Legislature(2005 - 2006)
04/12/2006 06:02 PM Joint 149
| Audio | Topic |
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| Start | |
| HB149 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 149-CONTROLLED SUBSTANCES 6:03:34 PM CHAIR COGHILL announced that the only order of business would be HOUSE BILL NO. 149, "An Act relating to further regulation of the sale, possession, and delivery of certain chemicals and precursors used in the manufacture of methamphetamine." [Before the committee were CSHB 149(FIN)am and SCS CSHB 149(FIN)am S(ct rule fld S).] CHAIR COGHILL reminded the committee that at the last hearing there was no agreement with regard to which version to utilize, and therefore the committee requested limited powers to consider amendments. He announced that he has received seven amendments to be considered today. 6:05:25 PM REPRESENTATIVE STOLTZE moved that the committee adopt Amendment 1, labeled 24-LS0596\DA.5, Finley/Luckhaupt, 3/23/06, which read: Page 15, line 31, through page 17, line 26: Delete all material and insert: "Sec. 17.30.090. Sale or purchase of certain listed chemicals. (a) A seller, retailer, or vendor may not sell for personal use and a person may not purchase for personal use ephedrine base, pseudoephedrine base, or phenylpropanolamine base, as those terms are used in P.L. 109-177, 120 Stat. 192, unless that sale or purchase complies with and meets the requirements of P.L. 109-177, 120 Stat.192, with regard to amounts, identification required, storage, access and availability, and logbooks. A seller, retailer, or vendor shall maintain the logbook for the period required under P.L. 109-177, 120 Stat. 192, and shall allow law enforcement officers access to the logbook. Each seller, retailer, and vendor shall provide training to the seller's, retailer's, or vendor's employees and agents in the requirements of this section. The Department of Public Safety shall provide assistance and information to sellers, retailers, and vendors to meet the requirements of this section. (b) A seller, retailer, or vendor may not sell to a person under 18 years of age and a person under 18 years of age may not purchase a product or substance identified in (a) of this section. (c) Nothing in this section limits the authority of a seller, retailer, or vendor regulated by this section to report to a law enforcement agency or officer suspicious purchases of a chemical, product, or substance. A seller, retailer, or vendor is not liable in a civil action for release of information to a law enforcement agency concerning matters related to this section. (d) A seller, retailer, or vendor does not violate this section if the seller, retailer, or vendor proves by a preponderance of the evidence that the seller, retailer, or vendor (1) exercised the degree of care of a reasonable employer to ensure compliance with (a) - (c) of this section; and (2) determined that the employees and agents of the seller, retailer, or vendor had been notified of the requirements of this section by (A) securing each employee's or agent's written acknowledgment of notification of those requirements; or (B) making another appropriate determination. (e) A person who violates this section shall forfeit and pay to the state a civil penalty of not more than $10,000 for each violation." CHAIR COGHILL objected for discussion purposes. 6:05:41 PM REPRESENTATIVE STOLTZE explained that Amendment 1 would reinsert the log book provisions in order to provide uniformity in law for both the consumer and the merchant. He noted that a log book isn't required for purchases of product in amounts under 16 milligrams. Amendment 1 also inserts the 18-year-old restriction. Amendment 1 inserts the seller, retailer, and vendor liability section and the hold harmless provision as provided in the House version of HB 149. 6:07:42 PM CHAIR COGHILL surmised then that the log books dovetail with the federal law. 6:07:57 PM REPRESENTATIVE CRAWFORD moved that the committee adopt Amendment 1 to Amendment 1, labeled 24-LS0596\DA.14, Luckhaupt, 4/5/06, which read: [Please note that the page and line numbers of the following amendment refer to those specified on Amendment 1.] Page 1, lines 15 - 17: Delete all material. Reletter the following subsections accordingly. Page 2, line 4: Delete "(a) - (c)" Insert "(a) and (b) " 6:09:09 PM CHAIR COGHILL objected to Amendment 1 to Amendment 1. 