Legislature(1993 - 1994)
03/28/1994 01:00 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 28, 1994
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Gail Phillips
Rep. Pete Kott
Rep. Joe Green
Rep. Cliff Davidson
MEMBERS ABSENT
Rep. Jim Nordlund
OTHER LEGISLATORS PRESENT
Rep. Gene Therriault
Rep. Cynthia Toohey
COMMITTEE CALENDAR
HB 478: "An Act relating to the authority of mobile
intensive care paramedics and emergency medical
technicians to pronounce death under certain
circumstances."
MOVED OUT OF COMMITTEE
HB 356: "An Act relating to living wills and do not
resuscitate orders; and providing for an effective
date."
MOVED OUT OF COMMITTEE
HB 513: "An Act relating to financial assistance for
certain owners or operators of underground
petroleum storage tank systems; and providing for
an effective date."
MOVED OUT OF COMMITTEE
HB 487: "An Act relating to the sale, display, or
distribution of material harmful to minors at
places where minors are present or allowed to be
present and where minors are able to view such
material; and prohibiting the sale or display of
certain audio recordings, phonograph records,
magnetic tapes, compact discs, or videotapes,
without warning labels and opaque wrappings."
HEARD AND HELD
SB 321: "An Act relating to the taking of a legible set of
fingerprints when a person is arrested, upon
initial appearance or arraignment, upon the
conviction of the person, and when the person is
received at a correctional facility, and providing
that the set of fingerprints shall be provided to
the Department of Public Safety; relating to
criminal and crime records and information;
requiring the reporting of information concerning
homicides and suspected homicides to the
Department of Public Safety for analysis;
requiring the Department of Public Safety to
participate in the Federal Bureau of
Investigation, Violent Criminals Apprehension
Program."
