02/23/2004 01:34 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 23, 2004
1:34 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 334
"An Act relating to unlawful exploitation of a minor."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
HOUSE BILL NO. 513
"An Act relating to the enforcement of support orders through
suspension of drivers' licenses; changing the name of the child
support enforcement agency to the child support services agency;
amending Rules 90.3 and 90.5, Alaska Rules of Civil Procedure;
and providing for an effective date."
- MOVED HB 513 OUT OF COMMITTEE
HOUSE BILL NO. 514
"An Act relating to child support modification and enforcement,
to the establishment of paternity by the child support
enforcement agency, and to the crimes of criminal nonsupport and
aiding the nonpayment of child support; amending Rule 90.3,
Alaska Rules of Civil Procedure; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 378
"An Act relating to the Alaska Food, Drug, and Cosmetic Act,
including sales, advertising, certain devices, food donors, and
food banks; making certain violations of organic food provisions
and of the Alaska Food, Drug, and Cosmetic Act unfair methods of
competition and unfair or deceptive acts or practices under
certain of the state's unfair trade practices and consumer
protection laws; and providing for an effective date."
- MOVED HB 378 OUT OF COMMITTEE
HOUSE BILL NO. 367
"An Act relating to the licensing and regulation of sex-oriented
businesses and sex-oriented business entertainers; relating to
protection of the safety and health of and to education of young
persons who perform in adult entertainment establishments; and
providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS COMMITTEE ACTION
BILL: HB 334
SHORT TITLE: UNLAWFUL EXPLOITATION OF MINOR
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/12/04 (H) PREFILE RELEASED 1/2/04
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) JUD
01/30/04 (H) JUD AT 1:00 PM CAPITOL 120
01/30/04 (H) <Bill Hearing Postponed>
02/20/04 (H) JUD AT 1:00 PM CAPITOL 120
02/20/04 (H) Scheduled But Not Heard
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 513
SHORT TITLE: CSED NAME CHANGE/DRIVER'S LIC.SUSPENSION
SPONSOR(S): REPRESENTATIVE(S) KOTT
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 514
SHORT TITLE: CHILD SUPPORT ENFORCEMENT/CRIMES
SPONSOR(S): REPRESENTATIVE(S) KOTT
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 378
SHORT TITLE: FOOD, DRUGS, COSMETICS, CERTAIN DEVICES
SPONSOR(S): FINANCE
01/12/04 (H) READ THE FIRST TIME - REFERRALS
01/12/04 (H) HES, JUD
02/05/04 (H) HES AT 3:00 PM CAPITOL 106
02/05/04 (H) Moved Out of Committee
02/05/04 (H) MINUTE(HES)
02/09/04 (H) HES RPT 2DP 1DNP 2NR
02/09/04 (H) DP: SEATON, WILSON; DNP: WOLF;
02/09/04 (H) NR: GATTO, COGHILL
02/09/04 (H) FIN REFERRAL ADDED AFTER JUD
02/23/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 334.
PATTY WARE, Director
Division of Juvenile Justice (DJJ)
Department of Health & Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 334, expressed the
division's opposition to an expansion of the automatic waiver
provision in AS 47.12 and suggested an amendment.
LINDA WILSON, Deputy Director
Public Defender Agency (PDA)
Department of Administration (DOA)
Anchorage, Alaska
POSITION STATEMENT: Expressed the PDA's concerns with HB 334;
expressed the PDA's concerns with HB 514.
REPRESENTATIVE PETE KOTT
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 513.
JOHN MAIN, Staff
to Representative Pete Kott
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 513 on
behalf of the sponsor, Representative Kott; presented HB 514 on
behalf of the sponsor, Representative Kott.
JOHN MALLONEE, Acting Director
Child Support Enforcement Division (CSED)
Department of Revenue (DOR)
Anchorage, Alaska
POSITION STATEMENT: Responded to questions during discussion of
HB 513; responded to questions during discussion of HB 514.
DIANE WENDLANDT, Chief Assistant Attorney General
Statewide Section Supervisor
Collections and Support Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 514 and answered questions
from the members.
CATHY SCHINDLER, Assistant Attorney General
Child Support Enforcement
Special Prosecutions Unit
Office of Special Prosecutions & Appeals
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Testified on HB 514 and answered questions
from the members.
STEVEN B. PORTER, Deputy Commissioner
Office of the Commissioner
Department of Revenue (DOR)
Juneau, Alaska
POSITION STATEMENT: Testified on HB 514 and answered questions
from the members.
WILLIAM TANDESKE, Commissioner
Department of Public Safety (DPS)
Juneau, Alaska
POSITION STATEMENT: Relayed concerns about HB 514, Section 9.
GERALDINE McINTOSH, Staff
to Representative William K. Williams
House Finance Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 378 on behalf of the sponsor,
the House Finance Committee.
KRISTIN RYAN, Director
Division of Environmental Health
Department of Environmental Conservation (DEC)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 378
and responded to questions.
ELISE HSIEH, Assistant Attorney General
Environmental Section
Civil Division (Anchorage)
Department of Law (DOL)
POSITION STATEMENT: Responded to questions during discussion of
HB 378.
CLYDE (ED) SNIFFEN, JR., Assistant Attorney General
Commercial/Fair Business Section
Civil Division (Anchorage)
Department of Law (DOL)
Anchorage, Alaska
POSITION STATEMENT: Assisted with the presentation of HB 378
and responded to questions.
ACTION NARRATIVE
TAPE 04-21, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:34 p.m. Representatives McGuire
Holm, Ogg, Samuels, and Gruenberg were present at the call to
order. Representatives Anderson and Gara arrived as the meeting
was in progress.
HB 334 - UNLAWFUL EXPLOITATION OF MINOR
Number 0072
CHAIR McGUIRE announced that the first order of business would
be, HOUSE BILL NO. 334, "An Act relating to unlawful
exploitation of a minor."
Number 0110
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
explained that HB 334 simply changes the crime of unlawful
exploitation of a minor from a class B felony to a class A
felony, adding that he feels it is his duty to convince the
House Judiciary Standing Committee that this is a necessary
change. For the purpose of disclosure, he relayed that he is
the father of two daughters and has served on the board of
directors of Standing Together Against Rape (STAR) for three
years.
REPRESENTATIVE MEYER went on to say that he believes that
explicit sexual material involving children is a very serious
crime, and has multiple effects on a child as he/she grows up on
into his/her adulthood. It can affect a child psychologically,
sociologically, and behaviorally. Another problem with the
production of child pornography is that even if the child is
able to mature and forget his/her past, there's still a
videotape and/or pictures out there, of this act, for as long as
that videotape and/or pictures exist. The production of child
pornography also puts the child in some very, very dangerous
situations, exposing him/her to sexually transmitted diseases,
rape, assault, and torture.
REPRESENTATIVE MEYER noted that there have been several cases in
Anchorage involving the production of child pornography, and
opined that it is more common than people want to believe. One
of the reasons for this, he offered, is that such crimes often
involve other crimes as well, and so the focus is directed
towards those other crimes. He said he believes that the crime
of exploitation of a minor needs to be raised to a class A
felony because those sentenced for a class B felony can get by
with a one- to four-year sentence. He pointed out that the
Department of Corrections has provided the committee with
statistical handouts regarding this particular crime; one
offender of this crime is serving two years. With "good
behavior," he remarked, that offender will be out of jail in
less than one year.
Number 0362
REPRESENTATIVE MEYER offered his understanding that the
difference between the crime of sexual abuse of a minor and that
of exploitation of a minor is that in cases of sexual abuse of a
minor, the perpetrator forces himself/herself onto the minor -
in essence, rape - and in cases of exploitation of a minor, the
perpetrator is asking a child or children to perform sexual acts
for the purpose of videotaping those acts or taking pictures of
those acts. What he is proposing, he relayed, is a [sentencing]
scheme wherein the crime of sexual abuse of a minor [in the
first degree] would remain an unclassified felony, the crime of
exploitation of a minor would become a class A felony, the crime
of distribution of child pornography would remain a class B
felony, and the crime of possession of child pornography would
remain a class C felony.
REPRESENTATIVE MEYER said he believes that the actual production
of child pornography is worse than the selling of it. Although
both are very bad, if it is not first produced, then there is
nothing to sell. He noted that under federal law, the
production of child pornography carries with it a minimum
sentence of [ten] years, and that under HB 334, the sentence
would be five years. Why not just rely on the federal law? The
reason is because federal law applies only in instances wherein
an interstate crime has occurred. In conclusion, he turned
members' attention to the accompanying fiscal notes.
REPRESENTATIVE SAMUELS noted that the crime of manslaughter is
currently a class A felony, the same as what is being proposed
for the production of child pornography. He asked whether the
crime of exploitation of a minor involves anything other than
the production of child pornography.
REPRESENTATIVE MEYER offered his belief that that's basically
all it involves. If, during the course of producing the child
pornography, the adult was sexually assaulting the child, then
the offender would face that charge as well.
CHAIR McGUIRE asked whether, for example, if a 14-year old and a
16-year old are in a consensual relationship and one of them
takes a picture of the other, that would be considered unlawful
exploitation of a minor.
REPRESENTATIVE MEYER offered his belief that it would not be, so
long as it was a consensual relationship. He added that the
minor has to be enticed in some way to perform these activities
for it to be considered unlawful exploitation of a minor.
Number 0812
PATTY WARE, Director, Division of Juvenile Justice (DJJ),
Department of Health & Social Services (DHSS), said that
although the DJJ strongly supports accountability with respect
to offenders, it is opposed to the expansion of the automatic
waiver provision, which would be one of the impacts of HB 334.
She elaborated:
It would result in expansion of the "auto-waiver"
provision currently contained in the delinquency
statutes, in [AS] 47.12.030, such that if a juvenile
is 16 or older, and this were to be class A felony, he
or she would be waived into the adult system. We've
prepared a brief summary sheet for the committee ...
[and], as you can see, we don't get very many of these
types of cases within the department. For the 10-year
period from [fiscal year 1994] FY 94 through current
to date FY 04, we had 15 juveniles charged with
unlawful exploitation of a minor in that ten-year
period, representing eight separate incidents.
As you can see, ... those cases that were referred
with other charges ultimately resulted in an
adjudication 100 percent of the time. I should note
that in some of those instances, the adjudication was
done at a later time for a charge that was
subsequently referred. Were this bill to have been
law, then in that 10-year period, 7 out of the total
15 juveniles referred to the [DJJ], or 47 percent of
the total referrals, would have been waived to the
adult system because they were 16 years or older at
the time of the alleged offense.
Again, the [DHSS] strongly supports accountability for
all of those folks who commit offenses, but we believe
strongly [that] we can address the issue of offender
accountability more appropriately in the juvenile
justice system [JJS] rather than having these
juveniles waived to the adult setting. I'd be happy
to answer any questions.
CHAIR McGUIRE asked Ms. Ware for suggestions on how to achieve
the sponsor's goal regarding adults without expanding the
automatic waiver provision in AS 47.12.
