Legislature(1997 - 1998)
04/23/1997 03:27 PM House L&C
| Audio | Topic |
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE LABOR AND COMMERCE STANDING COMMITTEE
April 23, 1997
3:27 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chairman
Representative John Cowdery, Vice Chairman
Representative Bill Hudson
Representative Jerry Sanders
Representative Joe Ryan
Representative Tom Brice
Representative Gene Kubina
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 116
"An Act relating to workers' compensation self-insurance."
- MOVED CSHB 116(L&C) OUT OF COMMITTEE
* HOUSE BILL NO. 192
"An Act regulating chemical dependency counselors; and providing
for an effective date."
- HEARD AND HELD; ASSIGNED TO SUBCOMMITTEE
* HOUSE BILL NO. 203
"An Act relating to actions for unlawful trade practices."
- HEARD AND HELD
HOUSE BILL NO. 218
"An Act relating to regulation and examination of insurers and
insurance agents; relating to kinds of insurance; relating to
payment of insurance taxes and to required insurance reserves;
relating to insurance policies; relating to regulation of capital,
surplus, and investments by insurers; relating to hospital and
medical service corporations; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
HOUSE BILL NO. 136
"An Act relating to the regulation of physical therapists and
physical therapy assistants; extending the termination date of the
State Physical Therapy and Occupational Therapy Board; and
providing for an effective date."
- BILL CANCELLED
(* First public hearing)
PREVIOUS ACTION
BILL: HB 116
SHORT TITLE: WORKERS COMPENSATION SELF-INSURANCE GROUP
SPONSOR(S): REPRESENTATIVE(S) KOTT, Hudson, Foster, Berkowitz,
Hodgins, Kelly, Dyson, Davis, Phillips, Kohring, Ogan, Green, Elton
JRN-DATE JRN-PG ACTION
02/05/97 243 (H) READ THE FIRST TIME - REFERRAL(S)
02/05/97 243 (H) LABOR & COMMERCE
02/07/97 277 (H) COSPONSOR(S): KOHRING
02/13/97 349 (H) COSPONSOR(S): OGAN
02/17/97 376 (H) COSPONSOR(S): GREEN
02/21/97 430 (H) COSPONSOR(S): ELTON
02/26/97 (H) L&C AT 3:15 PM CAPITOL 17
02/26/97 (H) MINUTE(L&C)
04/18/97 (H) L&C AT 3:15 PM CAPITOL 17
04/18/97 (H) MINUTE(L&C)
04/23/97 (H) L&C AT 3:15 PM CAPITOL 17
BILL: HB 192
SHORT TITLE: CHEMICAL DEPENDENCY COUNSELORS
SPONSOR(S): REPRESENTATIVE(S) IVAN, Bunde, Foster, Grussendorf
JRN-DATE JRN-PG ACTION
03/14/97 665 (H) READ THE FIRST TIME - REFERRAL(S)
03/14/97 665 (H) L&C, FINANCE
04/23/97 (H) L&C AT 3:15 PM CAPITOL 17
BILL: HB 203
SHORT TITLE: ACTIONS FOR UNLAWFUL TRADE PRACTICES
SPONSOR(S): REPRESENTATIVE(S) DYSON, Croft
JRN-DATE JRN-PG ACTION
03/18/97 738 (H) READ THE FIRST TIME - REFERRAL(S)
03/18/97 738 (H) L&C, JUDICIARY
04/23/97 (H) L&C AT 3:15 PM CAPITOL 17
WITNESS REGISTER
REPRESENTATIVE IVAN IVAN
Alaska State Legislature
Capitol Building, Room 418
Juneau, Alaska 99801
Telephone: (907) 465-4942
POSITION STATEMENT: Prime sponsor of HB 192.
SANDRA DEASON
4330 South Bragaw
Anchorage, Alaska 99508
Telephone: (907) 561-1336
POSITION STATEMENT: Testified on HB 192.