NOT HEARD
WITNESS REGISTER
REPRESENTATIVE GENE THERRIAULT
Alaska State Legislature
State Capitol, Room 421
Juneau, AK 99801-1182
Phone: 465-4797
POSITION STATEMENT: Prime Sponsor of HB 478
CRAIG LEWIS
1112 Lake Drive
North Pole, AK 99705
Phone: 448-2094
POSITION STATEMENT: Testified via teleconference in support
of HB 478
RONNI SULLIVAN
Southern Region EMS
6130 Tuttle
Anchorage, AK 99507
Phone: 688-2170 h./562-6449
POSITION STATEMENT: Testified in support of HB 478
MARK JOHNSON, Chief
Emergency Medical Services Section
Alaska Department of Health & Social Services
PO Box 110616
Juneau, AK 99811
Phone: 463-5807 h./465-3027
POSITION STATEMENT: Testified in support of HB 478
and HB 356
STEVEN O'CONNOR, Assistant Chief
Emergency Services
231 S. Binkley
Soldotna, AK 99669
Phone: 262-4792
POSITION STATEMENT: Testified in support of HB 478
THOMAS NAROW
PO Box 10295
Fairbanks, AK 99710
Phone: 457-2501
POSITION STATEMENT: Testified in support of HB 478
CAROL MILLS
Nurse Practitioner & Clinical Coordinator
Galena Health Center
Galena, AK 99741
Phone: 656-1366
POSITION STATEMENT: Testified in support of HB 478
YVONNE HOWARD
Eagle Emergency Medical Services
Eagle, AK 99738
Phone: 547-2256
POSITION STATEMENT: Testified in support of HB 478
PAUL FINCH, Director
Fort Yukon Clinic
Fort Yukon, AK 99740
Phone: 662-2462
POSITION STATEMENT: Testified in support of HB 478
BRENT URSEL
McGrath, AK 99627
Phone: 524-3299
POSITION STATEMENT: Testified in support of HB 478
REPRESENTATIVE CYNTHIA TOOHEY
Alaska State Legislature
State Capitol, Room 104
Juneau, AK 99801-1182
Phone: 465-4919
POSITION STATEMENT: Prime Sponsor of HB 356
JOHN BARNETT, Executive Director
Board of Storage Tank Assistance
Department of Environmental Conservation
410 Willoughby, Suite 105
Juneau, AK 99801-1795
Phone: 465-5200
POSITION STATEMENT: Testified on HB 513
REPRESENTATIVE PETE KOTT
Alaska State Legislature
State Capitol, Room 409
Juneau, AK 99801-1182
Phone: 465-3777
POSITION STATEMENT: Prime Sponsor of HB 487
GEORGE DOZIER, Legislative Aide
Representative Pete Kott's Office
State Capitol, Room 409
Juneau, AK 99801-1182
Phone: 465-3777
POSITION STATEMENT: Testified on HB 487
JERRY LUCKHAUPT
Legislative Legal Counsel
State of Alaska
130 Goldstein Bldg.
Juneau, AK 99801
Phone: 465-2450
POSITION STATEMENT: Testified on HB 487
DANIELLA LOPER, Judiciary Committee Aide
Representative Brian Porter's Office
State Capitol, Room 122
Juneau, AK 99801-1182
Phone: 465-4990
POSITION STATEMENT: Commented on HB 487
PREVIOUS ACTION
BILL: HB 478
SHORT TITLE: AUTHORITY TO PRONOUNCE DEATH
SPONSOR(S): REPRESENTATIVE(S) THERRIAULT,James
JRN-DATE JRN-PG ACTION
02/14/94 2376 (H) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2376 (H) HES, JUDICIARY
03/07/94 (H) HES AT 03:00 PM CAPITOL 106
03/07/94 (H) MINUTE(HES)
03/09/94 2678 (H) HES RPT CS(HES) 9DP
03/09/94 2679 (H) DP: VEZEY,KOTT,G.DAVIS,BUNDE,
TOOHEY
03/09/94 2679 (H) DP: B.DAVIS, NICHOLIA, BRICE,
OLBERG
03/09/94 2679 (H) LETTER OF INTENT WITH HES
REPORT
03/09/94 2680 (H) -2 ZERO FISCAL NOTES (DHSS)
3/9/94
03/25/94 (H) JUD AT 01:00 PM CAPITOL 120
03/28/94 3029 (H) COSPONSOR(S): JAMES
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 356
SHORT TITLE: LIVING WILLS AND MEDICAL CARE ORDERS
SPONSOR(S): HEALTH, EDUCATION AND SOCIAL SERVICES
JRN-DATE JRN-PG ACTION
01/10/94 2021 (H) READ THE FIRST TIME/REFERRAL(S)
01/10/94 2021 (H) HES, JUDICIARY
03/03/94 (H) HES AT 03:00 PM CAPITOL 106
03/03/94 (H) MINUTE(HES)
03/14/94 (H) MINUTE(HES)
03/15/94 2809 (H) HES RPT 3DP 5NR
03/15/94 2809 (H) DP: G.DAVIS, BUNDE, TOOHEY
03/15/94 2809 (H) NR:KOTT, VEZEY, OLBERG,
B.DAVIS,NICHOLIA
03/15/94 2809 (H) -FISCAL NOTE (DHSS) 3/15/94
03/15/94 2809 (H) -ZERO FISCAL NOTE (DCED)
3/15/94
03/15/94 2809 (H) FIN REFERRAL ADDED
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 513
SHORT TITLE: GRANTS/LOANS FOR STORAGE TANK OWNERS
SPONSOR(S): LABOR & COMMERCE
JRN-DATE JRN-PG ACTION
02/28/94 2551 (H) READ THE FIRST TIME/REFERRAL(S)
02/28/94 2551 (H) L&C, STATE AFFAIRS, JUDICIARY
03/02/94 2586 (H) L&C REFERRAL WAIVED
03/15/94 (H) STA AT 08:00 AM CAPITOL 102
03/15/94 (H) MINUTE(STA)
03/22/94 (H) STA AT 08:00 AM CAPITOL 102
03/22/94 (H) MINUTE(STA)
03/23/94 2931 (H) STA RPT CS(STA) 4DP 3NR
03/23/94 2931 (H) DP: VEZEY, KOTT, SANDERS,
G.DAVIS
03/23/94 2931 (H) NR: OLBERG, B.DAVIS, ULMER
03/23/94 2931 (H) -ZERO FISCAL NOTE (DEC) 3/23/94
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 487
SHORT TITLE: SALE/DISPLAY OF MATERIAL HARMFUL TO MINOR
SPONSOR(S): REPRESENTATIVE(S) KOTT
JRN-DATE JRN-PG ACTION
02/14/94 2379 (H) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2379 (H) LABOR & COMMERCE, JUDICIARY,
FINANCE
02/24/94 2522 (H) SPONSOR SUBSTITUTE
INTRODUCED-REFERRALS
02/24/94 2522 (H) LABOR & COMMERCE, JUDICIARY,
FINANCE
03/15/94 (H) L&C AT 03:00 PM CAPITOL 17
03/15/94 (H) MINUTE(L&C)
03/22/94 (H) L&C AT 03:00 PM CAPITOL 17
03/22/94 (H) MINUTE(L&C)
03/25/94 2970 (H) L&C RPT CSSS(L&C) NEW TITLE
2DNP 4NR
03/25/94 2970 (H) DNP: SITTON, WILLIAMS
03/25/94 2970 (H) NR:GREEN,PORTER,MULDER,HUDSON
03/25/94 2970 (H) -INDETERMINATE FISCAL NOTE(LAW)
3/25/94
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
BILL: SB 321
SHORT TITLE: FINGERPRINTING AND CRIME RECORDS
SPONSOR(S): SENATOR(S)HALFORD,Phillips,Kerttula,Taylor,
Pearce,Donley,Leman,Little,Miller,Sharp;
JRN-DATE JRN-PG ACTION
02/14/94 2832 (S) READ THE FIRST TIME/REFERRAL(S)
02/14/94 2832 (S) JUD, FIN
03/02/94 (S) JUD AT 01:30 PM BELTZ ROOM 211
03/02/94 (S) MINUTE(JUD)
03/07/94 3087 (S) JUD RPT CS 4DP NEW TITLE
03/07/94 3088 (S) ZERO FNS TO SB & CS PUBLISHED
(DPS-2)
03/15/94 (S) FIN AT 08:30 AM SENATE FIN 518
03/15/94 (S) MINUTE(FIN)
03/16/94 3240 (S) FIN RPT CS 5DP 1NR NEW TITLE
03/16/94 3241 (S) PREVIOUS ZERO FNS APPLY(DPS-2)
03/16/94 (S) RLS AT 00:00 AM FAHRENKAMP
ROOM 203
03/16/94 (S) MINUTE(RLS)
03/16/94 (S) FIN AT 09:00 AM SENATE FIN 518
03/21/94 3293 (S) ZERO FISCAL NOTE PUBLISHED
(CORR)
03/22/94 3317 (S) RULES TO CALENDAR 4CAL 1NR
3/22/94
03/22/94 3319 (S) READ THE SECOND TIME
03/22/94 3320 (S) COSPONSOR(S): KERTTULA, TAYLOR,
PEARCE,
03/22/94 3320 (S) DONLEY, LEMAN, LITTLE, MILLER,
SHARP
03/22/94 3320 (S) FIN CS ADOPTED UNAN CONSENT
03/22/94 3320 (S) ADVANCED TO THIRD READING UNAN
CONSENT
03/22/94 3320 (S) READ THE THIRD TIME
CSSB 321(FIN)
03/22/94 3321 (S) PASSED Y20 N-
03/22/94 3324 (S) TRANSMITTED TO (H)
03/23/94 2924 (H) READ THE FIRST TIME/REFERRAL(S)
03/23/94 2924 (H) FINANCE
03/25/94 2980 (H) FIN REFERRAL WAIVED
03/25/94 2980 (H) JUD REFERRAL ADDED
03/28/94 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-53, SIDE A
Number 000
The House Judiciary Standing Committee was called to order
at 1:20 p.m. on March 28, 1994. A quorum was present.