MS. WARE said that one option would be to propose an amendment
such that this particular charge is exempted from AS 47.12.030;
this would ensure that the current automatic waiver provision
would not be expanded.
REPRESENTATIVE OGG turned attention back to Chair McGuire's
example and asked Ms. Ware to comment.
Number 0999
MS. WARE said that according to her understanding, the behavior
in that type of example would fall under the purview of the
bill. Part of the difficulty within the DJJ is that such
behavior is what is most often seen; in other words, the
juveniles are very close in age and, although the behavior is
illegal and inappropriate, it is consensual, and so the DJJ has
a difficult time proving the case because the identified victim
won't testify. In response to a question, she repeated her
suggested amendment, adding that such an amendment would make
the crime of exploitation of a minor a class A felony for adults
without expanding the automatic waiver provision in AS
47.12.030.
CHAIR McGUIRE mentioned that committee staff would be working on
such an amendment, and noted that the committee has recently
been looking at the issue of benefits versus responsibilities
for young adults.
REPRESENTATIVE GRUENBERG remarked that in a juvenile setting,
under the current statutory language, the defendant would still
be guilty of the crime even if he/she is younger than the
alleged victim. He also noted that there could be circumstances
wherein one person is one day under the age of 18 while the
other person is one day over the age of 18. A class A felony
would be pretty steep for those in such a situation, he opined.
REPRESENTATIVE SAMUELS pointed out, however, that there could be
situations in which someone under the age of 18 is running, or
is an integral part of, an operation that produces child
pornography. He surmised that Ms. Ware's suggested amendment
would still allow for a waiver into adult court on a case-by-
case basis.
MS. WARE remarked that current statute already allows that. She
added, "It doesn't have to be in the "auto waiver" provision; if
we think a juvenile offense is serious enough, then we can
petition the court to have the juvenile [waived into adult
court]." In response to questions, she noted that the current
discretionary waiver provisions, which are located in AS
47.12.100, do not specify particular offenses, and offered that
her suggested amendment would maintain the status quo with
regard to discretionary waivers. "When a juvenile comes before
the department, ... we make a decision that is in the best
interest of the community as well as making sure that the
offender is held accountable," she added.
CHAIR McGUIRE indicated a preference for relying on the current
discretionary waiver provision, rather than expanding the
automatic waiver provision.
MS. WARE, in response to a question, said, "The [DHSS] does not
see any problem with the statute as it currently exists in terms
of its impact on the juveniles ... who are alleged to have
committed this crime."
Number 1468
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), said that although at first
glance HB 334 appears to be simple, upon further review of the
proposed change, it is not so simple. She referred to AS
11.81.250, which, she remarked, looks at the big picture, and
said:
Our state carefully crafted a classification scheme
for offenses, and that statute lays out the degree of
harm and the nature of offenses and why they are in
certain classifications. Of course unclassified is
for the worst. Class A is for offenses where it
involves conduct resulting in serious physical injury,
or substantial risk of serious physical injury, to a
person. ... I think that [it] would be helpful for the
committee to hear what kinds of offenses are class A
felonies.
[The] typical ones ... [would] be manslaughter;
assault in the first degree where somebody suffers
serious physical injury from a dangerous instrument;
attempted sexual assault in the first degree;
attempted [sexual] abuse of a minor in the first
degree; robbery in the first degree; arson in the
first degree; [and] misconduct involving weapons in
the first degree. That's just sort of an example of
some of the crimes that we as a criminal justice
system look to for that level of offense: serious
physical injury resulting.
Now, a class B felony, there's quite a few of them,
and the typical class B felony is for conduct that
results in less severe violence against a person than
a class A felony but still aggravated offenses against
the public administration and order or property
interests. So some typical [class] B felonies would
be criminal negligent homicide; assault in the second
degree; sexual assault in the second degree; [sexual]
abuse of a minor in the second degree; this offense as
it is now, unlawful exploitation of a minor, but also
some similar offenses that run with this are
distribution of child pornography. That's a class B
felony.
Number 1599
MS. WILSON continued:
Endangering the welfare of a child in the first degree
is a class B felony. Robbery in the second degree;
burglary in the first degree; arson in the second
degree; terroristic threatening in the first degree;
misconduct involving weapons in the second degree; and
there's probably about 15 more [class] B felony
offenses. So as you see from the listing, ... when
you specifically pull out one offense and put it in a
higher one, you mess with the whole system. And the
question is, do you really want to do that?
MS. WILSON referred to Ms. Ware's comments regarding automatic
waivers, and read portions of AS 11.41.455 to illustrate the
kinds of conduct it includes. She pointed out that for
sentencing purposes, a class A felony is significantly more
serious than a class B felony; for a class B felony, "you have a
range of zero to ten years, you have presumptive four years if
they're a second [time] offender." This means that generally
speaking, somewhere between one and four years will be the
sentence for a first offense, although if it is a serious case,
aggravators can be considered in order to raise the sentence.
In contrast, a class A felony carries with it a presumptive
sentence of five years; "that's where you start ... and you can
go up to twenty years." So a class A felony has much more
serious consequences. In the case of two consenting 17-year-
olds, while having sex might not be a crime, taking a picture in
that situation would be, and thus making it a class A felony,
which brings with it a presumptive sentence of five years,
certainly seems harsh, she remarked, "and it pulls this out of
this carefully crafted classification scheme.
MS. WILSON noted that distribution of child pornography is a
class B felony, but taking a picture will become a class A
felony under HB 334. In addition, associated with the offense
of exploitation of a minor are other crimes that can already be
prosecuted; for example, sexual abuse of a minor in the first
degree is an unclassified felony. In addition, sexual abuse of
minor in the second degree is a class B felony, and involve
actions that are as serious as the actions that HB 334 would
bump up to a class A felony. She offered that if the committee
really wants to target the older predator or pedophile who is
engaging in this type of activity with younger victims, then
perhaps altering the sexual abuse of a minor statutes might be a
better way to elevate the crime under more limited
circumstances.
Number 1798
MS. WILSON said that the PDA's experience is that not many such
cases are prosecuted, and surmised that this tends to reflect
the DJJ's comments regarding younger offenders. But there are
not many such cases involving older offenders either, and most
of those cases involve consensual situations in which someone
simply took a picture of someone else and one of them is just
over 18 years old and the other is just under 18 years old. She
pointed out that even if the committee were to create an
exception to the automatic waiver provision, the bill is still
"in the troubling world of [a class] A felony," adding that she
does not think that "this is as big of a problem [such] that we
need to pull this particular offense out."
MS. WILSON went on to say, "I am certainly not trying to
minimize the seriousness of this offense; certainly, it is a
serious offense and, ... many times, there are other offenses
that are prosecuted [at] the same level or worse for behavior
that sort of surrounds this." She also pointed out that there
are other statutory provisions that reference AS 11.41.455: AS
11.51.100, endangering the welfare of a child in the first
degree; AS 11.41.436, sexual abuse of a minor in the second
degree; and AS 11.61, distribution of child pornography. These
examples are all class B felonies. In conclusion, she said that
all of these statutes are intertwined and crafted so that the
levels of offenses fit within what was studied for a very long
time as to what level an offense should be, adding that to pull
"this one out" would be a mistake.
Number 1923
CHAIR McGUIRE appointed Representatives Samuels, Anderson, and
Gruenberg - with Representative Samuels as the chair - to a
subcommittee on HB 334. The subjects the subcommittee will
address are the exclusion of the automatic waiver and how
raising the crime to a class A felony will mesh with other
existing statutes.
REPRESENTATIVE GRUENBERG said he would strongly support making
it a serious crime to commercially and repeatedly engage in the
behavior listed in AS 11.41.455, and suggested that one way of
going about it would be to alter AS 11.61.125 - distribution of
child pornography - such that a second offense would be a class
A felony.
CHAIR McGUIRE posited that all on the committee understand the
kind of conduct the sponsor is attempting to address, and said
she hoped that the sponsor would work with the subcommittee to
address everyone's concerns.
REPRESENTATIVE MEYER agreed, adding that it is not his intention
to go after the 17-year-olds who might be taking pictures of
each other while engaging in consensual sex. He remarked that
he does not have a problem with Ms. Ware's suggested change,
adding that he is comforted by the fact that even with such an
amendment, a juvenile could be waived into adult court if the
situation warranted it. He offered his belief that a victim of
this crime must be enticed before even a class B felony can be
charged; therefore, those engaging in consensual sex would not
be affected by HB 334. He referred to handouts provided by the
Department of Corrections (DOC) and said he did not think that
youthful offenders are the problem.
REPRESENTATIVE MEYER opined that creating child pornography does
correlate with other crimes that are class A felonies, whereas
some class B felonies don't involve very serious crimes in
comparison to creating child pornography. He offered his belief
that in comparison to federal law, which carries a presumptive
sentence of ten years, current Alaska law is way behind, adding
that he feels it is appropriate to make the crime of
exploitation of a minor a class A felony because the sale of
child pornography, which is currently a class B felony, is not,
in his opinion, as bad as the production of it.
Number 2132
REPRESENTATIVE GARA pointed out, however, that although HB 334
addresses a very serious class of crime, the term enticing can
apply to behavior that is consensual. For example, in a
situation involving two 17-year-olds, one of them could say,
"Come on, I'd like to take your picture," and the other could
say no at first but then change his/her mind due to enticement
by the person asking. Therefore, enticement can be completely
consensual, he surmised. He went on to say that he is not
interested in changing the current law on this issue until he is
convinced that the application of the current law has been
resulting in injustice.
REPRESENTATIVE MEYER noted that in his opening remarks he'd made
reference to a perpetrator who is serving a two-year sentence
for the crime of exploitation of a minor and who could
potentially be out of jail in one year. And because the
sentence for a class B felony could be as low as one year, a
person being charged with the crime of exploitation of a minor
might only have to serve six months or less. "In my mind, what
you're doing to that minor by producing that child pornography
is long-lasting and there's always going to be a video or a
picture to remind that person of that [situation]; so, no, I
don't think the sentencing is proper at current," he added. In
response to a question, he relayed that he would provide the
committee with the facts of that case.
MS. WILSON, in response to questions regarding the current
sentencing scheme, said that a class B felony has a range of
zero to ten years and that first offenders generally get between
zero and four years. Those offenders with a prior conviction
face a presumptive sentence of four years. For a class A
felony, the sentencing range starts out with a presumptive
sentence of five years even for first time offenders, with the
maximum sentence being twenty years if, for example, there were
aggravators. For a class A felony, someone with a prior felony
conviction could get a presumptive sentence of ten years, and
someone with two prior felony convictions could get a
presumptive sentence of fifteen years for a third felony
offense.
