Legislature(2005 - 2006)
05/04/2005 04:45 PM Senate FIN
| Audio | Topic |
|---|---|
| Start | |
| SB46 | |
| HB61 | |
| HB33 | |
| HB149 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
6:26:44 PM SENATE CS FOR CS FOR HOUSE BILL NO. 149(JUD) "An Act relating to controlled substances regarding the crimes of manslaughter and misconduct involving a controlled substance; relating to the manufacture of methamphetamine and to the sale, possession, and delivery of certain substances and precursors used in the manufacture of methamphetamine; relating to listing certain anabolic steroids as controlled substances; relating to the listing of property that constitutes an illegal drug manufacturing site; amending Rule 41, Alaska Rules of Criminal Procedure; and providing for an effective date." This was the first hearing for this bill in the Senate Finance Committee. 6:27:16 PM JANE PEARSON, Staff to Representative Jay Ramras, the bill's sponsor, stated that this bill, which is a hybrid of "the best" components of SB 70-CRIMES INVOLVING CONTROLLED SUBSTANCES and SB 106-SALE OF METHAMPHETAMINE AND PRECURSORS, has evolved into "a truly comprehensive piece of legislation". By dealing "directly with the problems our society is facing regarding the growing abuse of methamphetamines and anabolic steroids", this bill "would serve to combat the growing and immediate problems associated with drug manufacturing abuse in the State". Ms. Pearson informed that Alaska is experiencing "a growing problem with methamphetamines being made in small local mom and pop type laboratories". The manufacturing of methamphetamines produces toxic waste into the environment. The activity is dangerous as it could result in fires, explosions, and endangerment to law enforcement, other emergency service personnel, and the community. Seven pounds of toxic waste could be the byproduct of each pound of methamphetamine (meth) that is produced. Ms. Pearson stated that by limiting the quantity of sole ingredient pseudoephedrines that could be purchased in a 30-day period to nine grams, this legislation would impact the ability of criminals to purchase pseudoephedrines, iodine crystals, and phosphorus, which are the three products utilized to manufacture methamphetamines. In addition, such products would be contained behind a service counter in a store and a log of such purchases must be kept and made available to law enforcement officers upon request. "Iodine crystal purchases must also be logged". The logs would allow law enforcement officers to "see who is purchasing the chemicals". Other components of the bill would implement distribution, registration and record-keeping provisions for wholesalers, manufacturers, distributors, and retailers who sell such products. Those who knowingly violate the requirements would face a Class "A" misdemeanor charge, "punishable by a fine of up to $10,000". Ms. Pearson also noted that the bill would allow for a charge of manslaughter to be levied against the manufacturer or deliverer of meth were a person to die from its usage. Ms. Pearson stated that due to the dangers imposed by the manufacturing of meth, this bill "would increase the bond for a meth manufacturer with a previous felony methamphetamine conviction to a minimum of a $250,000 cash bond". Presumptive sentencing of both "A" and "B" felonies for a person manufacturing meth with a child present would also be increased. Ms. Pearson conveyed that this legislation would also serve to make anabolic steroids a Class 5A controlled substance. Use of steroids, which are used to increase muscle mass, has been on the increase in the State, and abuses is occurring in people as young as the junior high school level. These abuses have been found to cause heart disease, liver damage, and other unwanted physical side affects. Ms. Pearson stated that "the bill would also amend" State Statutes pertaining to the requirement that the Department of Environmental Conservation keep records of certain contaminated drug manufacturing sites on their website. This information must be maintained "on the website for five years after the property has been deemed fit for use". Ms. Pearson reiterated that meth production and use, and steroid abuses are on the increase in the State. She asked the Committee to support the bill and move it out of Committee. [NOTE: Co-Chair Wilken assumed chair of the Committee.] 6:31:09 PM REPRESENTATIVE JAY RAMRAS, the bill's sponsor, informed the Committee that Ms. Pearson and Senator Gretchen Guess have assisted in the development of this "terrific omnibus drug bill" which would address a multitude of concerns, including the increased use and manufacturing of meth. The bill would also include provisions through which to hold landlords more responsible for whom they rent to. He reiterated Ms. Pearson's comments that the legislation would "help control" the availability of substances sold by retailers that are used in the manufacturing of meth. Representative Ramras explained that the regulations in the bill that are applicable to retailers would assist in deterring the practice referred to as "smerfing". Smerfing occurs "when a collection of young people … who use meth, gather up the raw ingredients and deliver them to the meth cook and the meth lab". Representative Ramras addressed the bill's fiscal impact by