Chairman Brian Porter stated the following bills would be
heard: HB 478, HB 356, HB 513, and HB 487. He stated that
SB 321 would not be heard. He called Representative Gene
Therriault to come forward and introduce HB 478.
HB 478 - AUTHORITY TO PRONOUNCE DEATH
Number 022
REP. GENE THERRIAULT, representing House District 33,
thanked Chairman Porter and read a brief sponsor statement.
It read: HB 478 proposes to allow mobile intensive care
paramedics and emergency medical technicians to determine
and pronounce death under certain circumstances. Registered
paramedics or certified EMT's who are active members of the
certified emergency medical service, may make the
determination in the pronouncement of death. If a physician
is not immediately available upon determining that the
person has suffered irreversible cessation of circulatory
and respiratory functions. Currently, when a member of
emergency medical service begins CPR, they are required to
continue resuscitation until the person recovers, the EMT or
paramedic is relieved by either a medical facility or a
physician. The responding parties become physically
exhausted and no longer able to continue. Their physical
safety is seriously threatened, or a physician pronounces
the person dead. Many times physicians in medical
facilities are not immediately available, and emergency
medical response members are required to continue
unproductive resuscitation for several hours. HB 478 would
allow an EMT or paramedic to declare death in situations
where a physician is not available. This will help
emergency response teams to better attend to the emergency
medical needs of the State of Alaska.
Number 072
CRAIG LEWIS, Fairbanks via teleconference strongly urged
legislators to support this bill. He said the bill was long
overdue for the EMT and paramedic community. As in some
cases, administering CPR for six or seven hours is a
traumatic and barbaric situation to put EMT's through, as
well as the family of the people involved. This bill, quite
simple, would resolve that situation.
Number 100
RONNI SULLIVAN, Executive Director for Southern Region
Emergency Medical Services in Anchorage. She is also a
licensed paramedic who has been involved in emergency
services for 17 years. She supported HB 478 fully. She
believed the bill to be valuable to medical service
providers, particularly to rural areas and to medivac
services. There are hundreds of stories about needless
prolonged transportation. These cases put a lot of stress
of the EMS providers, on the patients' families, and they
deny the patient the right to dignity after death. Long
term resuscitative efforts do not work, we know. They cause
EMS yet to continue, often with red lights and siren over
very isolated, snowy, dangerous routes. She fears this
endangers someone else's life, trying to continue
resuscitation that everyone knows will not work. At the
same time that resuscitation service continues, often
medivac services have been called in at a great expense.
This is a rare bill. It works for everyone. She urged
support.
Number 144
CHAIRMAN PORTER asked if was also concern about liability if
they were not given authority to pronounce death.
MS. SULLIVAN answered that they had not had a great deal of
liability because they had not yet had the responsibility.
Number 154
REP. JOE GREEN asked about a California law stating that you
had no duty to render aid, but once you start to render aid,
then you have a duty to continue. Maybe that is not a
problem in Alaska, but with passing this law, it seems like
it would help that individual who had gotten himself in and
now is hung up for a long time.
Number 171
MS. SULLIVAN answered that it absolutely would help, and the
parameters in this bill are very specific for when you can
stop resuscitation and when you can not.
Number 178
MARK JOHNSON, Chief, Emergency Medical Services Section for
the Alaska Department of Health and Social Services. He
stated that they do support this bill. It starts with some
definitions that everyone can agree on, such as a person who
is decapitated is dead. But then the part of the bill that
is most important for our EMT's is where it says, "CPR must
continue for a normothermic patient up to 30 minutes, and
then they can stop and declare the patient dead, or up to
one hour for a hypothermic patient, because we have had some
successful resuscitations after prolonged CPR for cold water
near drowning, for example. We have had a lot of successes
in our state but he believes the research is very clear.
Any time you have to do CPR on somebody for that long a
period of time, there is no hope, and I think this would be
a good bill.
Number 205
STEVE O'CONNOR, Assistant Chief of Emergency Services in
Soldotna and also currently serves as the chair of the
Alaska Council of Emergency Medical Services. He supported
passing of the bill. It will go a long way in helping the
paramedics through real difficult situations in rural areas.