6:09:16 PM REPRESENTATIVE CRAWFORD highlighted that federal guidelines require identification for the purchase of these products and allow individuals under 18 years of age to purchase them. With the behind-the-counter and log book requirements, individuals with a drivers' license should be allowed to purchase these products. 6:10:06 PM SENATOR BUNDE inquired as to why [the age requirement] is included in the legislation if it wasn't included in the federal Patriot Act. REPRESENTATIVE STOLTZE recalled that constituents had concerns regarding "smurfing." Although the [age requirement] would place an extra onus on the merchants, often the problems with smurfing are by underage individuals. 6:11:51 PM SENATOR BUNDE recalled some of the seminars he attended regarding the methamphetamine ("meth") problem and the smurfing that occurs. Although those purchasing the ingredients to make meth can involve young people, 18 years of age is near majority. He opined that he would hate to see a young person in the military not being allowed to purchase cold medicine. Therefore, he questioned whether the same purpose could be served with a younger prohibition, such as age 16. REPRESENTATIVE CRAWFORD, in response to Chair Coghill, said he didn't believe the age limitation was included in the legislation until amended in the Senate. SENATOR SEEKINS recalled that [the Senate amended HB 149] to include the 18-year-old prohibition with the following exceptions: a 17-year-old wife of a military member or an emancipated minor. REPRESENTATIVE STOLTZE characterized the exceptions in the Senate version as problematic. He opined that less government is best. 6:15:14 PM CHAIR COGHILL also expressed concern with regard to the exceptions. He related that he likes the idea of an identification check. SENATOR SEEKINS referred to page 16, line 26 of SCS CSHB 149(FIN) am S(ct rule fld S). He related that the 18-year-old prohibition may have been included in the governor's legislation. 6:17:12 PM REPRESENTATIVE CRAWFORD reiterated that the federal law allows those under 18 years of age with legal photo identification to purchase these products. He said that it seems that there could be a compromise to allow the legal use of this product. He indicated that the age of 16 is acceptable to him. CHAIR COGHILL related his understanding that the ability to obtain emancipation is the age of 16. SENATOR FRENCH indicated that most wives and mothers are emancipated. CHAIR COGHILL surmised then that the military members would be addressed. 6:18:54 PM SENATOR SEEKINS pointed out that nothing on photo identification shows that a person is married; it merely shows a person's age. Therefore, he suggested that [any exception] should be tied to an age. 6:19:16 PM REPRESENTATIVE CRAWFORD withdrew Amendment 1 to Amendment 1. REPRESENTATIVE CRAWFORD offered Conceptual Amendment 2 to Amendment 1, as follows: [Please note that the page and line numbers of the following amendment refer to those specified on Amendment 1.] Page 1, lines 15 and 16; Delete "18" Insert "16" 6:20:26 PM REPRESENTATIVE STOLTZE objected, and expressed his belief that merchants would still have the discretion to determine to whom they will sell the product much like with tobacco. He related his understanding that this [age provision] wouldn't prohibit merchants from instituting a policy with a higher age. SENATOR BUNDE reminded the committee of the sign found in many stores relating to the right to refuse service. REPRESENTATIVE STOLTZE removed his objection. There being no further objection, Amendment 2 to Amendment 1 was adopted. 6:21:32 PM REPRESENTATIVE CRAWFORD moved Amendment 3 to Amendment 1, 24- LS0596\DA.15, Luckhaupt, 4/5/06, which read: [Please note that the page and line numbers of the following amendment refer to those specified on Amendment 1.] Page 1, following line 17: Insert a new subsection to read: "(c) A seller, retailer, or vendor of iodine or crystal iodine products must keep the products behind a service counter not accessible to the public or keep the products in a secure cabinet or storage area not accessible to the public. A seller, retailer, or vendor may not sell and a person may not purchase iodine or crystal iodine unless the purchaser provides federal or state-issued photo identification and signs a written or electronic log detailing the date, time, name and address of the purchaser, and amount of the drug product purchased. The seller, retailer, or vendor shall maintain the log for two years, and shall allow law enforcement officers to access the log. The logs required for the