stating that the bill would generate a positive fiscal note, as other states that "have adopted a very proactive approach" in restricting the supply of products used in meth manufacturing via such means as requiring retailers to log such product purchases, have experienced a tremendous decline in meth production and meth labs; thereby allowing law enforcement resources to be used elsewhere. A reduction in steroid use would also occur. This legislation would be beneficial to the State. Co-Chair Wilken noted that, due to the fact that a [unspecified] testifier who supports the bill would not be available until the following day, the bill would be held in Committee. Senator Olson understood that the maximum amount of pseudoephedrine that could be purchased was nine grams. Ms. Pearson expressed that the nine-gram quantity would equate to three boxes of the specified drugs. Senator Olson asked regarding language in Sec. 3(d)(2) page four, line nine of the bill that specifies a quantity "of less than 24 grams" of the affected drugs. Ms. Pearson clarified that the bill was amended to include that language. It is specific to the quantities that could on hand at such places as lodges, schools, daycare centers, or treatment centers. Those places might purchase larger quantities due to the nature or location of their activity. Such items must be secured in a locked storage area. Senator Olson asked the nature of the log that a small remotely located business would be required to maintain pertaining to the sale of the over-the-counter drug "Sudafed". Ms. Pearson stated that the information required in the log would include valid government issued photo identification and other information as determined by the Department of Public Safety. Senator Olson remarked that this "would be quite a burden for someone" who just wanted to purchase Sudafed to relieve their cold symptoms. Representative Ramras acknowledged that the concern about "how to apply this fairly" has been an issue throughout the development of the bill. While the meth issue is primarily an urban problem, any action addressing it would affect, for instance, elderly tourists who might be seeking cold relief or people living in rural areas in which meth abuse is less frequent of an issue. Some supporters of this legislation desire to have the information in the logbooks electronically transmitted to the Department of Public Safety. However, he had countered that such action would serve to inform the Department of Public Safety of everyone who had a cold last year. "The middle road" that has been developed would include having a logbook that would be kept confidential so that such things as identity thief and target marketing would be kept to a minimum. Local law authority would be able to access the logs. As an aside he noted that the community of "North Pole is a particular hot bed for meth labs". Specific language in this regard is located in Sec. 11(e) pertaining to municipalities and Sec. 11(f) pertaining to law enforcement agency as denoted on page ten, lines 22 through 30. (e) Notwithstanding (a) of this section, if a municipality enacts an ordinance requiring wholesalers, manufacturers, and distributors to report the information maintained under (a) of this section, each wholesaler, manufacturer, and distributor shall regularly report that information to the municipal police department at intervals required in the ordinance. (f) Upon the written request of any law enforcement agency, any wholesaler, manufacturer, distributor, or a retailer shall report electronically or by mail the information collected in (a) or (b) of this section for the six month period following the written request. Representative Ramras acknowledged that the concern voiced by Senator Olson about how this legislation would affect a small retailer in a remote community in which there is no meth problem has not been addressed in this bill. Unfortunately, while there might not currently be a meth problem in an area, the problem "pops up everywhere". Any community could be "vulnerable" to it. The requirement would be that a logbook be kept and provided, upon request, to law enforcement. There would be no requirement to transmit the information at specified intervals unless a municipality adopted such policy. 6:38:00 PM Senator Olson agreed that a meth lab could operate anywhere. One was recently discovered in the community of Bethel. His concern however, was to evaluate whether the logbook requirement would be a burden on "small mom and pop stores". 6:38:37 PM Representative Ramras voiced that the desire was to prevent the provisions of the bill from being such "a burden on commerce" that a small convenience store might choose not to carry Sudafed. That action could be detrimental to a small business, as customers, knowing that Sudafed was no longer available there, would shop at a larger store to buy, not only Sudafed but also other incidentals that they would have purchased had they shopped at the convenience store. The intent would not be to drive business from small independent businesses to larger businesses such as WalMart or Fred Meyer or Safeway. He disclosed, "being mindful of that burden throughout" the development of this bill. He stressed that signing the logbook would be no different that showing identification to enter a bar or signing for a prescription at a drug store. Senator Olson understood that the logbook would require the purchaser's signature. Representative Ramras deferred to Dean Guaneli of the Attorney General's Office to answer that question. 