Number 220
THOMAS NAROW, Chief of Service for Interior Ambulance &
Rescue Squad. They cover a large portion of the Northeast
(inaudible) Borough as well as provide medivac to Interior
Alaska ground ambulance (inaudible). He encouraged the
support of this bill as they can get out quite remote, and
as a provider, he felt this would serve as a great benefit
to himself as well as to other members of his department, to
be able to make that determination to provide a little
dignity for the patient and their family, and put a little
bit more ease in the mind of the medics who have had to work
these (inaudible) for a long period of time.
Number 254
CAROL MILLS, Nurse Practitioner and Clinical Coordinator for
the Galena Health Center, testified offnet and supported the
bill after seeing great problems for 13 years with medivac
flights, which take about four hours to arrive in Galena.
Number 282
YVONNE HOWARD testified offnet in support of the bill. She
has been in charge of the Eagle Emergency Medical Service in
Eagle for 10 years. She has worked in the emergency medical
profession for 16 years. One time they tried to resuscitate
a person for eight hours, rotating different people.
Medivacs normally take one and one-half to two hours to
arrive in Eagle. She encouraged passage of the bill.
Number 316
PAUL FINCH, Fort Yukon Clinic Director for 7 years testified
offnet and reconfirmed that the bill is a good idea.
Number 345
BRENT URSEL, from McGrath testified offnet and felt the bill
to be very important, especially for the Interior
(inaudible) and small villages that don't have lighted
runways, that don't have runways long enough to (inaudible).
Number 376
REP. PETE KOTT motioned to move CSHB 478(HES) with
individual recommendations and fiscal notes.
Number 395
REP. GAIL PHILLIPS noted that the letter of intent requires
additional training for EMT's, and the other requires
extensive notification. On the first one requiring
additional training for EMT's, she assumed this training had
to be certified, yet did not see in the bill where that was
stated.
REP. KOTT said that it was the intent that this additional
training be put into the EMT standardized training program,
however, based on testimony, it is already included. He
just wanted to insure that for those areas that, perhaps,
did not have it, they would address the issue and also to
bring it up during re-certification of annual training,
however it comes about; to make sure that everybody is aware
of it.
Number 423
REP. JEANNETTE JAMES expressed faith in the EMT's, and she
lacked concern about additional training. She understood
the need for requiring extensive notification, but she
wanted to know what the fiscal impact would involve.
REP. KOTT answered there would be absolutely no fiscal
impact.
Number 440
REP. PHILLIPS asked what the technical process would be for
how the notification would be put into place. One of the
concerns for not having to continue resuscitation has come
from the senior centers, therefore doing something with the
senior centers or the people that respond in the senior
arena.
CHAIRMAN PORTER asked Mark Johnson if he could help with
either one of those questions.
Number 448
MR. JOHNSON replied that with the training, the course that
provides for certification for EMT's, is a national standard
curriculum, and what we would be doing here is letting
people in our state know these very strictly-defined
circumstances, EMT's are allowed to deviate from the
typical standard practice where they do not discontinue
resuscitation until they turn the patient over to a
hospital, or physician, or whatnot. We can get that
information out to our people and to the medical directors,
all the state certified ambulance services in Alaska have
to have medical directors, but not all of the EMT's are
necessarily members of a state certified service, so we will
get that information out if this bill passes and make sure
the medical directors provide the instruction. Any
additional training they get, can be applied to their
re-certification hours.
MR. JOHNSON also addressed the notification question. He
thought the notification issue would actually be on the next
bill to be heard.
REP. GREEN still had a question about the duty of the
average citizen, once having began CPR. He asked if passage
if this bill would help in regards to the average good
Samaritan?
CHAIRMAN PORTER said it did not.
CHAIRMAN PORTER assured Rep. Green that this bill only
addresses people who are certified as EMT's and intensive
care persons.
There was a motion to move CSHB 478. CSHB 478(HES) was
passed out of committee with individual recommendations.
HB 356 LIVING WILLS AND MEDICAL CARE
REP. CYNTHIA TOOHEY explained HB 356 to be, "An Act relating
to the living wills and `Do Not Resuscitate' orders; and
providing for an effective date." HB 356 compliments
current statutes on the right of the terminally ill by
adding specific recognition of "Do Not Resuscitate" (DNR)
orders to the existing legislation on the rights of the
terminally ill. To make a declaration relating to the use
of life sustaining procedures. A new section allows
attending physicians to issue DNR orders, requires the
Department of Health and Social Services, with the approval
of the State Medical Board, to issue regulations adopting a
standardized protocol governing the withholding of CPR by
physicians and other health care providers and establishes
the requirements under which health care providers other
than the physicians may comply with a DNR order. Section
18.12.037 requires the Department of Health and Social
Services to develop the standardized design for DNR
identification card, forms, necklaces and bracelets, to
indicate that the possessor has executed a living will or
that a DNR order has been issued by a physician. Other
provisions of the bill amend existing statutory provisions
by including DNR's along with living wills in areas such as
immunity for health care providers, acting under the
provisions of the living will and DNR orders, and penalties,
etc. Do not resuscitate orders are issued only in the case
of a terminally ill person. Under existing practices,
emergency response providers, (EMT's and paramedics) are
required to institute CPR on site even if the sick person
has a living will. A properly executed DNR order and
procedure protocol recognized by all concerned parties would
help to avoid futile and unwanted interventions. Similarly,
within health care institutions, DNR orders are necessary in
the absence of the living will, when attempts at
resuscitation serve only to prolong the process of dying.