MS. WILSON added that if one were to be convicted of a class B
felony for this crime under current statute, the facts of the
case could warrant mitigators or aggravators, and there are
approximately 30 or 31 aggravators. For example, one aggravator
would involve using a dangerous instrument during the crime. So
even if an offender was not facing a presumptive sentence, the
courts can currently look at the facts of the case and consider
aggravators for the purpose of increasing an offender's
sentence. She offered that in instances where the offender uses
drugs or alcohol to incapacitate a victim, that might qualify
for an additional charge of sexual abuse of a minor in the
second degree or of sexual assault.
TAPE 04-21, SIDE B
Number 2393
MS. WILSON, in response to further questions, said that in such
a situation, the offender could be charged with separate counts
and the sentences could be consecutive. Judges currently have
discretion over whether sentences run consecutively, though
there are some sexual offenses that have to run consecutively.
CHAIR McGUIRE announced that HB 334 would be held over for the
purpose of allowing the subcommittee to work on the issues
raised.
HB 513 - CSED NAME CHANGE/DRIVER'S LIC.SUSPENSION
Number 2342
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 513, "An Act relating to the enforcement of
support orders through suspension of drivers' licenses; changing
the name of the child support enforcement agency to the child
support services agency; amending Rules 90.3 and 90.5, Alaska
Rules of Civil Procedure; and providing for an effective date."
Number 2327
REPRESENTATIVE PETE KOTT, Alaska State Legislature, sponsor,
referred to HB 513 as an administrative bill and said that it
does two things. Within the Department of Revenue, HB 513
changes the name of "Child Support Enforcement Division" (CSED)
to "Child Support Services," and it closes what he termed a
loophole in the CSED's licensing program. He opined that the
name change is an important change in that the new name sends a
strong message to the public that the "we are here for the
kids," adding that a lot of states have either undergone or are
currently making such a change. He relayed that his staff,
former director of the CSED, John Main, would be assisting with
the presentation.
Number 2187
JOHN MAIN, Staff to Representative Pete Kott, Alaska State
Legislature, sponsor, said that the name change is intended to
foster the attitudes that "we're here to serve," and that [the
CSED] is an agency that does more than just enforce collection
of child support; "we do paternities, we do establishments, ...
[and we] work with employers." He, too, mentioned that several
states are looking at making such a name change. On the issue
of the aforementioned loophole, he said:
What that amounts to is that ... we have a period of
time in which we are able to ... [revoke] an
individual's driver's license; however, we have to
stop that process when that individual agrees to a
payment plan. The problem we run into is when the
person has agreed and then pays maybe one payment and
then stops again, we have to start all over with the
process again. [Instead] ... we would like to start
from when we stopped; that way, we [revoke] the
driver's license faster versus [allowing] an
individual ... [to] have as many as 300 days ...
before we would finally be able to pull their driver's
license. And [revoking] a driver's license is one of
the ways in which we're able to force people to come
to [the] table to pay child support and be responsible
for their children.
REPRESENTATIVE GARA said he wants to make sure that if someone
is mistakenly thought to have stopped paying child support, that
there is an inexpensive way for that person to challenge the
revocation process. He asked what happens to someone who is
paying child support but then the agency mistakenly comes to
believe that he/she has stopped paying.
MR. MAIN replied that normally, the agency only takes action
against someone's driver's license when he/she hasn't been
paying child support at all for some time. In response to a
further question, he indicated that there is an appeal process,
which can include going to court if the agency's initial review
of the situation produces a decision that the person disagrees
with.
REPRESENTATIVE GARA said that according to his interpretation of
the sponsor statement, it appears that a person would have to go
to court to stop the license revocation.
Number 2032
MR. MAIN said that is correct - the person would eventually have
to go through the courts to stop the revocation process.
REPRESENTATIVE GARA asked whether that would be the first step
or whether there is an administrative process first.
MR. MAIN replied:
This is the administrative process in which ... [the
CSED] is in the process of [revoking] their driver's
license. It takes up to 150 days in which to [revoke]
their driver's license. We give them a period of time
in which to respond back to us; ... we set up a
payment plan. This is not a quick process; it's a
very lengthy process, and it was designed to be a
lengthy process.
CHAIR McGUIRE asked for a hypothetical example showing how the
process currently works. She asked whether the driver's license
revocation process is begun on the basis of an amount of money
owed or on a length of time without a payment being made. She
added:
I think we all grasp the problem, which is that
someone comes in and says, "Okay, I've been out of
compliance - I agree to be on a payment plan," and
then within 30 days they fail to meet that requirement
again, and now the department's got to back through
those steps of revoking their driver's license.
Number 1952
JOHN MALLONEE, Acting Director, Child Support Enforcement
Division (CSED), Department of Revenue (DOR), said that the CSED
maintains a list of obligors who are not in substantial
compliance. Substantial compliance regarding a support order
payment schedule means that with respect to periodic payments
required under the support order or the negotiated payment
schedule, there are no arrears in an amount that is four times
the amount of the monthly obligation, or the person has been
determined by the court to be making the best effort possible.
Thus, for example, if the support obligation was $200 a month,
the arrears would have to be $800.
CHAIR McGUIRE asked for a hypothetical example showing how the
current license revocation process works in comparison to the
process proposed via HB 513.
MR. MALLONEE said:
Basically, what we do right now is ... we issue a ...
written notice of arrearage at least 60 days before we
place them on this list of people who are not in
substantial compliance. During that period they have
the ability to appeal ... on the statement of fact,
i.e. they are not the individual who owes the support
or the amount is not the amount that we say it is. ...
Once we do that, then they can get a 150-day temporary
license ... and only one temporary license can be
given at a time.
So they have that ability anytime, and this is where
this amendment [to current statute] comes into effect.
... [It's where] let's suppose that they make this one
payment - so now they have a payment agreement with us
[and] if they come in and make a payment agreement, we
take them off the list and we don't suspend their
license - if they cease to make this payment, say the
second or the third month, then we have to start over
again: we place them on the list and they have 60
days, we start the 150-day period all over in which
they can bring this current.
CHAIR McGUIRE said she sees the problem.
Number 1820
REPRESENTATIVE GARA asked if, during the 60-day window for
appealing the notice, the person can get the 150-day temporary
license while the appeal is pending.
MR. MALLONEE said yes, adding that the temporary license would
give the person the opportunity to bring his/her child support
payments back into substantial compliance.
REPRESENTATIVE GRUENBERG referred to Section 12 of HB 513, and
said he'd not ever seen such language in a bill before. He
suggested that the revisor of statutes and the regulations
attorney would normally do what is being proposed via Section
12, which is to make conforming amendments to the statutes and
administrative code. He asked that committee staff investigate
whether a letter of intent to the revisor of statutes and the
regulations attorney would be sufficient.
CHAIR McGUIRE posited that perhaps the language was included in
the bill for clarity.
REPRESENTATIVE GRUENBERG mentioned that it would be preferable
if the aforementioned individuals didn't have to wait another
year before making the conforming amendments.
CHAIR McGUIRE indicated that staff would also be looking to see
whether similar language was included in the legislation that
would change the name of the Department of Community & Economic
Development.
REPRESENTATIVE GRUENBERG, on another issue, said:
It looks to me like these changes you're making
concerning payment schedules, you're just doing some
technical changing around but you're going to keep the
practice of payment schedules in place, and this just
makes the same change with them as with court orders,
right?
MR. MAIN said, "I believe that's CSED's intent, yes."
Number 1671
REPRESENTATIVE ANDERSON asked how a person who's had his/her
driver's license revoked is expected to get back and forth to
work in order to earn the money to make child support payments.
MR. MAIN pointed out that driving is a privilege and that
driver's license revocation is mandated by the federal
government as one way of getting the attention of those who are
in arrears and not honoring their responsibility to their
children. The mandate does not involve requiring that people go
to work; the mandate involves requiring that people support
their children. How those people go about making their child
support payments is up to them, and thus it is their
responsibility to figure out how to get back and forth to work.
That being said, throughout the nation right now there are
several programs that help low-income parents meet their
obligations, such as busing programs and job-training programs,
he added.
REPRESENTATIVE ANDERSON said he agrees with the intent of the
bill and with getting rid of "perks" for people who don't pay
child support.
CHAIR McGUIRE surmised that what is being asked of a person is
that he/she contact the division and, if not pay off the amount
in arrears, at least create a payment schedule. She suggested
that HB 513 creates another incentive for people to come in and
pay and to, if setting up a payment schedule, be careful about
what they agree to so as not to default on that agreement.
MR. MAIN confirmed that the intent is to get those that are in
arrears to at least come to the table and discuss payment
schedules.
REPRESENTATIVE SAMUELS suggested that the people who will be
affected by HB 513 are those that have simply been refusing to
pay any child support, and indicated that he thinks taking away
those people's driver's license is a good idea.
MR. MAIN, in response to questions, said that the people the
bill is intended to affect are those that have the ability to
pay but simply aren't, and that most of those people are self-
employed in some fashion.
Number 1437
REPRESENTATIVE OGG asked why they are limiting license
revocation to driver's licenses. Why not also things like
commercial-fishing crewmember licenses, or why not also limit
someone's ability to practice law, dentistry, or medicine.
MR. MAIN said that driver's licenses are not the only things
being affected by the federal mandate requiring payment of child
support. The bill, however, is simply addressing what is
perceived to be a loophole in the process of revoking driver's
licenses; the process of revoking occupational licenses does not
have such a loophole. On the issue of crewmember licenses,
though, the problem there is that they are sold just like
hunting licenses and fishing licenses, and the Alaska Department
of Fish & Game (ADF&G) does not have a database similar to what
the Division of Motor Vehicles (DMV) has for driver's licenses;
"you won't find out a person has a crewmember license until
after the fishing season is completely over." In addition,
fishing permits are different than occupational licenses, he
relayed, and so the CSED has not been able to have the same
effect on permit holders as it does on occupational license
holders or driver's license holders.
CHAIR McGUIRE suggested to Representative Ogg that he work with
the CSED and investigate the possibility of tightening up those
"loopholes" as well.
REPRESENTATIVE GARA said he agrees with the policy that if one
does not pay one's child support, then driver's license
revocation is an appropriate penalty. He explained, however,
that he is concerned that those who are making a good faith
effort to pay but find themselves unable to pay, for a rational
reason, will have to go through an expensive court process to
stop the revocation. He asked whether someone who is given a
notice of arrears would still keep his/her driver's license
until the court hearing.
MR. MALLONEE replied:
Once we ... give notice, ... they have 60 days in
which to come and contest this. After we ... render a
decision saying, "No, we still think you're in
substantial noncompliance," [then] from that point ...
we're still not going to get rid of that driver's
license for 150 days. During that 150 days, they have
the opportunity to appeal to a court and ask for
expedited consideration. The problem that we then
have is that we're on the 149th day and we make a
payment agreement, and [if] they do not live up to
their payment agreement, we start off the next time
with the 60-day notice, doing another administrative
review, and starting the entire 150 days all over for
them to have the ability to ... ask for expedited
consideration from the court. What we're really
trying to do with [HB 513] is, if you say no, you're
not going to pay after you've made this agreement, ...
if we were on the 120th day, [then] we only want to
give you 30 more days in which to finish that up. You
either have to appeal to the court or we're going to
get rid of the license.