W. HARRISON CHILDERS, Certified Drug and Alcohol
Counselor II and Nationally-certified
Addiction Counselor II
Charter North Counseling Center
1650 South Bragaw
Anchorage, Alaska 99508
Telephone: (907) 274-7313
POSITION STATEMENT: Testified on HB 192.
WILLIAM D. McCOLL, Director
Government Relations
National Association of Alcoholism and
Drug Abuse Counselors
1911 North Fort Myer Drive, Suite 900
Arlington, Virginia 22209
Telephone: (800) 548-0497; Fax (703) 741-7698
POSITION STATEMENT: Testified in support of HB 192.
GARY TURNER, Village Services Manager
Yukon-Kuskokwim Health Corporation
P.O. Box 528
Bethel, Alaska 99559
Telephone: (907) 543-6740
POSITION STATEMENT: Testified regarding HB 192.
ARDYCE TURNER
Yukon-Kuskokwim Health Corporation
P.O. Box 528
Bethel, Alaska 99559
Telephone: (907) 543-6760
POSITION STATEMENT: Testified regarding HB 192.
BETH KERSEY, Program Director
Phillips Ayagnirvik
Yukon-Kuskokwim Health Corporation
P.O. Box 528
Bethel, Alaska 99559
Telephone: (907) 543-6724
POSITION STATEMENT: Testified regarding HB 192.
PATRICIA WINTYR
American Counselors Association of Alaska
4411 Abby Way
Juneau, Alaska 99801
Telephone: (907) 780-4999
POSITION STATEMENT: Testified in support of HB 192.
CATHERINE REARDON, Director
Division of Occupational Licensing
Department of Commerce and Economic Development
P.O. Box 110806
Juneau, Alaska 99811-0806
Telephone: (907) 465-2534
POSITION STATEMENT: Provided department's position and answered
questions regarding HB 192.
LORI NAMYNIUK, President
Substance Abuse Directors Association
P.O. Box 190221
Anchorage, Alaska 99519
Telephone: (907) 258-5578
POSITION STATEMENT: Testified in support of HB 192.
REPRESENTATIVE FRED DYSON
Alaska State Legislature
Capitol Building, Room 428
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Sponsor of HB 203.
DAVEED SCHWARTZ, Assistant Attorney General
Commercial Section
Civil Division (Anchorage)
Department of Law
1031 West 4th Avenue, Suite 200
Anchorage, Alaska 99501-1994
Telephone: (907) 269-5100
POSITION STATEMENT: Provided department's position in support of
HB 203 and answered questions.
HELEN BEIRNE
P.O. Box 111125
Anchorage, Alaska 99511
(No telephone number provided)
POSITION STATEMENT: Testified in support of HB 203.
STEPHEN CONN, Executive Director
Alaska Public Interest Research Group
P.O. Box 101093
Anchorage, Alaska 55510
Telephone: (907) 278-3661
POSITION STATEMENT: Testified in support of HB 203.
RICK GILMORE
8001 Blink Street
Anchorage, Alaska 99504
Telephone: (907) 333-3356
POSITION STATEMENT: Testified in support of HB 203.
PEGGY MULLIGAN, Capital City Task Force Member
American Association of Retired Persons
P.O. Box 240335
Douglas, Alaska 99824
Telephone: (907) 364-3144
POSITION STATEMENT: Testified in support of HB 203.
REPRESENTATIVE ERIC CROFT
Alaska State Legislature
Capitol Building, Room 430
Juneau, Alaska 99801
Telephone: (907) 465-2199
POSITION STATEMENT: Answered questions regarding HB 203.
ACTION NARRATIVE
TAPE 97-47, SIDE A
Number 0001
CHAIRMAN NORMAN ROKEBERG called the House Labor and Commerce
Standing Committee to order at 3:27 p.m. Members present at the
call to order were Representatives Rokeberg, Cowdery, Hudson and
Ryan; there was a quorum. Representative Sanders arrived at 3:56
p.m., and Representatives Kubina and Brice arrived at 5:11 p.m.