sales of iodine and crystal iodine may be kept in conjunction with the logs for ephedrine base, pseudoephedrine base, or phenylpropanolamine base, under (a) of this section." Reletter the following subsections accordingly. Page 2, line 4: Delete "(a) - (c)" Insert "(a) - (d)" CHAIR COGHILL objected. REPRESENTATIVE CRAWFORD explained that iodine is one of the precursors to making meth and there's hardly any use for it in the quantities that it's purchased for meth. The legislation was originally based on the law in Oklahoma where iodine is kept behind the counter and dispensed with a log book. Representative Crawford opined that it's good to limit the public's access to iodine. SENATOR FRENCH, in response to Chair Coghill, pointed out that the provisions regarding iodine are located on page 16, line 9, of SCS CSHB 149(FIN) am S(ct rule fld S). He explained that this has to be addressed because the first part of Amendment 1 deletes page 16. 6:23:52 PM SENATOR SEEKINS related that he purchases iodine by the gallon for veterinary purposes as it's a fairly common product used for veterinary purposes. In fact, most of the iodine purchased for veterinary purposes is purchased via mail order. Therefore, he said he wasn't necessarily in favor of requiring the use of a log book in order to purchase iodine. REPRESENTATIVE CRAWFORD noted his agreement that iodine is not used in the general public, save the purpose for which this legislation attempts to make illegal. This [log book requirement for iodine] was originally in HB 149 and remains a good way to limit meth manufactured in the general public. 6:27:17 PM CHAIR COGHILL related his understanding that if a retailer sold both iodine and pseudoephedrine, a single log book would be used for both products. REPRESENTATIVE CRAWFORD said that was how it was envisioned. 6:27:36 PM SENATOR FRENCH asked if the concern is in regard to the restriction of the sale or the log book or both. SENATOR SEEKINS opined that with a restriction on the sale of pseudoephedrine, iodine has no other use than for medical purposes. Therefore, if [the goal] is to restrict all things [related to the creation of meth], then perhaps the purchase of propane should be restricted as well. CHAIR COGHILL inquired as to the other ingredients absolutely necessary [to the manufacture of meth] that aren't required to use a log book. REPRESENTATIVE CRAWFORD deferred to his legislative staff. SENATOR BUNDE related his understanding that red phosphorous is one of the other necessary ingredients, although it's not something one would find on the drug store counter. Moreover, gallon containers [of iodine] aren't going to be found on the drug store counter and thus restricted access for iodine in the general retail area seems unnecessary. CHAIR COGHILL noted his agreement with Senator Bunde, and commented that the restricted access isn't as big a deal. However, he said he didn't have a problem with the farmers' supply store being required to utilize a log book. REPRESENTATIVE CRAWFORD said he didn't believe large amounts of iodine are required to manufacture meth. CHAIR COGHILL spoke against Amendment 3 to Amendment 1. SENATOR BUNDE suggested that if Amendment 3 to Amendment 1 isn't adopted, the legislature can revisit the issue if iodine becomes a problem. He opined that the legislature will likely have to address this issue again because the commercial threat seems to be greater than the "mom and pop" [manufacturers]. 6:32:08 PM CHAIR COGHILL maintained his objection. 6:32:17 PM A roll call vote was taken. Representative Crawford and Senator French voted in favor of Amendment 3 to Amendment 1. Representatives Stoltze and Coghill and Senators Bunde and Seekins voted against it. Therefore, Amendment 3 to Amendment 1 failed to be adopted by a vote of 2-4. 6:32:41 PM CHAIR COGHILL, upon determining that there was no objection, announced that Amendment 1, as amended, was adopted. 