Number 1108
REPRESENTATIVE GARA said he understands the current process and
the problem. What he'd like to know, he remarked, is how things
would work under the proposed solution.
MR. MALLONEE said he envisions that what would occur under HB
513 is that when the person failed to make a payment as agreed
upon in the payment agreement, the CSED would send out a notice
informing that person that he/she is not living up to the
agreement. In the aforementioned example, that person would
then have 30 days in which to request, in writing, a review, and
the CSED would, in writing, inform the person of the its
findings. So the person would again have the ability to contest
a claim of noncompliance. In response to a further question, he
said that the person's driver's license is valid up until the
150th day, and that this is the case both currently and under HB
513; the only change the bill proposes to the current process is
to eliminate having to start counting the 150-day period from
the beginning.
MR. MAIN, in response to questions, confirmed his earlier
comments regarding crewmember, fishing, and hunting licenses,
and added that the question of whether it would be possible to
start revoking those types of licenses would be best answered by
the ADF&G. He also mentioned that revocation of private pilot
licenses is something that is not being done now because of
current Federal Aviation Administration (FAA) restrictions.
REPRESENTATIVE GRUENBERG suggested the possibility of the
legislature urging Congress, via a resolution, to pass a law
instructing the FAA to remove those restrictions.
MR. MAIN noted that in addition to those four types of licenses,
there are also various federal certificates and licenses that
the state has no control over, and when the issue of revoking
those certificates and licenses was raised with the Office of
Child Support Enforcement (OCSE), U.S. Department of Health and
Human Services (DHHS), the response was that it would not be
cost effective to pass a mandate requiring revocation of those
licenses and certificates.
REPRESENTATIVE GRUENBERG remarked, "For whom?" The children who
are not being supported or some government agency?
Number 0776
REPRESENTATIVE HOLM asked whether confiscating the vehicles of
those whose driver's licenses have been revoked could be another
option, since, he opined, without a driver's license, those
people don't need a vehicle.
MR. MALLONEE, on the issue of crewmember licenses, pilot
licenses, and other federal licenses and certificates, concurred
with Mr. Main that at this time, nothing can be done. He
mentioned that being able to revoke business licenses and
crewmember licenses might be useful as long any such revocation
program garnered results in terms of more child support payments
being made.
REPRESENTATIVE SAMUELS suggested that the Division of
Occupational Licensing would be able to provide a list of those
licenses that are now subject to revocation.
CHAIR McGUIRE after ascertaining that no one else wished to
testify and that representatives from the Department of Revenue,
the Department of Law, and the Division of Motor Vehicles were
available to answer questions, closed public testimony on HB
513.
Number 0528
REPRESENTATIVE SAMUELS moved to report HB 513 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, HB 513 was reported from the
House Judiciary Standing Committee.
HB 514 - CHILD SUPPORT ENFORCEMENT/CRIMES
Number 0501
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 514, "An Act relating to child support
modification and enforcement, to the establishment of paternity
by the child support enforcement agency, and to the crimes of
criminal nonsupport and aiding the nonpayment of child support;
amending Rule 90.3, Alaska Rules of Civil Procedure; and
providing for an effective date."
Number 0478
JOHN MAIN, Staff to Representative Pete Kott, Alaska State
Legislature, sponsor, presented HB 514 on behalf of the sponsor,
Representative Kott. He said that HB 514 has seven major
components to it. One element of the bill makes criminal
nonsupport a felony; 33 states already do the same, as does the
federal government. In order to be charged with a class C
felony for criminal nonsupport under HB 514, someone would have
to be over $10,000 in arrears or not have made a payment for
more than 24 months, and it must be shown that that person does
have the ability to pay. Currently, there are over 14,000 such
cases. This is not to say that all such persons should be
charged with a felony, he added, noting that the Child Support
Enforcement Division (CSED) only wants to go after the most
egregious cases such as those wherein the individual has had the
ability to pay for some time and has simply chosen not to pay.
MR. MAIN indicated that HB 514 establishes the crime of aiding
the nonpayment of child support in the first degree if one
assists the aforementioned class of people, and makes it a class
C felony. The current crime of aiding the nonpayment of child
support would become a crime in the second degree and would
still be class A misdemeanor. Mr. Main opined that the current
law regarding aiding the nonpayment of child support, which was
created by former representative Terry Martin, has had an effect
on people who [know] they are assisting somebody in escaping
child support payments.
MR. MAIN relayed that HB 514 gives the courts statutory
authority to require obligors to make payments on approved
payment plans, to seek work unless incapacitated, and to
complete and submit applications for a permanent fund dividend
(PFD). He explained that one judicial jurisdiction determined,
after being asked by the [CSED] to require such things, that it
did not need to comply. In response to a question, he indicated
that this change is in Section 7. He went on to say that
Section 8 of the bill gives the courts the authority to issue
administrative orders, court orders, requiring people to make
payments according to a payment plan unless incapacitated or
[otherwise] unable to work.
Number 0137
MR. MAIN explained that Section 9 of HB 514 has two components.
One component, subsection (f), allows CSED investigators to be
armed while performing their duty. Subsection (g) allows the
CSED to "settle" state debt without the assistance of the
Department of Law (DOL). Currently, the DOL performs this
service for the CSED, and the reason for the change is because
there is "so much debt out there"; on a national level, there is
$90 billion worth of debt, with Alaska being responsible for
$600 million of that - $300 million owed to custodial parents
and $300 million owed to the state and federal government. He
relayed that throughout the nation, states are struggling with
ways to contain and reduce this debt, so there are a variety of
programs being proposed, and one such program is "the
compromising of arrears." Under such a program, if a person is
not currently paying child support and owes in excess of $50,000
- or even $100,000 in some cases - he/she would be given the
opportunity to come back into society and fulfill his/her child
support obligations while having part of the debt reduced.
TAPE 04-22, SIDE A
Number 0001
MR. MAIN added that such would help such persons to reintegrate
with their families and start to repay their debt. He cited
several studies that indicate that if this process is
implemented, it works. These programs have accomplished as much
as a 25 percent success rate, Mr. Main added.
REPRESENTATIVE GRUENBERG asked if the $600 million figure is a
national figure.
MR. MAIN responded that $600 million is for the state of Alaska.
CHAIR McGUIRE commented that that is a staggering figure. She
asked Mr. Main what other states are doing about this problem.
MR. MAIN highlighted that Maryland, Colorado, and California
[have made changes to child support enforcement laws]. He added
that every state is looking at how to contain child support
arrearages and reduce them. Mr. Main said that the federal
government will be imposing some kind of requirement with
respect to the debt unless the states start reducing it. The
federal government even went as far as saying that if the states
do not collect the debt when compromising the arrears, then it
will not be necessary to pay the federal portion either.
REPRESENTATIVE GRUENBERG asked if the state gets 50 percent of
what is owed, for example, does the whole 50 percent go to the
federal government, or is it divided pro rata.
MR. MAIN replied that the state gives the federal government its
portion of what is collected. He pointed to Section 10 and told
members that presently there is a statute that prohibits the
Division of Child Support Enforcement from establishing child
support for victims of rape and incest. This section would
change the statute so that victims may ask for paternity to be
established and allow the agency to require that child support
be paid; however, the section ensures that the victim is not
victimized again, he added. He emphasized that the agency
cannot ask for child support without the consent of the victim.
MR. MAIN told members that the last portion of HB 514 would
adopt the federal changes to the modification regulation. He
explained that the CSED believed all along that it was doing the
modifications correctly based on what the federal government had
advised. However, this year the federal government advised the
CSED that the state misinterpreted the regulation, and directed
the division to do it differently. Mr. Main added that the
[language in Section 12] complies with the federal code.
REPRESENTATIVE OGG asked if HB 514 addresses the issue of
proving whether someone has the ability to pay.
MR. MAIN responded that the courts actually determined through
case law that [the ability to pay] had to be proven and
therefore it is not necessary to put that in statute.
REPRESENTATIVE OGG turned attention to page 2, line 5, and
suggested that "lawful excuse" should be inserted after the word
"failed". He added that this change would track with language
on [page 1, line 12] and would provide clarity.
MR. MAIN replied that he sees no problem with such a change.
Number 0476
REPRESENTATIVE SAMUELS moved to adopt the proposed committee
substitute (CS) for HB 514, Version 23-LS1639\I, Mischel,
2/14/04, as the work draft. There being no objection, Version
I, was before the committee.
Number 0509
REPRESENTATIVE OGG moved to adopt Amendment 1 as follows:
On page 2, line 5
After the word "failed"
Insert the words "without lawful excuse"
The committee took an at-ease from 3:20 p.m. to 3:21 p.m.
Number 551
REPRESENTATIVE OGG renewed his motion to adopt Amendment 1.
There being no objection, Amendment 1 was adopted.
REPRESENTATIVE GARA cautioned that the committee needs to be
clear about the reasons for putting someone in jail. Sections 2
and 3 deal with someone who fails to pay support without lawful
excuse, he said. He asked where the lawful excuses are listed.
MR. MAIN replied that he believes that lawful excuses are based
on court rulings. He said he does not believe it is in statute.
CHAIR McGUIRE asked Diane Wendlandt of the Department of Law if
the list of lawful excuses is based on statutory law or case
law.
Number 0647
DIANE WENDLANDT, Chief Assistant Attorney General, Statewide
Section Supervisor, Collections and Support Section, Civil
Division (Anchorage), Department of Law (DOL), referred the
question posed by Chair McGuire to Cathy Schindler, the
prosecutor who handles cases such as this.
Number 0667
CATHY SCHINDLER, Assistant Attorney General, Child Support
Enforcement, Special Prosecutions Unit, Office of Special
Prosecutions & Appeals, Department of Law (DOL), said that case
law addresses what is a lawful or unlawful excuse for non-
payment. The courts talk about whether a person has voluntarily
put himself or herself in a situation of non-employment or
under-employment. If a court finds that a person has
voluntarily entered either state, then that is found to be
without a lawful excuse, she said, adding that there is
discretion on the part of the court regarding anything that is
outside of that situation.
REPRESENTATIVE GARA asked what standard the courts would apply
in determining what is voluntarily under-employed.
MS. SCHINDLER replied that in criminal cases, that would be left
up to the jury.
REPRESENTATIVE GRUENBERG said that under-employed means that an
individual has the ability to obtain higher paying employment
that is available and the individual willing chooses not to
accept [that employment].
MS. SCHINDLER replied that is correct.
REPRESENTATIVE GARA posed a hypothetical example of a person who
is a doctor, but is fed up with that employment, and becomes a
teacher. If that person applies to lower their child support
payments [based on lower pay] and the order is denied, would
that be an example of an individual who is voluntarily under-
employed.