HB 116 - WORKERS COMPENSATION SELF-INSURANCE GROUP
Number 0044
CHAIRMAN ROKEBERG said the committee would first address House Bill
No. 116, "An Act relating to workers' compensation self-insurance,"
for the purpose of moving it out of committee.
Number 0061
REPRESENTATIVE BILL HUDSON made a motion and asked unanimous
consent to move HB 116, version 0-LS0463\H, Ford, 4/16/97, as
amended and with accompanying fiscal notes, out of committee.
Number 0135
CHAIRMAN ROKEBERG objected to ensure that the public hearing was
closed. Noting that Mr. Grossi and Ms. Burke were available, he
asked whether there were any questions. Hearing none, he closed
the public hearing. Chairman Rokeberg withdrew his objection, then
asked whether there was a further objection to the motion. There
being none, CSHB 116(L&C) moved out of the House Labor and Commerce
Standing Committee.
Number 0219
CHAIRMAN ROKEBERG called a brief at-ease at 3:30 p.m. He called
the meeting back to order at 3:31 p.m.
HB 192 - CHEMICAL DEPENDENCY COUNSELORS
Number 0234
CHAIRMAN ROKEBERG announced the next item of business was House
Bill No. 192, "An Act regulating chemical dependency counselors;
and providing for an effective date."
Number 0285
REPRESENTATIVE IVAN IVAN, prime sponsor, read the sponsor statement
into the record:
"The bill before us today establishes a State Board of Chemical
Dependency Counseling examiners under Title 8 of the Alaska
Statutes. Alcohol and substance abuse is a growing concern for
Alaskans. And a requirement of state licensing for chemical
dependency counseling professionals provides consumer protection
and promotes the best possible professional-quality care for
Alaskans seeking and/or in need of treatment services.
"This bill changes a voluntary certification process to
professional state licensing as a standard of practice. Currently,
there is no mechanism in place in Alaska to prevent anyone, with or
without specific training or experience, from calling themselves a
chemical dependency counselor.
"The bill before you establishes minimum levels of academic or
experiential training requirements and supervised experience to
practice as a Counselor Associate, Counselor Level I, II, or a
Clinical Supervisor.
"Alaskans age 12 and older sought chemical dependency treatment
services 9,165 times in fiscal year 1996 (admissions and re-
admissions) from programs receiving some state funding.
Additionally, there are an estimated 2,000 individuals who received
treatment services through private practice, private hospitals or
federal government providers.
"There are currently 55 programs providing services, which are
certified by the State Alcohol & Drug Abuse office. Currently,
there are over 700 certified chemical dependency counselors, and it
is anticipated that there will be growth in this field in the near
future."
REPRESENTATIVE IVAN summarized the bill's purpose: to standardize
a certification process for alcohol counselors, with the objectives
of consumer protection, quality care, and professional ethics and
conduct. He noted that in his own district, with many small
communities, there are many places where alcohol-related or drug-
related problems affect the community.
Number 0554
REPRESENTATIVE IVAN advised members that there are elders in the
communities who have provided these services. Some fear those
elders may be displaced because of this legislation. "But this
legislation certainly will recognize them, and there's ways and
means to include those people that are currently practicing their
field in providing alcohol counseling," he explained.
REPRESENTATIVE IVAN said he would forward eight proposed technical
amendments; he offered to discuss them. The Senate Labor and
Commerce Committee had also forwarded nine or more changes.
Representative Ivan indicated he would come up with a committee
substitute. A representative from the Department and Commerce and
Economic Development (DCED), Division of Occupational Licensing,
would address the fiscal note and any concerns.
Number 0663
REPRESENTATIVE JOHN COWDERY asked whether the most prevalent abuse
in Representative Ivan's district relates to alcohol or drugs.
REPRESENTATIVE IVAN replied, "Alcohol is historically number one."
Number 0715
REPRESENTATIVE COWDERY stated his understanding that many villages
have voted to be "dry."
REPRESENTATIVE IVAN responded that in their efforts to combat
problems related to alcohol, communities have utilized the state
option of laws to control it. He said, "And in my area, most
communities are dry/wet; in some communities ... you can have
alcohol in your private possession." He noted that historically in
the U.S., something that is banned tends to get there when people
can afford it.