She urged favorable consideration of this legislation."
Number 557
REP. PHILLIPS asked Rep. Toohey if a person has to have a
living will in order to get the DNR bracelet or necklace, or
whatever, or can they could get one without having a living
will.
Number 561
REP. TOOHEY said the only thing they must have in order to
get one is the physician who originally signed the DNR.
Number 566
REP. PHILLIPS said that on behalf of this bill, she had been
requested by the senior centers in her district to put some
legislation similar to this forward, and there has been
support from her district for this legislation.
Number 573
MR. JOHNSON said this DNR, as Rep. Toohey stated, does for
people who are in the final stages of death, to put them
through the agony and discomfort of resuscitation, this
would allow them and their physician to agree, and it would
allow us at the state level to have a standardized system
and protocol across the state. There are some good systems
already in place in Anchorage and Juneau, and a few other
places that he thinks work quite well, which will be used as
models if this bill passes. The main advantage is that it
would be standardized across the state and the
identifications and everything would be standardized, so
everybody understands how the system works, and when the
EMT's get there, they know what they are looking for.
Sometimes, if it is a person who collapses on the street,
the EMT's are not right now able to recognize the DNR
patients, so this would help resolve some of those issues.
Number 590
REP. PHILLIPS clarified that there has to be an actual
physical piece of evidence that the EMT actually sees and
reads in order to not do the resuscitation.
CHAIRMAN PORTER said you could also get a verbal order from
a doctor in the hospital.
Number 608
MR. JOHNSON said that sometimes they will have a person's
home identified, or maybe a name at the nursing home, so the
dispatch will already know the person has a DNR. That works
fairly well.
Number 613
REP. PHILLIPS made a motion to move HB 356 with individual
recommendations and fiscal notes attached.
CHAIRMAN PORTER, hearing no objection, declared HB 356 moved
from committee.
HB 513 - GRANTS/LOANS FOR STORAGE TANK OWNERS
Number 620
JOHN BARNETT, Executive Director for the Board of Storage
Tank Assistance, explained that the Board and the Department
of Environmental Conservation both support the CS for HB
513. The Board is primarily an appeal board. The
legislation you have in front of you was requested on behalf
of the Alaska underground tank owners and operators, which
operate underground storage tank facilities throughout the
state. These storage facilities are regulated through both
the EPA as well as the state of Alaska. At the current
time, we have about 142 unfunded applications for
assistance, totaling about $42,000,000. Out of those 842,
about 151 of them have been determined ineligible for
assistance by the Department of Environmental Conservation.
Under current law, the only thing that can be appealed to
the Board of Storage Tank Assistance is ineligible cost. If
a certain cost has been determined to be ineligible, such as
the certain cost for the kind of upgrade equipment, or
certain kind of remediation equipment, if some cost has been
determined ineligible, the owner can come to the board, the
board can rule on that dispute, it can mediate the dispute
between the Department and the owner. We feel that the
legislative intent was to have an appeal board that would
hear all manners of appeals related to the storage tank
assistance fund. This section 1 within 513 clarifies the
authority of the board so that if an owner or operator's
cost is determined ineligible, as well as whether or not the
owner himself has been determined ineligible, the board can
still hear that appeal. The decisions by the board are
still subject, of course, to existing statutes regarding the
types of tanks involved and the other eligibility
requirements. This will only provide a forum for that
appeal to be heard. The second section within 513 corrects
an oversight in the enabling legislation. The financial
assistance program has three basic components to it. It has
a testing program, a cleanup program, and a closure and
upgrade program. Cleanup is for cleaning up contamination
from leaking tanks, the testing program tests whether or not
the tank is leaking right now. Closure and upgrade program
very simply closes out the old tanks, and upgrades those
tanks to new tanks that meet EPA standards and hopefully
will not leak and contaminate future drinking water supplies
in the state. The testing program has already sunsetted by
statute. The cleanup program, the application sunset, is
this July 1, 1994. The closure and upgrade program
currently has no sunset in statute. The sunset listed here
is December 31, 1994, which would correct an oversight in
the original legislation, and begin the first step in
phasing out the storage tank assistance fund, as far as the
application period. Also at this time next year, we will
have a complete listing of all the applicants and have a
good understanding of the total scope and need of storage
tank owners in the state. The third section within HB 513
has been placed in here to assist those upgrade and closure
applicants who have yet to be funded. With the cleanup
program deadline coming up July 1, 1994, and since most
contamination is not discovered until an old tank is taken
out of the ground, many of these applicants that have been
waiting for closure and upgrade funds will not discover
contamination until after the cleanup deadline has passed.
What this does, is allows those owners that are already on
the list, who have applied by the deadline of December 31,
if they have applied for assistance, and if they are using
state funds, and if they find contamination, they will still
be able to participate in the program. The program has been
very successful. To date, we have 34 ongoing cleanup
projects. We have 11 projects we have closed out,
completely using storage tank assistance funds. We have 246
actual sites that have been cleaned up or a certain amount
of corrective action activities actually, that have been
undertaken, who are waiting for funds. We also have about
179 sites where closure and upgrade activities have been
completed, thanks to the storage tank assistance fund. So
it is a fairly good prevention program as well. So we urge
the committee to pass out HB 513.