6:33:27 PM REPRESENTATIVE STOLTZE moved that the committee adopt Amendment 2, labeled 24-LS0596\DA.11, Cook/Luckhaupt, 3/24/06, which read: Page 17, following line 26: Insert a new bill section to read: "* Sec. 19. AS 17.30.090(a) is amended to read: (a) A seller, retailer, or vendor may not sell for personal use and a person may not purchase for personal use ephedrine base, pseudoephedrine base, or phenylpropanolamine base, as those terms are used in P.L. 109-177, 120 Stat. 192, unless that sale or purchase complies with and meets the requirements of P.L. 109-177, 120 Stat. 192, with regard to amounts, identification required, storage, and access and availability [, AND LOGBOOKS. A SELLER, RETAILER, OR VENDOR SHALL MAINTAIN THE LOGBOOK FOR THE PERIOD REQUIRED UNDER P.L. 109-177, 120 STAT. 192, AND SHALL ALLOW LAW ENFORCEMENT OFFICERS ACCESS TO THE LOGBOOK]. Each seller, retailer, and vendor shall provide training to the seller's, retailer's, or vendor's employees and agents in the requirements of this section. The Department of Public Safety shall provide assistance and information to sellers, retailers, and vendors to meet the requirements of this section." Renumber the following bill sections accordingly. Page 18, line 21: Delete "Sections 1 - 17 and 21" Insert "Sections 1 - 17 and 22" Page 18, line 22, following "date of": Insert "secs. 1 - 17 and 22 of" Page 18, line 23: Delete all material. Insert new bill sections to read: "* Sec. 24. Section 19 of this Act takes effect July 1, 2009. * Sec. 25. Except as provided in sec. 24 of this Act, this Act takes effect immediately under AS 01.10.070(c)." CHAIR COGHILL objected for discussion purposes. REPRESENTATIVE STOLTZE explained that Amendment 2 provides a sunset with a minimal revisitation date of this issue and the log books. He speculated that the issue would arise prior to the sunset. 6:34:22 PM REPRESENTATIVE CRAWFORD reminded the committee that the log books are part of the federal requirement. Therefore, it would seem that a sunset would cause the state to be out of compliance with the federal requirements. SENATOR FRENCH asked whether the federal law sunsets the log books. REPRESENTATIVE STOLTZE related his belief that the federal law doesn't sunset the log books. Although this isn't a particularly important provision, it was a mechanism that would force the revisitation of the issue. 6:35:36 PM SENATOR SEEKINS explained that the Senate version did include a sunset for the log book provision because there was a question as to the value of the log books and whether the information obtained would be useful or used to stop the production of meth. Senator Seekins said he wouldn't object to not including the sunset provision. 6:36:42 PM REPRESENTATIVE STOLTZE withdrew Amendment 2. 6:37:54 PM SENATOR FRENCH moved that the committee adopt Amendment 5, labeled 24-LS0596\DA.12, Luckhaupt, 4/4/06, which read: Page 1, line 8, through page 4, line 8: Delete all material. Page 4, line 9: Delete "Sec. 3" Insert "Section 1" Renumber the following bill sections accordingly. Page 18, line 16: Delete "sec. 16" Insert "sec. 14" Page 18, line 21: Delete "Sections 1 - 18 and 21" Insert "Sections 1 - 16 and 19" CHAIR COGHILL objected for discussion purposes. SENATOR FRENCH explained that Amendment 5 would delete the findings section of the marijuana portion of the legislation because many refute the findings, which weren't proven beyond a reasonable doubt. "Science should be in the laboratory and not in the ... statute," he remarked. 6:39:08 PM SENATOR BUNDE opposed Amendment 5. He related his view that those speaking against the findings weren't from a scientific background but rather an advocacy basis. He opined that the findings are essential to advancing the proper case in the courts. 6:40:10 PM SENATOR SEEKINS informed the committee that the Senate Judiciary Standing Committee typically removes the findings section of legislation and attaches a letter of intent instead. However, with this legislation the majority of the members of the Senate Judiciary Standing Committee felt the findings section was important to describe the reason for the legislature's action. Therefore, he spoke against Amendment 5 in order to preserve this language in a clear manner in the statute. 6:40:42 PM CHAIR COGHILL maintained his objection. A roll call vote was taken. Representative Crawford and Senator French voted in favor of Amendment 5. Representatives Stoltze and Coghill and Senators Bunde and Seekins voted against it. Therefore, Amendment 5 failed to be adopted by a vote of 2-4. 