MS. SCHINDLER said that whenever there is a modification request
outside of the realm of the criminal court, that would be
handled in civil court. She relayed, however, that she is not
qualified to answer that question fully.
Number 0847
REPRESENTATIVE GRUENBERG commented that he believes [that in the
aforementioned example], the information would come up in a
criminal case if the defense were that the person could not
[provide child support at the level originally set] because the
defendant was voluntarily under-employed. He said it would be
the central issue and the judge would have to give legal
instruction to the jury regarding what is a lawful excuse for
"inability" [to pay child support]. It would definitely be part
of a criminal case if it becomes a crime in this manner, he
stated. He asked for Ms. Schindler to comment on this point.
MS. SCHINDLER responded that the court findings on the civil
modification would be something the prosecution may choose to
use as a supporting document in a criminal matter. She told the
members that Ms. Wendlandt can comment on the determination of
the modification.
MS. SCHINDLER, in response to questions, said that if there has
been a stipulation where a modification has been requested due
to unemployment or under-employment, then there will be judgment
in superior court where there will be findings. Those findings
will set forth the factual basis on which the modification is
granted or not granted, she explained. An administrative
hearing could also result in findings. Ms. Schindler said that
those findings will be part of the evidence potentially
presented by either side. The jury would be given instruction
that is fashioned around the controlling case law. She added
that the jury would make a determination on the findings, like
it does on any piece of evidence. The jury would make a
determination based on the veracity of the witness and the
evidence presented within the context of the jury instruction on
unemployment or under-employment, and whether or not the
elements of the statute have been met.
MS. WENDLANDT, on the issue of voluntary under-employment, said
that there have been a number of cases in the Alaska Supreme
Court on that issue in the civil context of what must be proven
to show voluntary under-employment. There is a two-part test in
that situation, she said. The first part is the question of
voluntary conduct; for example, was it something the parent
chose to do. The second part is the question of reasonableness.
In the hypothetical example posed by Representative Gara, the
question really comes down to: Was this a reasonable decision
given that the person has an obligation to the child? Sometimes
a person's decision to take a lower paying job is reasonable,
and other times it is not, she said. Ms. Wendlandt explained
that the courts have, through a whole series of cases, addressed
the issue of what is and is not reasonable. She indicated that
[such a determination] would be very factual.
Number 1123
REPRESENTATIVE GARA told members that he would be much more
comfortable with HB 514 if the standards were delineated within
criminal law to say under what circumstances a person would and
would not go to jail. He said he is not in agreement with the
practice of borrowing the "administrative law rules" on when
payment is owed and then translating those into a felony. He
said he is not sure if this works or not, and asked if the
members would want to come up with the elements of the crime.
For instance, he said, maybe the language could say, in order to
charge someone with a felony, this is what the crime
constitutes. He said that in order for him to be comfortable
with this language, the scenario would have to be something like
a person owes a child support arrearage, and intentionally
chooses not to pay it, even though the person can pay it. He
reiterated that he does not know the administrative standards
that are being "borrowed" for the purpose of becoming criminal
standards.
CHAIR McGUIRE commented that she does not know how all the
factual evidence could be incorporated into a standard. She
suggested Representative Gara work with Mr. Main on this subject
between now and the bill's next hearing. She said her
understanding is that in order for this to be considered a
felony, $10,000 or more must be owed, and that there would have
to be more than 24 months of non-payments.
MR. MAIN concurred.
CHAIR McGUIRE went on to say that many facts could come into a
case. For instance, someone could say that there is more than
$10,000 owed, but that the person has been employed as a teacher
because the individual did not enjoy being a doctor any more
because it was stressful, and at that point plead the case. She
said she does not believe that [kind of situation] is what the
division deals with in most cases. Chair McGuire said she would
like a representative from the CSED to speak to this. She
commented that she believes that most of these cases are people
that say, "I'm not going to pay, and do whatever you want to
me."
CHAIR McGUIRE noted that back in 1986 to 1989, there were only
15 nonsupport cases prosecuted. It was clear that there was a
problem, but then from 1990 to 2000, there have been no cases
prosecuted. She said that there is a lack of personnel and part
of it is that the Department of Law has a lot to consider when
deciding where to place their efforts. Misdemeanors have not
risen to the level of [high] priority. The federal government
recognized the problem in 1998 by raising the crime to the
felony level. She remarked that it must have gotten people's
attention because there were then over 4,600 cases reviewed,
over 580 arrests, over 450 convictions and civil adjudications,
and courts were ordered to pay over $18 million to kids that
were owed child support. In summary, she said that she supports
the bill the way it is, but would be willing to look at putting
specific elements in it.
Number 1312
REPRESENTATIVE GARA said that he does not disagree with Chair
McGuire, but urged the members to be very careful when entering
the area of criminal law. He added that when a net is cast too
wide, those that should be in jail, are put in jail, but those
for whom there was no intention of throwing in jail [could be
jailed as well]. He suggested that two standards be added to
the language that says the failure [to pay child support] is
intentional and unreasonable. He commented that juries are
always asked those two questions.
CHAIR McGUIRE posited that one option might be to add in the
elements of intentional and reasonable, and asked whether the
sponsor would be amenable to such a change to the bill.
REPRESENTATIVE GRUENBERG pointed out that the way the bill is
drafted now, it is an affirmative defense. If the law is
changed to make it an element of the crime, then the burden is
placed on the prosecution, he said. Representative Gruenberg
emphasized his belief that this law should remain as an
affirmative defense.
The committee took an at-ease from 3:35 p.m. to 3:50 p.m.
CHAIR McGUIRE announced that it is her intention to take public
testimony and then hold the bill over to allow members to
explore possible amendments.
Number 1492
LINDA WILSON, Deputy Director, Public Defender Agency (PDA),
Department of Administration (DOA), explained that she does not
have the CS or the sponsor statement in front of her, but she
saw the original bill and she submitted an indeterminate fiscal
note. She relayed that the PDA is concerned that there are
possibly 14,000 cases wherein a person could be prosecuted for
felony criminal nonsupport. These 14,000 cases meet the
standards of having more than $10,000 in arrearages or not
having payments made in over 24 months. She said that is a lot
of cases that will be raised to a felony. Ms. Wilson said that
the question of what a "lawful excuse" is would be considered in
the context of the criminal case. She said she does not have
any idea how many of those cases would become PDA cases, but
since the PDA represents indigents, her guess is that a fair
amount of those 14,000 cases will qualify for a public defender.
In conclusion, she said she believes that this bill will have a
fiscal impact on the PDA.
CHAIR McGUIRE told Ms. Wilson that she would be faxed a copy of
Version I so that she has an opportunity to review the bill
before its next hearing. Chair McGuire agreed with Ms. Wilson
that according to the sponsor statement there are 14,946 [child
support cases] having either arrearages greater than $10,000 or
having no payments made in over 24 months. The sponsor
statement explains, however, that not all of these cases would
qualify for nonsupport charges. She surmised that one point
that will be clarified is that there are other factors that come
into consideration beyond the amount that is owed and length of
time [since a payment was received]. She said that she would
like to see a comparison of the factors that the federal
government takes into [account], adding that she believes the
standard is similar [in HB 514]. She referred to the
intentional and reasonable factors considered in civil law, as
an example.
CHAIR McGUIRE commented that most of the information is in case
law which Legislative Legal and Research Services can provide to
the committee. In conclusion, she told Ms. Wilson that she
appreciates whatever suggestions the PDA has time to contribute,
and relayed that the committee also welcomes any suggestions
from Ms. Wendlandt.
REPRESENTATIVE GRUENBERG asked Ms. Wendlandt to provide the
committee with a written statement on the lawful excuse issue.
Number 1769
STEVEN B. PORTER, Deputy Commissioner, Office of the
Commissioner, Department of Revenue (DOR), told members that he
will walk through the bill section by section and provide the
department's position on each. He relayed that the department
appreciates the changes to Section 1 in Version I, where the
rebuttable presumption language was deleted. He asked, however,
whether, under Section 1, a person over the age of 18 could be
covered, adding that the DOL has drafted some language to
clarify that point and has provided it to the sponsor.
MR. PORTER said Sections 2 and 3 relate to criminal nonsupport.
The sponsor statement is very clear on this in that "there are
14,946 cases having arrearages greater than $10,000 or no
payments for 24 months or more." He explained that this means
that there are approximately that many people who are
technically felons. It is the DOR's intent, from an
implementation standpoint, he remarked, to only look at those
cases that are the most egregious cases, adding that if it were
the department's intent to prosecute all 14,000 [cases], there
would be several different groups [at this hearing]. He
emphasized that it is the department's intent to only look at
those very specific cases where it is important for the
department to make a statement and to identify those people who
should be prosecuted. Mr. Porter said there will probably be
between one-half dozen to a dozen cases pursued per year.
CHAIR McGUIRE asked Mr. Porter to elaborate on the factors that
would be considered in making the decision [to prosecute].
MR. PORTER replied that he would like to work with the CSED on
that question and get back to the committee later.
CHAIR McGUIRE commented that Mr. Porter has heard the concerns
of the committee and the wish to amend the language to specify
the factors which will be considered.
Number 1889
The committee took an at-ease from 4:02 p.m. to 4:03 p.m.
REPRESENTATIVE GRUENBERG referred to page 2, lines 15 through
17, which says:
In addition to the provisions of (c) and (d) of this
section, criminal nonsupport is punishable by loss or
restriction of a recreational license as provided in
AS 12.55.139.
REPRESENTATIVE GRUENBERG noted that AS 12.55.139 says:
Penalties for criminal nonsupport. In addition to
other penalties imposed for the offense of criminal
nonsupport under 11.51.120, the court may suspend,
restrict, or revoke for a period not to exceed six
months, a recreational license as defined in AS
09.50.020(c), if the defendant is a natural person.
REPRESENTATIVE GRUENBERG pointed out that if this bill makes
these acts a felony, then why shouldn't the department have the
authority to suspend a fishing license for more than six months.
MR. PORTER responded that such is a policy question and the
department would be willing to consider a change in that regard.
REPRESENTATIVE GRUENBERG commented that he might offer an
amendment to change that [language].
MR. PORTER noted that Sections 4, 5, and 6 relate directly to
the aiding and abetting statutes. Because there is less
information available with respect to what other states are
doing on this issue, the department does not have a position on
those sections, he stated.
CHAIR McGUIRE asked if aiding and abetting is currently a
misdemeanor.
MR. PORTER indicated that it is.
CHAIR McGUIRE said that according to her understanding, if a
person knows of another person's obligation [to pay] child
support and agrees, for example, to pay the person in cash so
that the income is not traceable, [that would be aiding and
abetting].
MR. PORTER replied that it also includes intentionally
withholding information about the residence or employment of an
individual.