Number 705
REP. PHILLIPS inquired on the last paragraph of the position
paper regarding HB 513 where it says in part "allowing
applicants who have already applied for financial assistance
to remain eligible for clean up, will further reduce the
demands on the spill response fund." I was wondering how
you could make such a comparison?
MR. BARNETT responded that what they were concerned with was
that if a person could not undertake the activities
themselves, right now they have the avenue of the storage
tank assistance fund. If the storage tank assistance fund
is not available to them, and if they cannot afford to pay,
the state steps in with spill response funds of which then
cost recovery must take place. The further demands were
referring to some facilities that were affected by the spill
response fund prior to the enabling legislation that created
the storage tank assistance fund. There's certain
facilities on the Kenai Peninsula that response funds were
used, the cost was probably at least twice as high, to
actually undertake the clean up as it cost to it using the
storage tank assistance fund, primarily because we avoid
litigation, we allow the owners to actually supervise the
activities, we use certified workers, private workers within
the state, and we do not use the state-lead contractors, to
actually do this work.
Number 735
CHAIRMAN PORTER inquired as to whether currently, without
the ability to appeal to the board on just a denial of
services, someone would have to go to court?
Number 738
MR. BARNETT responded that the only avenue open to a person
who has been determined ineligible at this time would be to
go through the court system.
Number 745
REP. PHILLIPS moved to pass HB 513 from committee with
individual recommendations and a zero fiscal note.
Number 747
CHAIRMAN PORTER, hearing no objection, declared HB 513
passed from committee.
HB 487 - SALE/DISPLAY OF MATERIAL HARMFUL TO MINOR
Number 752
REP. PETE KOTT, prime sponsor of HB 487, read his sponsor
statement into the record as follows: "The introduction of
this bill was a result of my concern with the growing number
of violent crimes in Alaska. Cases of reported rape, for
example, have nearly doubled since 1989. Furthermore, there
is growing evidence that violent crimes, especially rape and
murder are more frequently committed by the young people in
our society. I believe that a contributing factor in this
rising violence among young people is the increased
frequency of sex related violence as a theme, things like
rock-n-roll, and rap music, more specifically. This
conclusion has been supported by the U.S. Attorney General's
Commission on Pornography, which found that exposure to
sexually violent material resulted in acts of sexual
aggressiveness and anti-social behavior. Thus, it is
self-evident that some material, whether in visual or oral
format may not be suitable for distribution to children. At
a minimum, the seller should make some attempt to shield
innocent young people from unwanted contact with such
material. This bill, while recognizing the constitutional
restraints imposed on the legislature's right to curtail
distribution of certain material, acts on the state's
legitimate interest in providing some level of protection to
children who may be harmed by unwanted exposure to this
sexually explicit material. The bill would prohibit the
sale to minors of certain sexually explicit material. It
would require that printed matter that falls into the
definition of material harmful to minors and is displayed
where minors are apt to view the materials, must be sealed
in an opaque wrapper or placed in what's called a blinder
rack. Recording materials such as CD's, tapes, and those
type of things, would require opaque wrappings or blinder
racks only if the offensive matter is depicted on the cover
or packaging. The definition of material harmful to minors
is drawn from the obscenity definition set forth by the U.S.
Supreme Court, as applied to minors. The bill that we have
before us, I think, is a very important one. I certainly
believe that the messages and values that young people learn
from the prevailing culture, which is us here at this table,
will determine how they live their lives, and in turn, the
ultimate nature and character of our society. What this
bill does is recognize that the state has a compelling
interest in protecting the health, safety and morals of its
minors. It recognizes that some materials harmful to the
health, safety and morals of minors, even though the same
material, perhaps is not as obscene to adults. It
establishes very clear, a definite, narrowly tailored
guideline for determining what material is in fact harmful
to minors. In doing so, in this area it follows the
standards established by the U.S. Supreme Court. It
recognizes that minors in Alaska are exposed to commercial
establishments, to material harmful to minors. It also acts
to solve this problem by curtailing access by minors, to
material that is, in fact, harmful to them. It proscribes
the sale to the minors, of material harmful, and proscribes
the display for sale of material harmful to minors.
REP. KOTT continued, "Let me just kind of briefly, elaborate
and articulate what this bill does not do. It does not
apply to noncommercial settings, such as homes, libraries,
or schools, only sale or display for sale fall within its
purview. It does not proscribe the sale of any material to
adults. It does not automatically reach all sex-related
materials. If I might just depart very briefly, and read
into the record, written testimony that was received earlier
by a person named Ann Barnes which reads `Alaska is number
one in the United States in cases of child sexual abuse.
Based on the facts, we do know about the affects,
emotionally and psychologically, on children who have been
exposed to pornography, or to adult sexually-explicit
material and the lasting damage it causes, not to mention
the statistics that connect these materials with child
sexual abuse. HB 487 is long overdue.' Unfortunately, she
could not be with us today."
Number 848
REP. JAMES inquired whether it could be explained to her
just what this bill does and just what we want to stop?
Number 851
REP. KOTT responded that this bill does two things. First
of all, it articulates very clearly that if you are
displaying or selling this kind of material, that's
addressed in the bill, you cannot sell it to minors, anyone
under 18. Secondly, if you are selling it in a commercial
establishment, you must ensure the material that falls into
the category of "harmful to minors" you must cover it.