6:40:26 PM DEAN GUANELI, Chief Assistance Attorney General, Criminal Division, Office of the Attorney General, Department of Law, informed the Committee that the entirety of the provisions that were included in SB 70-CRIMES INVOLVING CONTROLLED SUBSTANCES, which was legislation sponsored by Governor Frank Murkowski, have been included in this "comprehensive methamphetamine bill". The Department of Law supports all the provisions in HB 149. Representative Ramras worked diligently with the pharmaceutical industry to develop provisions that were acceptable to them as well as to address the needs of law enforcement. Mr. Guaneli stated that the nine-gram determination "is actually a fair amount of pseudoephedrine". Other states have adopted a six- gram level. The largest packet available for resale contains 96 pills, which is "just under three grams". This supply would equate to 24 days of usage for an adult and twice that for a child. The warnings on the packet specify seeking a doctor's advice if more than a seven days usage is needed for treatment. In summary, the nine-gram quantity would allow people in Rural Alaska and elsewhere to have an amount that would sustain their needs for a long period of time. Co-Chair Wilken, noting that Senator Gretchen Guess was in attendance, asked the Senator to participate in the discussion, as he understood that portions of a separate bill she had developed had been incorporated into this bill. 6:42:30 PM Senator Olson pointed out that numerous products containing the drugs and chemicals specified in this bill were available for purchase over the Internet or through the mail. Mr. Guaneli communicated that this would continue to be a challenge to law enforcement. Law enforcement officers have testified that "100-percent of the product uncovered at meth labs" found in the State, are in the pure form available at local retail outlets. "Once that source of raw material dries up", other sources would be sought. Other pseudoephedrine sources might include the Internet. Other bulk pseudoephedrine sources could be uncovered. Mr. Guaneli likened the transport of these items to the transport of illegal substances such as cocaine and heroine that are manufactured outside of the State and brought in. Law enforcement would need "to be vigilant at airports" and continue their good working relationship with the United States Postal Service in order to seize contraband items prior to their reaching the State. "It would be a constant challenge." Law enforcement personnel "are aware that a shift" to other sources would occur. 6:44:26 PM Representative Ramras stated that meth distribution in California "is so advanced" that the people involved have masqueraded as Federal Express personnel and have stolen "cases and cases of Sudafed". Meth abuse should be addressed at the federal level. 35,000 pharmacies and large drug manufacturers have organized to encourage federal regulation. Major drug manufacturers are investigating how to produce Sudafed so that its active ingredients could not be "cooked out". Representative Ramras noted that most "meth heads don't have credit cards"; they are "unsophisticated" cash buyers "who prey upon communities". 6:45:44 PM Co-Chair Wilken asked whether the logbook entries would be sufficient to get a warrant. 6:46:01 PM Mr. Guaneli understood that logbook entries would be one of the components that could substantiate the issuance of a warrant. "Possessing nine-grams is prima facie evidence of intent to sell." A scenario could include that of a law enforcement officer asking someone who was manufacturing meth where they got their raw materials; the response might be that they got it from someone who got it at the local WalMart. Law enforcement officers could then review WalMart's logbook. Findings that that person had made a number of such purchases over a period of time would provide sufficient information to garner a warrant to search someone's car and/or apartment. He noted however, that the purchase of more than nine-grams in a 30-day period would carry more weight than a nine - gram purchase over a six-month period. The shorter timeframe- purchasing situation would likely be required in conjunction with another illegal activity in order to have a warrant issued. Representative Ramras shared that in the Fairbanks area, a member of a group of "meth heads" "was arrested in three consecutive weeks at three different hotels". A written record would assist in tracking such individuals. The cost and time associated with pursuing these illegal activities should also be a consideration. Representative Ramras shared a story told to him by a woman who works at a Fred Meyer store, whose corporate policy is that Sudafed be kept behind the counter and purchases be limited to two boxes. Through an activity referred to as "smerfing", groups of young people, typically arriving in one car, would converge on a store and individually go in and each buys two boxes of Sudafed. Through such activity, the group could purchase between eight and twelve boxes of Sudafed. The woman told him that after one recent smerfing incident, she wrote down the license plate number of the car and reported it to the Department of Public Safety. Good citizens are concerned about the situation. The logbook would be very helpful to law enforcement officials "for the purposes of a warrant or the purpose of connecting all these people to the purchases of this drug." 6:49:13 PM Co-Chair Wilken asked regarding the criteria through which a law enforcement officer could access the logbook. Mr. Guaneli responded that the bill contains language to the effect that they could access the logbook "at any reasonable time". No warrant would be required. 