Number 0763
REPRESENTATIVE COWDERY asked whether Emmonak is in his district.
REPRESENTATIVE IVAN explained that while he comes from the Yukon-
Kuskokwim delta region, the district he represents from Akiak goes
south toward Dillingham. Emmonak, north of the Yukon River, is in
Representative Foster's district.
REPRESENTATIVE COWDERY asked whether Representative Ivan could
estimate the population of Emmonak.
REPRESENTATIVE IVAN said he hadn't been there for six years, but he
would guess 800 to 900 people.
Number 0808
REPRESENTATIVE COWDERY recalled that a few winters ago, 12 youths
in Emmonak committed suicide because of alcohol and drugs. He said
it is hard to comprehend for such a small village how large an
impact that would have. He stated his belief that this is a good
piece of legislation.
REPRESENTATIVE IVAN replied that certainly that is one of the
biggest problems. There have been occasional waves of suicides,
including copy-cat activities, which come like an epidemic. Even
in his own community and extended family, some have lost relatives
from alcohol.
Number 0900
REPRESENTATIVE COWDERY reported that he'd talked to elders in rural
Alaska who'd indicated it had destroyed the traditional ways of the
families; many youths were no longer even going to fish camps.
Because of alcohol, sometimes they would get on a snow machine, for
example, run out of gas and freeze to death.
REPRESENTATIVE IVAN added that many people try to drink up their
alcohol, whether they are on a river boat or snow machine, before
arriving at a dry community; that is where some of the problems,
such as accidents, occur.
Number 0963
REPRESENTATIVE JOE RYAN said he has no problem with the bill.
Those who would be licensed already have a profession, but now it
would be more recognizable and acceptable. He asked, "Is this
going to mandate this service for any particular person, or it's
still going to be voluntary?"
REPRESENTATIVE IVAN replied, "The voluntary aspect is still there;
the churches and the community elders have performed that to the
maximum." He said this would make the occupation equivalent to
other occupations, which come under the Board of Clinical Social
Work Examiners or Board of Nursing, for example, to ensure that
people are qualified and that they don't abuse those they are
treating. It will provide consumer protection.
CHAIRMAN ROKEBERG invited Representative Ivan to join the committee
at the table. He asked that testifiers restrict testimony to two
or three minutes.
Number 1061
SANDRA DEASON came forward to testify, saying she chairs the Alaska
coalition for licensure. A member of the current statewide
certification commission, she was representing rural Alaska through
the Association of Rural and Alaska Native Drug and Alcohol Program
(ARANDAP) and the Substance Abuse Directors Association.
MS. DEASON provided some history. In 1993, there was a voluntary
certification commission. That year, the Indian Health Service,
which funds a great number of the providers, required higher
standards for certification. Ms. Deason noted that her group is
affiliated with the National Alcoholism and Drug Abuse Counselors
(NAADAC).
MS. DEASON indicated at that time, they unified rural and urban
Alaska in the certification process. Prior to 1993, there were
approximately 200 certified professionals in the field; most were
in the urban Anchorage area. Rural Alaska had little accessibility
to obtain certification through education, simply because of their
remoteness, and they did not have representation on the commission.
MS. DEASON stated: "At that time, the rural providers delegated
four of us onto the commission, and also the substance abuse
directors delegated two people onto the commission. Following the
year of 1993, the number jumped up into the thousands, certified
professionals. And of that number, most were real providers. As
Ivan had stated, consumer protection is definitely the number one
priority; and following consumer protection is also accessibility
to rural Alaska.
"With dwindling dollar amounts, dwindling funding, it is essential
that rural Alaska continue to get quality of care and
accessibility. We cannot do that by flying people in, from the
urban settings, out to provide services in the scenario that you
talked of, the 12 youth suicides in the Emmonak area; that was a
chain reaction that year, and the amount of money that would have
been spent to fly people in to heal the community, versus having
providers or resources in that community, I mean, there's no way to
equalize it. If there are providers in the communities that can
deliver the services, and who are familiar with and fall under some
standards to provide services, the quality of health care in all of
rural Alaska, all urban Alaska, of course, becomes quality care."