Number 2036
JOHN MALLONEE, Acting Director, Child Support Enforcement
Division (CSED), Department of Revenue (DOR), said the original
statute for aiding and abetting was defined as assisting in the
avoidance of paying child support. This statute would apply to
any business or person who helps an individual to not pay child
support. He said he believes there have been three cases
prosecuted on that charge.
REPRESENTATIVE GRUENBERG turned attention to subsection (e) on
page 2, lines 15 through 17, and suggested that perhaps the
committee would want to consider taking away [driver's] licenses
too if these people are engaged in criminal activity. He also
said he believes the committee should look at adding a similar
provision to Sections 4 and 5, noting that other types of
licenses could be addressed as well, such as business licenses.
MR. PORTER noted that Section 7 provides the courts with the
statutory authority to order obligors who are eligible for
permanent fund dividends to file for them. He explained that
not all judicial jurisdictions believe that the CSED has the
authority to ask the courts to require that, and this section
would clarify that point. He noted that the department fully
supports such a change.
MR. PORTER noted that Section 8 deletes language referencing
three provisions of the statute: AS 47.07, AS 47.25.310, and
47.25.420. The department recommends that this reference be
retained because once it is deleted, the provision may be over-
inclusive, he said. He recommended that a section be added that
says "for a child whose parents have applied for services from
the agency under AS 25.27.100". He told members that this
suggested language has been provided to the sponsor.
MR. PORTER commented that with Section 9, subsection (f), it is
not the intent of the DOR to put its investigating officers at
risk or put them in a position where they are required to carry
weapons. If the investigating officer believes he/she is at
risk, the department would recommend that he/she call a state
trooper and not step into that risk environment. The department
recommends deleting subsection (f) from Section 9 of the bill,
he said.
MR. PORTER said that with respect to section 9(g) there is
approximately $587 million in arrears owed to the state. About
one half of that would go to the state, and one-half is owed to
the custodial parents, and this amount the division would not be
able to forgive. This section would allow the agency the
authority to negotiate and compromise the arrearages owed to the
state. The department has recommended that the division develop
a pilot program to do this with some oversight from the DOL. He
said that it would be necessary to have substantial oversight to
allow a single agency to compromise and negotiate the
arrearages. He said the greater the amount of latitude, the
greater the amount of oversight that should occur, either from
the DOL or from the commissioner of the DOR. The department
recommends some clarification on that particular provision, he
said.
MR. PORTER noted that Section 10 pertains to paternity in cases
of rape and incest, and said the department supports this
provision.
REPRESENTATIVE HOLM asked Mr. Porter why the word "shall" is
used in Section 11, page 5, and line 15.
MR. PORTER explained that the word "shall" is in current
statute, adding that the only change to that provision of
current law is the deletion of, "so entered", and he referred to
this change as a housekeeping measure. He went on to note that
Section 12 provides for the state to be in compliance with
federal law, and relayed that the department supports that
section.
Number 2320
WILLIAM TANDESKE, Commissioner, Department of Public Safety
(DPS), shared concerns about Section 9, subsection (f), of the
bill. Referring to subsections (f)(1) and (2), he deferred to
the Department of Law to discuss issues relating to limited
peace officer authority and deferred to the Division of Risk
Management [Department of Administration] to talk about real-
life consequences and liabilities pertaining to use of deadly
force while "operating under the color of office of the State of
Alaska."
COMMISSIONER TANDESKE noted that subsection (f)(1) says: "has
completed at some time a peace officer training academy program
approved by the commissioner of public safety". He said he
isn't sure whether that is meant to be training certified by
Alaska police standards or whether the commissioner would be
"looking back 18 years ago at a sheriff's academy in Arkansas."
TAPE 04-22, SIDE B
Number 2390
COMMISSIONER TANDESKE went on to say the academy isn't a
standard by which to judge anyone's ability and whether someone
should be armed. He said peace officers, by and large - and
certainly state troopers - are screened psychologically by use
of a polygraph and extensive background [checks]. In addition,
there is a field-training program for applying what has been
learned.
COMMISSIONER TANDESKE read from [subsection] (f)(2), which says
"has met annual firearms certification requirements that are
equivalent to those required by the Department of Public
Safety." He explained that he didn't know who in the Department
of Revenue would be capable of doing "this." Furthermore,
there's more to the use of deadly force than qualifying a
certain number of times a year. For example, there are issues
relating to "shooting decisions" training, commonly referred to
as "shoot, don't shoot interactive training." He emphasized the
importance of such decisions in determining whether someone will
make the correct judgments under stress.
COMMISSIONER TANDESKE pointed out that firearms are the last
option, and certainly not the only one. In the vast majority of
situations in which law enforcement [personnel] get involved, he
said, guns are a liability. They must be kept track of, for
example; he cited an example of a Kenai police officer who was
killed with his own gun. Noting that those are serious issues
and that a continuum of force isn't addressed in the bill, he
mentioned "presence, physical ability, cap-stun (ph), and
batons" as things to think about before ever pointing a gun at
someone. And who will be shot, a fleeing deadbeat dad?
Agreeing with the deputy commissioner that if an individual is
known to be difficult, then law enforcement [personnel] should
handle it, Commissioner Tandeske added, "The key to handling
these matters is the experience to handle them without using
force - not to rely on the fact that I happen to have a gun."
COMMISSIONER TANDESKE noted that the Division of Motor Vehicles
(DMV) gets aggravated people standing in line, for example. But
should [DMV personnel] be armed? He asked where the argument
[for being armed] would stop. He added that for the state and
the Department of Revenue, he believes it opens another door as
to what the policy will be. For example, will it relate to
personally owned guns or will the state buy the guns? Who will
ensure that the guns are in proper operating condition? What
kind of holsters should be used? What will the training
standards, rules of engagement, and use-of-force policy be? How
will it be tested and how often? Getting into the use of deadly
force will result in a state department's taking on a lot of
obligations, he said. It's not as simple as just having a gun.
COMMISSIONER TANDESKE closed by saying this isn't a "gun rights"
issue about carrying a gun on one's own time. Rather, this
relates to carrying a gun under the color of office,
representing the State of Alaska. From a public policy
standpoint, he suggested the question is whether or not to arm
folks who haven't been recruited and trained with the intent
that they act as peace officers. He added, "And if so, then
probably the whole process needs to be worked around."
Number 2200
CHAIR McGUIRE indicated that HB 514 [Version I, as amended]
would be held over.
HB 378 - FOOD, DRUGS, COSMETICS, CERTAIN DEVICES
Number 2199
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 378, "An Act relating to the Alaska Food,
Drug, and Cosmetic Act, including sales, advertising, certain
devices, food donors, and food banks; making certain violations
of organic food provisions and of the Alaska Food, Drug, and
Cosmetic Act unfair methods of competition and unfair or
deceptive acts or practices under certain of the state's unfair
trade practices and consumer protection laws; and providing for
an effective date."
Number 2166
GERALDINE McINTOSH, Staff to Representative William K. Williams,
House Finance Committee, Alaska State Legislature, said on
behalf of the House Finance Committee, sponsor, that HB 378 was
introduced at the request of the Department of Environmental
Conservation (DEC). Paraphrasing a portion of the sponsor
statement, she said HB 378 clarifies that a violation of the
label or advertisement provisions in AS 17.20, or a violation of
the representation requirement in AS 17.06 is an unfair or
deceptive trade practice under Alaska's statutes. This will
allow the attorney general's office to investigate labeling
violations that are not food safety or sanitation concerns.
Number 2104
KRISTIN RYAN, Director, Division of Environmental Health,
Department of Environmental Conservation (DEC), said that HB 378
would mostly impact the division's Food Safety & Sanitation
Program by making amendments to the Alaska Food, Drug, and
Cosmetic Act. She predicted that the biggest concern for the
committee will be "the concurrence of enforcing some aspects of
this statute by our staff or the consumer-protection attorney in
the [attorney general's office, Mr. Sniffen] ...." She
elaborated:
The situation has arose because we are often asked to
enforce laws that we don't have the expertise to
enforce. For example, if a product looks like it was
made in Alaska but it was not, we're asked, often, to
enforce our mislabeling statutes to make that an
unfair commerce practice, when that would most likely
fall under [Mr. Sniffen's] jurisdiction [rather] than
ours. So we wanted to make that an option through ...
revisions to these statutes.
REPRESENTATIVE HOLM asked whether "grown in Alaska" would also
fall under "this."
MS. RYAN said no, but remarked, "Organic labeling has been
added; at the very end of it you can see that they did include
the organic labeling, ... under [Title] 45, so that [Mr.
Sniffen] ... could enforce some organic labeling issues."
REPRESENTATIVE HOLM noted, however, that "grown in Alaska" would
not necessarily mean organic. Also, a "grown in Alaska" label
could be purchased if one has a growing operation in the state,
but this doesn't guarantee that a particular product was
actually grown in Alaska, for example, as might be the case with
cuttings. At what point can one say that something was actually
grown in Alaska. He added that "'grown organically' really is
not set in federal law yet." He asked Ms. Ryan to comment on
the issue of control.
MS. RYAN said that [the division] has not considered any aspects
of enforcing organic labeling. "At this point, we don't go down
that path; that's done by the Division of Agriculture [in the
Department of Natural Resources (DNR)], so I would defer to them
to respond to that question," she added. House Bill 378 only
impacts the DEC's ability to deal with food safety issues and
labeling.
Number 1987
REPRESENTATIVE HOLM indicated that an area of concern to him is
pesticide use, which is a food safety issue. He mentioned that
there have been cases wherein people that sold produce have had
fungus problems or insect problems and they have sprayed their
produce without proper notification.
MS. RYAN indicated that she would discuss this issue with the
Division of Agriculture, which is the division that oversees the
organic labeling and "grown in Alaska" programs. The DEC does
not deal with those aspects; instead, it deals with the food-
safety aspects of processing food, not raw products.
REPRESENTATIVE GARA turned attention to page 2 of HB 378, and
surmised that the training, testing, and certification
requirements could involve a lot of certificates. He indicated
that he might have an amendment to address the issue of cost.
Is this not too broad, he asked, to train, test, and certify
food handlers, waiters, cooks, and undercooks?
MS. RYAN replied:
Yes, those are significant aspects of the bill. And I
apologize for not drawing your attention to them, but
they've been addressed in the [House Health, Education
and Social Services Standing Committee], so we just
felt they weren't something that this committee would
be interested [in] learning about. But, yes, there
will be a significant impact to our ability to get
safe food by requiring individuals who handle food
that we're going to eat in public to become certified.
... So it's an essential component to a food safety
system that we're missing, that we've identified as
needing, to make sure that we're getting safe food in
the state.
How we're going to implement that ... is [via the]
regulation-drafting process, and we need the statutory
authority to get to that point, though, and that's
what this bill allows us to do. Who's going to pay
for these tests, which I think you were alluding to
and what your amendment is referring to, is again
something that ... we don't necessarily want to get
too involved in because I don't know how we would ever
maintain a database of who paid for what. But, again,
I still would defer that to a regulation-drafting
process as to how we will be implementing a training
and certification program for food workers across the
state.
