  made for an easy argument for  a student to                                                               
say that he/she  must be evicted rather than  merely removed from                                                               
housing.  Although  he reiterated that he didn't  believe such an                                                               
argument  would  come  up,  he would  favor  addressing  it  with                                                               
respect  to institutions  beyond  the university.   He  specified                                                               
that SB 137 is merely requesting a clarification of ULTA.                                                                       
                                                                                                                                
4:03:05 PM                                                                                                                    
                                                                                                                                
CHAIR ANDERSON pointed out that  perhaps the confusion has arisen                                                               
from the text  in the sponsor statement that  specifies that this                                                               
legislation  would   apply  to   nursing  homes   and  hospitals.                                                               
Therefore, he suggested that it  would be appropriate to check on                                                               
this question with Legislative Legal and Research Services.                                                                     
                                                                                                                                
4:03:35 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ROKEBERG  stated  that   ULTA  doesn't  apply  to                                                               
[hospitals  and  nursing homes]  under  AS  34.03.330(b)(1).   He                                                               
characterized the situation  that SB 137 is addressing  as one in                                                               
which rogue judges aren't enforcing the law.                                                                                    
                                                                                                                                
4:04:50 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG  clarified that  this legislation  is not                                                               
an  amendment  to  ULTA,  rather it's  an  amendment  to  actions                                                               
relating to real property.                                                                                                      
                                                                                                                                
MR. HOSTINA agreed.                                                                                                             
                                                                                                                                
REPRESENTATIVE ROKEBERG  further clarified  that SB  137, through                                                               
its  amendment to  actions relating  to real  property, makes  it                                                               
crystal clear to  the courts that [the  university shouldn't have                                                               
to go through an eviction process for a student].                                                                               
                                                                                                                                
CHAIR  ANDERSON asked  whether the  title of  the legislation  is                                                               
accurate.                                                                                                                       
                                                                                                                                
REPRESENTATIVE  ROKEBERG replied,  "It's  actually probably  more                                                               
than accurate because ... they're  providing the exemptions under                                                               
the  Landlord/Tenant  Act  ...  and that  they  can't  resort  to                                                               
proceedings under  the real  property to  make the  ... eviction.                                                               
They can't use a court action to recover possession."                                                                           
                                                                                                                                
4:06:10 PM                                                                                                                    
                                                                                                                                
MR. HOSTINA,  in response  to Representative  Rokeberg, confirmed                                                               
that  [the university]  used  a trespass  action  rather than  an                                                               
eviction action.   He explained  that the ULTA  unlawful detainer                                                               
action  wasn't  used because  those  take  10-20 days  to  remove                                                               
someone from  housing.   In the case  of the  disruptive student,                                                               
the student  had went  through the  university's process  and the                                                               
university understood  the law to  mean that there was  no reason                                                               
to resort to forcible entry  and detainer action.  Therefore, the                                                               
university understood the  law to allow simple  notification of a                                                               
trespass and  an arrest  could ensue if  the student  insisted on                                                               
remaining.  However,  the courts disagreed and  insisted that the                                                               
university go through a forcible entry and detainer action.                                                                     
                                                                                                                                
4:06:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG surmised then  that the university wished                                                               
to remove  the student  sooner than  under the  unlawful detainer                                                               
process because the student was  destructive to the population of                                                               
the dormitory.                                                                                                                  
                                                                                                                                
MR. HOSTINA agreed, and added  that generally these students have                                                               
been given  plenty of notice  regarding the need to  change their                                                               
behavior.   Even if the  student continues to be  disruptive, the                                                               
university provides  yet another process  such that he/she  has a                                                               
right of appeal within the  university if the individual believes                                                               
his/her constitutional  rights have  been violated.   The student                                                               
can  appeal to  superior court.   After  the aforementioned,  the                                                               
university doesn't  want to  have to go  through a  court process                                                               
for  an  eviction.    Mr.   Hostina  agreed  with  Representative                                                               
Rokeberg that  currently the ULTA  doesn't apply in any  of these                                                               
cases, this legislation merely clarifies  that the forcible entry                                                               
and detainer  action shouldn't be required  of those institutions                                                               
for the same reasons.                                                                                                           
                                                                                                                                