6:49:48 PM Co-Chair Wilken, noting the inclusion of a letter in Member's packets from Carrs/Safeway, dated April 26, 2005 [copy on file], mentioned that he had, just today, received a "well-written letter" from Carrs/Safeway [copy not provided] about how this legislation would affect their 25-stores. While he did not have the letter with him, he asked that Representative Ramras review the letter and respond to the concerns and points specified. He asked that a copy of that response be provided to his office. SENATOR GRETCHEN GUESS asked the date of the letter being referenced. Co-Chair Wilken was uncertain as to whether the letter was the one in the packets or a more recent one. Senator Guess informed the Committee that the Senate Judiciary Committee had discussed the concerns specified in the April 26, 2005 letter, and that, with the lone exception being the continued inclusion of the logbook; the store's concerns had been addressed in the Judiciary committee substitute Version 24-LS0596\V before the Committee. During the discussions with the store, their lack of support for the logbook requirement was apparent. However, through compromise, the Judiciary Committee included language that would repeal the logbook in two years. However, the logbook issue could be revisited were the Department of Public Safety and the Legislature to determine that the logbook was essential in deterring meth lab activity. Co-Chair Wilken stated that he would verify the date of the letter in question. 6:51:09 PM Representative Ramras noted that in his experience as the owner of several establishments that serve alcoholic beverages, a trained bartender, regardless of how busy he or she was, would scrutinize a piece of identification in order to assure that the name and face on the identification were legitimate. "This is a reasonable burden to put on somebody." While he appreciated the concerns brought by Carrs/Safeway, "the greater good" would prevail. Similar legislation in other states has achieved "extraordinary success". 6:52:07 PM Representative Ramras expressed personally witnessing the devastation created by meth addiction. It is easy to get "hooked on". Rather than short-lived errant behavior, meth addiction "wreaks" people as addiction could occur after using the drug even one or two times. "They are lost to society." Therefore, "whatever inconvenience the retailer has to suffer for the time being until the pharmaceutical companies catch up to problem is okay by me". While this might create a burden on commerce, Meth use is a tremendous problem and "is a scourge on men and women age 18 to 29 and it is wreaking our homes and our schools and our workforce. It is everywhere in our community. It is causing crime. Its something that Carrs/Safeway needs to do as good corporate citizens and being good neighbors." 6:53:17 PM Co-Chair Wilken referred to the section of the April 26, 2005 letter from Carrs/Safeway, which expressed that the logbook would be contrary to someone's right to privacy. A law-abiding citizen simply seeking cold remedy should not be subject to such a public event. It would be okay for law enforcement officers to review the logbook were there cause, however, it would be unacceptable were police simply "on a fishing expedition" and noted a law-abiding citizen's name reflected there. That customer could get upset with the retailer were that to occur. He asked how "a balance" could be reached in this regard. 6:54:23 PM Mr. Guaneli stated that from a legal standpoint, "the activity of buying an over the counter drug in a large store is a lot different than buying prescription medication where you go up to the pharmacist counter and no one knows what you are buying". One could simply take an over-the-counter drug off the shelf and proceed to the regular checkout stand. There is a "much less expectation of privacy" at a checkout stand. Mr. Guaneli shared that shortly before the state of Iowa passed its pseudoephedrine restrictions, a university consumer survey was conducted. It found that 95-percent of consumers of such products purchased one box at a time and 75-percent of the consumers did not object to showing some sort of identification when making that purchase. "Most people understand that there is a value to the logbooks and they support that." In addition to the law enforcement value, logbooks would provide "a deterrent effect for people", who desire to misuse these products. To this point, Alaska State Troopers have determined that people who use these drugs develop paranoia, which would prevent them from wanting to show their identification. "There are a lot of benefits to be gained." Mr. Guaneli stated that it would be unlikely that the Alaska Court System would "allow a lawsuit against a store" given "the nature of the problem in Alaska and given that the material must be kept confidential except for law enforcement use. The stores would be "simply following the law as it's written" … that would not "be cause for liability". 