Number 1792
REPRESENTATIVE SAMUELS asked Ms. Ryan to elaborate on the issues
of how many people she anticipates being tested, what the fiscal
note is, and whether there is statistical data showing that
there is a problem that needs fixing. He also asked whether
food sickness is rampant in restaurants in Alaska.
MS. RYAN mentioned that the written comments she'd provided the
committee contained a lot of background information illustrating
the need for the changes being proposed via HB 378. The fiscal
note is quite small, she opined, compared to the potential fee
generation that will occur; the funds requested varies by year,
with the first year including the initial investment in software
and hardware. The two positions detailed in the fiscal note
will cost approximately $200,000 per year. She said that the
problem the division has identified has come about a few ways:
One: yes, there is a problem with food-borne illness
in the state and in the nation. It's severely
underreported; it's not something you learn about. In
fact, the ratio of reporting versus non reporting is
25 to 1, so we learn about 1 case for every 25 that
exist. ... I am relying on CDC [Centers for Disease
Control and Prevention] for that statistic. In
Alaska, last year, we had 26 outbreaks - if you want
an Alaskan statistic - and of those 26, they vary
across the state as to where and what and how.
I can pull ... an example [from] Representative Ogg's
district .... You probably heard about Kodiak, it just
happened a couple of months ago, the ... taco meat had
salmonella in it and it was actually [an] antibiotic-
resistant strain. So we're really lucky no one died,
because we couldn't do anything to help them and over
50 people were sick; it was a potluck at a school.
So, you just don't hear about a lot of the problems
that occur and it's one of those safety nets that,
when it fails, you really hear about it, but you don't
really know about it when it's working decently.
Number 1683
CHAIR McGUIRE asked how the certification process would work for
circumstances involving potlucks.
MS. RYAN replied:
We have a temporary food service permit, which isn't
part of this system, that you're already required to
get if you have an event that's four days or longer;
that's how we break it out. So, a potluck, a one-
night deal, isn't a food-safety event, but if it goes
into four days or longer ... we do require you to come
in and get ... not our full-service permit, which is
... a little more extreme.
CHAIR McGUIRE surmised that the potluck situations might be the
problem area because those folks don't have training and don't
make their livelihood from food preparation, so they aren't
aware of safe storage, refrigeration, and cooking requirements.
MS. RYAN pointed out, however, that there are significant
problems in commercial food establishments. She elaborated:
We had a restaurant in Kenai that put 10 people in the
hospital and made probably about 300 people sick two
or three years ago; [we] closed the restaurant down.
... They're lucky no one died as well. So, it's not
just a private home (indisc. - coughing) problem, and
as [an] agency responsible for regulating services
[provided] to the public, that's my focus. ... I want
to make sure that the food that I go get at [the]
store or that my neighbor ... gets at the restaurant
is safe, because people have a perception [that]
government's protecting them in those environments.
At the potluck, at the church social, you're supposed
to be "buyer beware"; you're supposed know ... or at
least be confident ... that the people preparing your
food for you are doing it correctly.
CHAIR McGUIRE mentioned that at one time she'd sat on a finance
subcommittee on a DEC overview with Representative Williams,
who'd previously suffered from a case of botulism, and the
subcommittee spent most of its time discussing food safety,
inspections, and licensing issues. She asked Ms. Ryan to
explain to the committee how she thinks HB 378 will address the
problem better than previous attempts.
Number 1567
MS. RYAN replied:
We did take a cut of $500,000, again, from this
program; this program has been traditionally under
attack quite a bit from various members, but last year
we took a cut of $500,000 and eliminated 6 inspector's
positions. That left me with 18 inspectors and
probably 5,000 establishments. So I was left with a
position of trying to come up with a way to make sure
that these 5,000 establishments are doing it right.
Even before then, we were only getting in our high-
risk facilities once a year 60 percent of the time.
That, to me, is misleading to the general public
because they have the perception that we're at least
in there a lot more often than we were, and that ...
their shoulders were being looked over to make sure
they were washing their hands and keeping their meat
separate from their vegetables. So ... staff came
together - all 32 of them ... if you look at the whole
program including seafood processors - and came up
with Active Managerial Control, which is our new model
that uses the training and certification aspect in
this bill, as well as civil fines, to complete the
whole food-safety network picture.
This takes the reliance off government inspections and
puts the responsibility on the owners and the
operators of establishments: the people that are
serving you food 365 days a year. We aren't in there
enough; they're the ones that are going to be
responsible for doing it correctly, not us. So that's
why ... Representative Williams is willing to sponsor
this bill [via the House Finance Committee] now,
because he does feel that we have listened and have
come up with something that will work across the state
and be equitable, and you'll be just as safe in
Wrangell as you are in Nome as you are in Anchorage.
Number 1489
REPRESENTATIVE GARA said he is worried that the solution as
outlined on page 2, lines 5-8, is broader than the problem. He
elaborated:
You're asking us to trust that the agency will deal
with this responsibly and narrowly, but if we're
giving you really, really, really broad authority, I
think we should assume that you're going to do as bad
a job as we're telling you you're allowed to do. And
I'm wondering whether, to be consistent with your
theory of ownership and managerial control, maybe we
just certify and train the owners and managers, and
it's up to them to train their employees, and if they
don't, they know what their fines are. Maybe that's a
way. What would you think about doing it that way?
MS. RYAN replied:
Obviously, we would prefer to have the flexibility to
address that issue in the regulation-drafting process.
... At this point, we're proposing to train and
certify both food handlers and ... one manager per
establishment. If that's what we end up with after
the regulation-drafting process, ... [then] we
communicate [that] with communities and constituents
...; that will be determined down the road. But I
would like the flexibility, at this point, to have
that option ... after we interact with our
constituents.
We did do one survey - that's in my [written]
testimony - I think it was 321 respondents of our
permit holders, and 90 percent of them said that food
handler certification ... is what would be necessary
for a safe food system, and then an additional 80
percent said a manager certification would be as well.
... And when we look at what other state's do and what
our constituents are telling us through this survey,
it makes sense that we have the option to do both -
that that's necessary for a complete system.
REPRESENTATIVE GARA said he could not believe that a food
handler in a McDonald's in New York or San Francisco is licensed
and trained. He asked Ms. Ryan whether she has a sense of how
it's done in the majority of other places.
MS. RYAN explained that most food handlers in other states are
licensed and trained. She relayed that when she was sixteen and
working at McDonald's in Oregon, she had to get a food-handler
card from a state agency. "It's very common to have a food-
handler card; most states do use that," she added.
Number 1358
REPRESENTATIVE HOLM asked who would certify the trainers and to
what degree would that person be trained.
MS. RYAN indicated that the division does not yet have that
aspect fleshed out, adding that the bill would grant the
division the statutory authority to draft regulations. And
although the division does have some ideas, those ideas haven't
yet been vetted through the public process.
REPRESENTATIVE HOLM opined that it would be inappropriate for
the legislature to grant the statutory authority without first
having an idea of what methodology would be used by the division
to carry out its goals. "I worry about creating a bureaucracy
that doesn't have some constraints on it," he added.
MS. RYAN said she would be happy to share with the committee
more details of what the division will be proposing in terms of
methodology, though the division is not yet sure what the end
result be. She elaborated:
What we propose, in Active Managerial Control, is we
would have two tiers of certification required. You'd
have the food-handler ... card that the food handler
would have to get. Now, that training would be free
and online - and it's part of the database that we
would purchase with this funding - so anybody could go
in and go through the training for free. There would
be no certification of trainers, necessarily, although
CHARR [Cabaret Hotel Restaurant & Retailers
Association], a restaurant association, has come
forward and asked for the ability to be certified as
trainers because they provide that service. So that's
one avenue we're looking into. The manager's
certification is a national accreditation program that
five companies have been accredited from a national
food-safety network to provide. So those are the
models that we're considering, ... I'm just hesitant
to say that's how it will end up ....
Number 1211
REPRESENTATIVE HOLM said that explanation helps him a lot. He
then asked what the qualifications are of the division's
remaining 18 inspectors.
MS. RYAN replied:
They have pretty stringent requirements. They are
called ... "environmental health officers." [That's]
the actual title that they're given in state
government, and they're sanitarians. Most of them are
accredited through a national sanitation program, but
they all have some fundamental sanitation training
through a college degree.
REPRESENTATIVE HOLM asked what gives environmental health
officers the ability to understand the food industry such that
they would know whether someone was doing something improperly.
MS. RYAN replied:
In the United States, for the last 100 years, we've
had a food-safety system that's relied on inspectors
going into processing plants and restaurants to make
sure they're doing things correctly. There's
standards set by CDC; there's five risks that we're
always looking for, to make sure that there's not a
potential for sickness. It's a very standardized
field. ... We know what you can do to do things right
and what you have to do to keep people from getting
sick. It's not rocket science ...; it's not simple,
either, but it's very standardized across the U.S.,
and ... internationally as well, what you look for to
make sure people are handling food safely. You don't
put [a vegetable] ... on the cutting board that you
had ... [meat] on. You don't put raw meat in the
[refrigerator] above something that it can drip onto.
... There's pretty simple guidelines that everyone is
supposed to adhere to that are even in nationally
accredited CDC's ...
REPRESENTATIVE HOLM interjected to say that he appreciates
having that information. He mentioned that California has a
system whereby restaurants are given tags that reflect the food-
safety standards that they meet. He asked whether something
similar could be done in Alaska.
Number 1011
MS. RYAN replied:
The difficulty we have with that system is [that] it
relies on a government inspection. If we're not in
there [but] only once a year, if that, I don't know if
that's an assurance that they're still [maintaining a
high rating]. That [rating] is only as good as the
last inspection, and if we're not in there frequently
enough, it's difficult to rely on that. We used to do
that ... and some communities still do .... That's a
difficult thing to implement when you're not in there
enough.
REPRESENTATIVE GRUENBERG asked whether the division can delegate
its authority to a municipality.
MS. RYAN said yes, adding that it has done so with Anchorage.
REPRESENTATIVE GRUENBERG turned attention to the language,
"individuals who handle ... food" on page 2, line 6. He asked
whether this includes those who serve food.
MS. RYAN indicated that the intent is to include anyone who
handles unpackaged food; thus food servers would be included.
The bill's current language would allow the flexibility to make
that distinction in regulation.
REPRESENTATIVE GRUENBERG turned attention to Sections 3 and 5,
and asked Ms. Ryan whether she'd like to have Section 5 amended
to allow the Department of Health and Social Services (DHSS) the
ability to impose fines for violations of those items listed in
Section 3.
MS. RYAN said she could not answer for the DHSS. She added,
however, that the DHSS is familiar with the bill, has attached a
zero fiscal note, and has not expressed an interest in acquiring
the authority to impose civil fines. In response to a further
question, she said that the DEC would not object to such an
amendment.