Number 868
REP. JAMES remarked that one of the problems we have always
had with pornographic material is to define just exactly
what it is and she would like to have the language pointed
out, in this bill, that sufficiently describes this so there
is absolutely no question as to what can and cannot be
available in a store where children are.
Number 880
GEORGE DOZIER, Legislative Assistant to Representative Pete
Kott, responded that the definition of matter which is
harmful to minors, which is a take-off of the old obscenity
standard, adopted to materials we are concerned about. That
definition is contained on the bottom of page 2, beginning
on line 28 and it carries over to page 3, line 8. It
essentially is a definition which is taken from Miller v.
California, an obscenity case where the Supreme Court
described...
TAPE 94-53, SIDE B
Number 000
MR. DOZIER continued...what had to be satisfied for the
state has any business regulating or proscribing
obscenities. What we have done in HB 487 and adapted it as
permitted by another case, Ginsburg, where the court stated
in essence, that even when material is not obscene, it still
can be regulated concerning minors' contact with that
material, even though it is not considered to be obscene by
adult standards. This bill takes language used in Ginsburg
and adapted it to include a later definition of obscenities
that is contained in Miller.
Number 087
REP. JAMES inquired as to where the line is drawn in this
issue?
Number 108
MR. DOZIER responded that the line has been drawn by the
U.S. Supreme Court in articulating the standard. He
continued by stating that it would be up to a jury to decide
whether a specific material would be found to cross the
line. Just because something is suggestive is not enough to
meet one of the criteria established in the bill. It would
have to be patently offensive, it has to be lacking in
literary, scientific, education, artistic, or political
value for minors and it has to be representative of nudity
or sexual conduct or sexual excitement or sado-masochistic
abuse.
Number 154
REP. GREEN inquired if there was a chance that because
certain areas of the state, or juries in certain areas of
the state, could render different opinions as to what is
offensive or not?
Number 181
MR. DOZIER responded he felt any tendency toward disparity
of treatment or disparity of result is alleviated by the
fact that this bill defines contemporary community standards
as contemporary standards prevailing in this state as a
whole.
Number 184
REP. PHILLIPS inquired as to whether this bill would be an
attempt to legislative morality that is perhaps something
that we couldn't put in writing in the form of legislation.
Number 196
CHAIRMAN PORTER remarked that we have had and currently have
laws against prostitution and that basically is a morality
issue, although it may be a health issue right now.
Number 210
REP. PHILLIPS expressed her concern that the first statement
of the bill that states that "the State of Alaska has a
compelling interest in protecting the morals of minors" and
she felt that would lead us to the conclusion that we are
trying to legislate morality.
Number 214
REP. KOTT responded that that statement would have to be
included per an earlier case to establish some commitment by
the state in the event a particular case was challenged
under this law.
Number 222
REP. DAVIDSON asked if someone was available to address the
constitutionality of such a proposal?
JERRY LUCKHAUPT, Legislative Legal Counsel, responded that
several jurisdictions have laws similar to this. Those laws
have been upheld in a number of cases. In the city of
Wichita; their ordinance is sort of the basis for this draft
before you now. That was based upon something that
Minneapolis has adopted. The municipality of Anchorage has
an ordinance like this also. As far as I know, those
statutes have not been struck down as being unconstitutional
at this point. As George Dozier indicated, the U.S. Supreme
Court in Ginsburg, which is a state of New York case, the
Court said the state has the authority to regulate materials
that are not necessarily obscene in regards to adults, but
could be considered to be deleterious to the health, safety
and morals of minors.
Number 336
REP. PHILLIPS inquired as to whether there have been any
challenges to the municipality of Anchorage law?
MR. LUCKHAUPT responded not that he has heard of. He
further remarked that a change made in the Labor & Commerce
Committee relating to the term "contemporary community
standards" and that they applied a statewide definition to
contemporary community standards. He stated that could be a
constitutional problem vis a vis the idea of what is obscene
or not. The Supreme Court looked at a contemporary
community standard and to the extent that the Court relied
on a local definition as to what those standards are that
the jury would apply and the prosecutor would apply in
deciding whether or not to prosecute a case. To the extent
we have a different definition of community standards and
that we apply one that is statewide, it could raise
constitutional questions.
Number 408
REP. GREEN asked how a statewide definition of community
standards would be established?
Number 414
MR. LUCKHAUPT responded that they would be established by
expert testimony between a prosecutor and a defense attorney
before a jury. Then the jury would render an opinion based
upon what their understanding of the state is.
Number 427
REP. KOTT asked, based on suggestion, information or
material on the front cover of Cosmopolitan, it would not
meet the test as defined in the Miller case, that taken as a
whole the material lacks serious, literary, scientific or
educational, artistical, or political value. So the cover
in itself would not essentially require that this material
be covered or not sold to minors?
Number 436
MR. LUCKHAUPT responded that in most cases that would be
true. He continued by saying that under this act we do
require things to be covered if the materials inside, if
they do describe things or materials that would lack this
value for minors, including some of the articles in
Cosmopolitan you could say lacked serious literary,
scientific, educational or political value for minors.
Combining that with the earlier definitions that they have
to depict nudity or sexual conduct or something like that,
in certain situations it could.