6:57:11 PM Co-Chair Wilken asked whether this exposure issue had been discussed with Carrs/Safeway to "some resolution". Senator Guess affirmed that the issue had been addressed. The Senate Judiciary Committee added an amendment to exempt stores from civil liability "unless they knowingly or intentionally" broke the confidentially requirement. This language is included in Sec. 11(g) beginning on page ten, line 31 and continuing through line seven on page eleven. (g) The log required to be maintained by a retailer under (b) of this section and the information entered into the log is confidential. The retailer may not allow access to the log or release information contained within the log except to the Department of Public Safety or other law enforcement officers. A retailer is not liable in a civil action for release of information contained in the log in violation of the confidentially requirement of this section unless the retailer intentionally released the information or was aware at the time of the release that the information was being released in violation of this section. 6:57:52 PM Representative Ramras noted that when processed in a meth lab, Sudafed is "remarkable" as it delivers a substance that is 90- percent pseudoephedrine. "Other multi-ingredient cold medicines" produce only seven-percent pseudoephedrine substance. Thus, one would be required to purchase in excess of $60 of other products to yield the same amount of pseudoephedrine as a four-dollar Sudafed purchase would yield. Were a consumer uncomfortable with the logbook, they could purchase one of several hundred other multi- ingredient cold medicines that would not be subject to this legislation, which is specific to single ingredient cold medications. Therefore, while a consumer might be discouraged from purchasing a particular brand, other over the counter medicines would be available. He noted that this differs from cigarette purchases in that all cigarettes are located behind a secured counter. 6:59:29 PM Senator Hoffman asked whether the legislation includes any provisions regarding the cross-referencing of logbooks by law enforcement officials. Mr. Guaneli clarified that the legislation does not contain any "specific provisions" in this regard. He understood that larger retail chains would be utilizing electronic formatted logbooks, which could be easily sorted. Smaller stores would be more limited in how their logbooks are organized. For investigative purposes, it would be likely that the Alaska State Troopers could be required to implement electronic sorting so that the files would be easier to view. 7:00:27 PM Senator Hoffman asked the reason that such specifications were not included in the legislation, as cross-checking of names would be helpful. Mr. Guaneli noted that this issue was discussed during the bill's development. In an effort to balance law enforcement needs with the burden on small businesses, the language in the bill was deemed acceptable to the needs of the Department of Public Safety. Senator Hoffman argued that this "additional step should be taken" given the fact that, as pointed out by Representative Ramras, using meth even one or two times could be addictive. Non-aggressive action in this manner would indicate that the nationwide meth threat is not as severe as stated. Representative Ramras stated that "we are trying to give law enforcement the tools they asked for". It was determined, after discussing the issue with the Department of Public Safety, that the logbooks would be utilized as a reference. "For the Department to have a record of everyone in the State who has had a cold in the last twelve months" would be burdensome. The desire is that the deterrents in this bill, combined with the child endangerment language penalties, would sufficiently curtail the supply. Similar legislation has proven to be quite successful in states such as Oregon, Iowa, Oklahoma, and Nebraska. Such action would allow law enforcement to redirect some of their resources toward other endeavors. 7:03:43 PM Representative Ramras expressed that setting up meth labs in rural areas is attractive as the cooking process produces a terrible smell. However, rural settings are not always the norm, as a meth lab was found in an apartment building in Fairbanks in which the District Attorneys' office occupied the first floor. This occurred even though the landlord conducts thorough background checks on its tenants. "This stuff is everywhere." Representative Ramras commented that while there might be a desire to more thoroughly perfect this process, the purpose of the legislation is to identify those who are smerfing rather than the tourist who is purchasing Sudafed to address a cold. 7:04:57 PM Representative Ramras thanked the Committee for its attention to "such an important issue" in the "waning days" of the Session. Co-Chair Wilken noted that the bill would be HELD in Committee. It would be brought back before the Committee the following day in order to allow for additional testimony.
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