4:08:26 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE CRAWFORD  commented that  he is becoming  more and                                                               
more confused.  He expressed  concern because when his father who                                                               
was living  in a nursing  home was diagnosed with  Alzheimer, the                                                               
nursing  home  said  that  it didn't  take  care  of  Alzheimer's                                                               
patients.   Therefore, Representative  Crawford was told  that he                                                               
would  have to  find  another  residence for  his  father.   Upon                                                               
finding a  Veterans' Administration  hospital, his father  had to                                                               
wait until there  was an opening.  Fortunately,  in Louisiana his                                                               
father was  protected from being  evicted from the  nursing home.                                                               
He  asked if  this legislation  would provide  nursing homes  the                                                               
ability to  evict people in  the aforementioned situation  if the                                                               
Alzheimer  patient becomes  disruptive.   Representative Crawford                                                               
opined that it seems like there  are two different questions.  He                                                               
further  opined that  the committee  would  probably support  the                                                               
legislation  in   relation  to   cases  involving   a  disruptive                                                               
university student.  However, he  expressed interest in obtaining                                                               
more information on the appeals process.                                                                                        
                                                                                                                                
CHAIR  ANDERSON  related  his understanding  that  Representative                                                               
Crawford  was   interested  in   knowing  who   this  legislation                                                               
encompasses  and how  it  would  apply in  the  various types  of                                                               
institutions.                                                                                                                   
                                                                                                                                
REPRESENTATIVE LYNN  suggested limiting the legislation  to apply                                                               
only to student housing.                                                                                                        
                                                                                                                                
CHAIR ANDERSON  related his  belief that  the sponsor  wanted the                                                               
legislation to be more expansive than merely student housing.                                                                   
                                                                                                                                
4:11:03 PM                                                                                                                    
                                                                                                                                
MR.  MICHEL reminded  the committee  that SB  137 isn't  changing                                                               
[Alaska's Landlord Tenant Act],  the legislation merely addresses                                                               
the  court decisions  [that are  incongruent with  the Act].   He                                                               
offered  to  obtain  information regarding  the  questions  asked                                                               
today.                                                                                                                          
                                                                                                                                
4:11:31 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  ROKEBERG  pointed out  that  SB  137 changes  the                                                               
civil  procedures for  real estate  actions.   He suggested  that                                                               
perhaps, this legislation is too broad [as written].                                                                            
                                                                                                                                
REPRESENTATIVE  GUTTENBERG   acknowledged  that   the  disruptive                                                               
student  situations   have  been  problematic  over   the  years.                                                               
Therefore,  Representative  Guttenberg  inquired as  to  why  the                                                               
student housing  contract doesn't address the  ramifications of a                                                               
disruptive student in regards to his/her housing.                                                                               
                                                                                                                                
4:13:17 PM                                                                                                                    
                                                                                                                                
MR.  HOSTINA  answered  that  it  is  addressed  in  the  housing                                                               
contracts.    In   fact,  some  of  the   housing  contracts  are                                                               
terminable at will.   Still, the courts have  read such contracts                                                               
and  the Code  of Civil  Procedure under  Title 9  to require  an                                                               
eviction  to  recover possession  of  the  student housing  unit.                                                               
Therefore,  the  university  was arguably  prevented  from  doing                                                               
anything other than going to  court to recover possessions.  From                                                               
that  case  it  would  seem  that  it  doesn't  matter  what  the                                                               
contracts include, he opined.                                                                                                   
                                                                                                                                
4:14:40 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE LEDOUX  requested a copy  of the decision  in such                                                               
cases.                                                                                                                          
                                                                                                                                
4:15:42 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CRAWFORD referred  to the  following language  in                                                               
the sponsor  statement, which  read:  "A  hospital should  not be                                                               
required  to obtain  a court  order to  remove a  patient who  no                                                               
longer needs  its services."   He questioned  who decides  when a                                                               
patient no  longer needs its  services.   Representative Crawford                                                               
expressed  the need  to be  sure what  this legislation  actually                                                               
does.                                                                                                                           
                                                                                                                                
4:16:31 PM                                                                                                                    
                                                                                                                                
CHAIR ANDERSON announced that SB 137 would be held over.                                                                        
                                                                                                                                

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