REPRESENTATIVE GRUENBERG turned attention to Section 11, and
noted that certain language is being deleted from existing
statute. This language, he remarked, appears to give certain
due-process rights to people who are accused of violations.
MS. RYAN said that the language being deleted is duplicative
because existing due-process statutes already [contain this
language], and having this language in this portion of statute
has caused delay in enforcement actions.
Number 0748
ELISE HSIEH, Assistant Attorney General, Environmental Section,
Civil Division (Anchorage), Department of Law (DOL), confirmed
that there already are due-process statutes that would apply.
REPRESENTATIVE GRUENBERG turned attention to Section 14 and
asked why July 1, 2004, was chosen as the effective date.
MS. RYAN relayed that having an effective date which coincides
with the fiscal year would make it easier to determine when
funding would be available.
REPRESENTATIVE GRUENBERG turned attention to Amendment 1,
labeled 23-LS1473\A.1, Bannister, 2/20/04, which read:
Page 5, following line 23:
Insert a new bill section to read:
"* Sec. 11. AS 17.20 is amended by adding a new
section to read:
Sec. 17.20.355. Certification costs. A person
who has an employee who is subject in the course of
the employment to the certification requirements
adopted by the commissioner under AS 17.20.005(1)(D)
shall pay the costs that are necessary for the
employee to meet the certification requirements. The
employer may not require the employee to reimburse the
employer for these payments."
Renumber the following bill sections accordingly.
MS. RYAN, in response to questions, said that Amendment 1
appears to address who would be required to pay for the testing
required by Section 1, whereas the [bill] itself only gives the
DHSS the ability to require the testing. Currently, the DHSS
does not have the authority to charge fees for the training and
certification proposed in Section 1 because it does not yet have
the authority to require that training and certification.
Additionally, because the DHSS already has the authority to
charge fees for services, once the department is given the
authority to require training, it will automatically have the
authority to charge fees for that service.
Number 0513
MS. RYAN, in response to further questions, said that currently,
the proposed plan for food handlers is to follow the model used
in the state of Washington. This would involve online training
that would take approximately half an hour to go through.
However, it would not be mandatory that someone complete that
online training, but it would be mandatory to take the test. In
other words, the training would be available and free, but not
required; thus, if someone came from another state and already
knew the information, he/she could simply go online and take the
test, which, she estimated, could take five minutes. Upon
completion of that five-minute test, for which the division is
proposing charging a $10 fee, a food-handler card would be
issued that would be good for three years.
MS. RYAN noted that HB 378 would not affect seafood processors,
which are already under stricter requirements. With regard to
the bill's effective date, she explained that the division does
not anticipate having the certification requirements in effect
until a year from when the regulations authorized by the bill
become effective. The effective date in the bill pertains to
when the division can start the regulation-drafting process and
begin purchasing the needed software and hardware.
REPRESENTATIVE SAMUELS asked how the division intends to measure
whether HB 378 has been effective.
MS. RYAN replied:
That's a very difficult question and a problem we deal
with constantly in public health because you cannot
measure the effectiveness of your program because no
one is getting sick or dying - that's what you would
count. And, because of the [aforementioned under-
reporting], it's impossible for us to really have a
good indication of how effective we're being [in]
keeping people safe. What we can measure is
inspection scores, we can measure the cleanliness we
find when we go into establishments, and that's the
mechanism and the tools we'll be using as a
performance measure, which is part of our budget
process for the department and the food safety
program.
Number 0212
CHAIR McGUIRE pondered whether, for incidents like the one that
occurred in Kenai, it would be helpful to establish a review
team to perform an investigation.
MS. RYAN said that national studies have shown that restaurants
with certified workers actually have cleaner establishments than
those that do not have certified workers. There has been some
basic science done to show what's necessary and how to get those
necessary components implemented. And although on a broader
statewide scale it is hard to make an assessment regarding
effectiveness, the division has always relied on the number of
critical violations it finds in an establishment to make that
assessment. If a program is being effective, it should find
fewer critical violations, which are those that have the
potential of making someone sick.
CHAIR McGUIRE noted that on a statewide scale, there is nothing
currently in place to ensure that establishments are operating
in a safe manner, and surmised that HB 378 will go a long way
toward helping the division meet its goals. "People die from
food-borne illnesses; this isn't just a matter of feeling sick
for 24 hours," she added.
TAPE 04-23, SIDE A
Number 0001
CLYDE (ED) SNIFFEN, JR., Assistant Attorney General,
Commercial/Fair Business Section, Civil Division (Anchorage),
Department of Law (DOL), indicated that one aspect of HB 378
impacts the DOL's Commercial/Fair Business Section regarding its
ability to enforce and take action against people who are
engaging in consumer deception with respect to the labeling of
food products. He elaborated:
It's an area that we had some concern about last year
and, currently, the way our statutes are structured,
we are unable to take action in that area because [the
DEC] statutes give them the exclusive authority to do
that. And the amendments to (indisc.) statute, as
reflected in this bill, essentially give [the DOL] the
authority to investigate and take action against folks
who mislabel products. And it's not our intent to
tread on the DEC's expertise when it comes to food-
safety issues; we are thinking that this authority
would allow us to investigate and review only those
things that have consumer deception ... impacts. So,
with that, I'd be happy to answer any questions from
the committee, and thank you [Chair McGuire].
MR. SNIFFEN, in response to questions, said that the DOL has
submitted a zero fiscal note because it does not anticipate many
such cases to come up on an annual basis and so will just absorb
any extra enforcement costs, and that the DOL would have no
objection to an amendment giving the DHSS the ability to impose
civil fines for violation of those items under its purview that
are listed in HB 378.
Number 0263
MS. RYAN noted that Ms. Hsieh, in reviewing HB 378, worked with
the DHSS and so may know why the DHSS did not request that
ability.
MS. HSIEH said that according to her recollection, the DHSS had
no interest in such a change, particularly since the Food and
Drug Administration (FDA) takes over most of that type of
enforcement. She also noted, however, that the language in
subsection (b) of proposed AS 17.20.315 currently says, "the
department shall, by regulation, adopt a schedule of fines".
Therefore, if an amendment such as Representative Gruenberg was
suggesting were to pass, it would require the DHSS to promulgate
regulations, and so the committee may wish to weigh in with the
DHSS to see if it would really be interested in such a change.
REPRESENTATIVE GRUENBERG said that he did not want to hold the
bill up, and asked Ms. Hsieh for her thoughts on how it might be
best to proceed with such an amendment.
MS. HSIEH again suggested that the committee check with the DHSS
about such an amendment before offering it.
REPRESENTATIVE GRUENBERG relayed that he would not be offering
such an amendment at this time.
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 378.
Number 0403
REPRESENTATIVE GARA made a motion to adopt Amendment 1 [text
previously provided].
Number 0414
CHAIR McGUIRE objected.
REPRESENTATIVE GARA said he is still very uncomfortable with the
language on page 2 that could conceivable require thousands of
people in Alaska to get trained, tested, and certified, and thus
be charged testing fees - perhaps expensive testing fees. He
said that Amendment 1 would ensure that businesses absorb the
cost of the testing fees. Additionally, he noted, if it is the
businesses that are bearing the burden of the proposed
requirements and fees, then they will be more likely than
individual workers will be to ensure that such requirements and
fees do not become unreasonable. Amendment 1 would indirectly
ensure that the proposed requirements stay as narrow as possible
and be fair to low-wage workers. He asked members to support
Amendment 1.
MS. RYAN said she did not know how the division would ever be
able to track who actually pays the testing fee.
REPRESENTATIVE GARA offered his belief that the DEC's would not
have to undertake that burden; "presumably the employee would go
to the employer, ask for compensation, [and] that would, in
almost every case, be the end of it." Should a dispute on this
issue arise, it could be settled in small claims court. He
added, "I think employers would just end up paying for it, and
we wouldn't have to worry about enforcement because they would
just follow the law probably."
REPRESENTATIVE SAMUELS said, "I think the employer is going to
pay for it anyway," and noted that if an employee obtains a
food-handler card, which would be good for three years, he/she
then has a marketable skill. He likened Amendment 1 to putting
in statute a requirement that employers pay for uniforms. He
suggested that the question of who pays for the testing is
something to be worked out between employer and employee. He
said that he would be opposing Amendment 1.
Number 0630
REPRESENTATIVE GRUENBERG offered what he termed a friendly
conceptual amendment to Amendment 1 such that it would not
require the DEC to do anything.
REPRESENTATIVE GARA said, "Sure."
Number 0645
CHAIR McGUIRE noted that no one objected to the conceptual
amendment to Amendment 1. Therefore, Amendment 1 was amended.
REPRESENTATIVE GARA predicted that the DEC would have the
authority to come up with whatever regulations it wants in order
to implement "it." He reiterated his earlier comments regarding
how he envisions Amendment 1, as amended, would work. The
really good employers will absorb the cost to begin with, but
those who are not good employers might need to be told to do so,
he remarked, and opined that such an additional provision will
be easily enforceable. In response to a question, he said his
fear is that people who work for only $7 per hour and only work
10 hours a week will have to pay $10 for a card that allows them
to hold that job.
MS. RYAN said she agrees with Representative Samuels's comments,
adding that other states leave it to the employer and employee
to figure out who pays for the testing.
REPRESENTATIVE HOLM said that he, too, agrees with
Representative Samuels, adding, "This is no different than
requiring a driver's license, or any other requirement for
somebody to go to work." He indicated that he thinks Amendment
1, as amended, is unnecessary.
REPRESENTATIVE GRUENBERG said that although he felt that it
would not be appropriate, as an employer, to be asked to pay the
cost of someone's driver's license, he does feel that it would
be fair to ask the employer to pay the cost of an employee's
food-handler card.
CHAIR McGUIRE said she tends to agree with Representatives
Samuels and Holm. If a potential employee does not want to pay
the fee for testing, then he/she will not apply for those jobs,
which could ultimately result in a shortage of workers which in
turn could cause employers to agree to pay the cost. "I don't
know that we need to legislate these types of relationships,"
she concluded.
MS. RYAN, in response to comments, reiterated that the training
will be free, but the test will cost $10.
REPRESENTATIVE GARA said that "this" is completely unlike a
driver's license; a driver's license is generally obtained for
oneself, whereas a food-handler card would be obtained largely
for the employer. "That's why I think the employer should pay,"
he concluded.
CHAIR McGUIRE said, "We would hope that [the DEC] would continue
to recognize that we're delegating a tremendous amount of power,
and that we hope that you keep those costs down as low as
possible and commiserate with the types of responsibilities that
you need to have ... to ensure food safety."
Number 1056
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 1, as amended. Representatives
Holm, Samuels, and McGuire voted against it. Therefore,
Amendment 1, as amended, failed by a vote of 2-3.
Number 1064
REPRESENTATIVE SAMUELS moved to report HB 378 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 378 was reported from the
House Judiciary Standing Committee.
ADJOURNMENT
Number 1070
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 5:25 p.m.
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