Number 472
REP. PHILLIPS remarked that if a municipal ordinance already
prohibits Cosmopolitan magazine from being put on display,
they have it covered now, that could bring up the difference
too that we are talking about, in some cases it could be
local ordinances that would prohibit this type of display of
material.
Number 476
REP. PORTER remarked that for clarification, when he
mentioned Cosmopolitan magazine, that very well could be the
policy of the store, not the law.
REP. JAMES inquired as to whether the reference to children
or to minors is two different things, and what are we
referring to, and children being children, say age 12 and
under, would be the most at risk? She remarked that we
don't take any responsibility ourselves, and thus should we
legislate what we should or shouldn't do for our children.
The issue to her is do we have, as a government, a right to
impose that upon the people without taking any
responsibility ourselves for what our children do?
Number 531
DANIELLA LOPER, Judiciary Committee Aide, inquired about the
Pope case and the fact that the Pope case came out after the
Miller case and inquired as to whether the standards for
community conduct, might pose a problem?
Number 540
MR. LUCKHAUPT responded that he was not familiar with the
Pope case.
Number 580
REP. KOTT remarked that discussion on this particular issue
has already been dealt with. He believed the Pope case
deals with the third prong, the tripartite test established
under Miller. We are not applying community standards with
the first (inaudible) in which community standards are dealt
with that was affirmed in the Miller case. Again, under
Jenkins v. Georgia, the Supreme Court said in their ruling
the Constitution does not require that juries be instructed
in state of society cases to apply the standards of a
hypothetical statewide community.
Number 604
MR. LUCKHAUPT again remarked that he had not read Pope.
Number 621
REP. DAVIDSON asked if Mr. Luckhaupt could address what is
considered a tougher free speech standard in Alaska's
Constitution compared to other states.
Number 625
MR. LUCKHAUPT responded that we have greater right to
privacy standard that exists. I'm not sure we have a
greater free speech standard that exists. The right to
privacy standard would enter into the possession of obscene
material by adults. I think there would be a distinction
here by the possession of material by minors.
Number 681
REP. KOTT remarked that the first amendment of the U.S.
Constitution says Congress shall make no law abridging the
freedom of speech and we do have a corresponding provision
in Alaska's constitution that provides the opportunity for a
person to speak or publish freely, but it does not provide
an opportunity to provide access freely to that information.
CHAIRMAN PORTER inquired as to whether there was a provision
that said that we would have to cover the material displayed
on a publication if there were descriptions that we would
find harmful within the publication descriptions?
Number 715
MR. LUCKHAUPT responded that if you display material which
is harmful to minors, and that includes the covers and
packaging of the material, in a place where minors are
present and able to view the material, not just the covers,
then each item of the material must be sealed in an opaque
wrapper or kept behind blinder racks. It doesn't matter if
the material harmful to minors is just on the cover.
Number 743
CHAIRMAN PORTER inquired as to why you would put an opaque
wrapper on material that is not offensive on its face?
Number 747
MR. LUCKHAUPT responded that on the cover of it, the
requirement of an opaque wrapper is that the juvenile can't
just open up the book and look at whatever the material is.
He further responded that on page 2, lines 14 - 18, the
reference in the legislation is to other than printed
material.
Number 777
REP. JAMES inquired as to whether music recordings and those
kinds of things are covered and where those items fit into
this discussion?
Number 786
MR. LUCKHAUPT responded that the definition of material on
page 3, lines 9 through 11 includes motion picture film,
record, compact disc, recording tape or video tape.
Number 790
REP. JAMES followed up by asking if a minor were to see a
display case with offensive material wrapped up, would that
be an enticement for them to just go look? What is to be
gained by that issue?
Number 810
MR. LUCKHAUPT responded that a little of that is what Labor
and Commerce Committee tried to deal with. That issue of
the tapes and video tapes, if its not on the cover, if the
material harmful to minors is not on the cover, if you don't
have a visual depiction of what is material that is harmful
to minors, then they don't have to cover that material up.
They still couldn't sell that material to a person under the
age of 18, to that extent, they will have to rely on some
representations from the manufacturer.
Number 838
CHAIRMAN PORTER remarked that there were a couple of issues;
one is that we are saying that "harmful to minors means any
description or representation in whatever form of these
things that fall under the three prong test" and that would
mean a verbal recitation in paragraph form of one of these
acts if it met all these tests. So, are we in effect
saying, that any bookstore open to the public, where they
have racks and racks of books, that one, if there is that
kind of paragraph inside the book, that they may not sell
that to a minor.
Number 850
MR. LUCKHAUPT responded that they may not sell that to a
minor, that would be correct.
Number 851
CHAIRMAN PORTER remarked that secondly, under legal's
interpretation, as this is worded, they would have to cover
that with a binder board or an opaque wrapper.
Number 854
MR. LUCKHAUPT responded that if the material is offered for
sale in a place where minors are present or allowed to be
present, then it would have to be kept behind a binder board
or opaque wrapper.
Number 860
REP. PHILLIPS stated on page 2, line 5, it only deals with
selling and she would like us to deal with renting of such
material also.
TAPE 94-54, SIDE A
Number 000
CHAIRMAN PORTER declared that HB 487 would be held in
committee and declared the House Judiciary Standing
Committee adjourned at 3:05 p.m.
BILLS NOT HEARD
SB 321: FINGERPRINTING AND CRIME RECORDS
| Document Name | Date/Time | Subjects |
|---|