6:41:10 PM SENATOR FRENCH moved that the committee adopt Amendment 6, labeled 24/LS0596\DA.13, Luckhaupt, 4/4/06, which read: Page 1, line 8, through page 4, line 8: Delete all material. Page 4, line 9: Delete "Sec. 3" Insert "Section 1" Renumber the following bill sections accordingly. Page 7, line 14, through page 10, line 15: Delete all material. Renumber the following bill sections accordingly. Page 15, lines 1 - 27: Delete all material. Renumber the following bill sections accordingly. Page 18, lines 14 - 18: Delete all material. Renumber the following bill sections accordingly. Page 18, line 21: Delete "Sections 1 - 18 and 21" Insert "Sections 1 - 10" CHAIR COGHILL objected. SENATOR FRENCH explained that Amendment 6 eliminates the marijuana portion of the legislation and addresses only meth and steroids. He said that he is proposing Amendment 6 after hearing from many of his constituents that the two bills should be treated separately. Moreover, the House hasn't had the opportunity to analyze and debate the marijuana issue. 6:42:23 PM REPRESENTATIVE CRAWFORD noted that he favors Amendment 6 because it would remove the [marijuana] legislation that was added to HB 149. 6:42:53 PM SENATOR BUNDE announced his opposition to Amendment 6. He opined that everything done in the legislature requires somewhat of a compromise and this compromise involves two illegal drugs. Senator Bunde said he too has hear from many who want the two issues separated, but he said they are marijuana advocates. 6:43:38 PM A roll call vote was taken. Representative Crawford and Senator French voted in favor of Amendment 6. Representatives Stoltze and Coghill and Senators Bunde and Seekins voted against it. Therefore, Amendment 6 failed to be adopted by a vote of 2-4. 6:44:33 PM SENATOR FRENCH moved that the committee adopt Amendment 7, labeled 24-LS0596\DA.17, Luckhaupt, 4/12/06, which read: Page 10, lines 2 - 9: Delete all material and insert: "(1) uses or displays in public in the presence of one or more individuals any amount of a schedule VIA controlled substance [OR POSSESSES ONE OR MORE PREPARATIONS, COMPOUNDS, MIXTURES, OR SUBSTANCES OF AN AGGREGATE WEIGHT OF LESS THAN ONE-HALF POUND CONTAINING A SCHEDULE VIA CONTROLLED SUBSTANCE]; or (2) refuses entry into a premise for an inspection authorized under AS 17.30." Page 15, lines 1 - 27: Delete all material. Renumber the following bill sections accordingly. Page 18, lines 14 - 18: Delete all material. Renumber the following bill sections accordingly. Page 18, line 21: Delete "Sections 1 - 18 and 21" Insert "Sections 1 - 16" CHAIR COGHILL objected. SENATOR FRENCH explained that Amendment 7 decriminalizes the in- home personal use of small amounts of marijuana due to Section 22 of the Alaska State Constitution, which guarantees the right of personal privacy. He expressed the need to be cautious with regard to the reasons with which police are given to allow them to enter a home with a search warrant. 6:46:05 PM SENATOR BUNDE related his opposition to Amendment 7. He questioned whether people should be allowed to have small amounts of meth or cocaine. He said he didn't think that is desired. Furthermore, marijuana is classified as an illegal regardless of the amount. He stated his belief that there should be fewer impaired individuals in society rather than more. 6:47:28 PM A roll call vote was taken. Senator French voted in favor of Amendment 7. Representatives Crawford, Stoltze, and Coghill and Senators Bunde and Seekins voted against it. Therefore, Amendment 7 failed to be adopted by a vote of 1-5. 6:47:51 PM The committee took an at-ease from 6:47 p.m. to 6:49 p.m. 6:48:54 PM SENATOR SEEKINS requested that Mr. Guaneli address the question of severability of several sections of this legislation once it's placed into statute. 6:49:12 PM DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law (DOL), recalled that there has been some confusion generated by some of the opponents of HB 149 regarding severability. He informed the committee that Title 1 specifically addresses severability of legislation and relates that all legislation is to be interpreted as though it has a provision of severability, unless the legislature desires otherwise. Therefore, if the legislation is silent in regard to severability, then all of the provisions are specifically severable. SENATOR SEEKINS read Title 1: Sec. 01.10.030. Severability. Any law heretofore or hereafter enacted by the Alaska legislature which lacks a severability clause shall be construed as though it contained the clause in the following language: "If any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act and the application to other persons or circumstances shall not be affected thereby." 6:51:00 PM SENATOR SEEKINS moved to report SCS CSHB 149(FIN) am S(ct rule fld S), as amended, out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CCS HB 149 was reported out of the committee.
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