Number 1240
MS. DEASON continued: "I am very concerned. I've spent 16 years
working in the substance abuse field. My concern is, and always
has been, that there are people out there who are providing
services who are not ... certified, because it is a voluntary
process at this point. And sometimes those services are much more
detrimental than they are valuable, as far as a health service.
And what we would like to see is that everybody would be required
to follow a set of standards to practice. ... So, we wouldn't
eliminate rural Alaska; we would want those people who have been
out there practicing these standards and providing these services
to still have access to licensure, without eliminating them.
"And so, what we did is we rolled over our current certification
standards into licensure standards, which are quite high standards
for certification. I've done extensive research in the last year,
with the Lower 48 states, those who have licensure, those who
don't, those who have voluntary, those who have mandatory. And ...
what all of us did on the coalition is we've ... seen what worked
in some states and what didn't in others." She indicated that
other than the amendments they have, it is a very clean bill.
Number 1304
REPRESENTATIVE RYAN noted that everyone seemed fairly satisfied
with the bill. He offered to make a motion to move it.
CHAIRMAN ROKEBERG responded that he was going to hold the bill over
for "further activities" that would come to light in the testimony.
He acknowledged the presence of Representative Dyson and invited
him to join the committee at the table.
Number 1336
W. HARRISON CHILDERS, Certified Drug and Alcohol Counselor II and
Nationally-certified Addiction Counselor II, Charter North
Counseling Center, came forward to testify, specifying that he
works in the private sector. They see this as a public protection
and believe it is in everyone's best interest, including the
state's.
MR. CHILDERS cited an example of public protection. Under the
current voluntary system, people coming out of prison can practice
as chemical dependency counselors, and there are no sanctions or
ways to control that. He hopes this bill will provide a way to
investigate those people and to focus on everyone's best interest.
He concluded by saying they favor passage of this bill, which is
good for the state and is "just good business."
Number 1391
REPRESENTATIVE HUDSON asked: With there being no licensure, how
are the bona fides established under the present system?
MR. CHILDERS explained that there are about 700 certified addiction
professionals in Alaska. There is a voluntary system, with a code
of ethics attached to membership in that organization. A board has
been put together to investigate allegations. As he sees it, the
crux of the issue is that there is no way to "enforce allegations
of misconduct" at this point. Although people who are not licensed
or even certified counselors have been cited, nobody on the board
has power to do anything about that.
REPRESENTATIVE HUDSON asked whether it is an ad hoc board.
An unidentified speaker said yes.
Number 1450
CHAIRMAN ROKEBERG asked who now certifies counselors.
MR. CHILDERS said it is the Alaska Commission for Chemical
Dependency Professionals.
CHAIRMAN ROKEBERG stated his understanding that the existing
commission grants certification, but without state authority.
Number 1499
REPRESENTATIVE HUDSON asked whether there is public funding for
that.
MR. CHILDERS said there is some funding; others could speak to
that.
Number 1526
WILLIAM D. McCOLL, Director, Government Relations, National
Association of Alcoholism and Drug Abuse Counselors (NAADAC),
testified via teleconference from Washington, D.C., in support of
HB 192. With more than 17,000 members, NAADAC is one of the
largest national organizations representing the interests of
alcoholism and drug addiction treatment and prevention
professionals. They've assisted in authoring licensure bills
throughout the U.S., and they provided relatively minor technical
input into HB 192.
MR. McCOLL stated, "NAADAC strongly supports the enactment of state
licensure laws. Such laws establish an organized system which
ensures that the delivery of this vital health care service is
provided by trained and experienced professionals who have met
rigorous training requirements prior to being licensed or certified
by the state as alcohol and drug counselors. This is important for
the protection of consumers of these services in the state of
Alaska."
MR. McCOLL continued, "Counselors who have met the licensing
criteria outlined in this bill will constitute the one group of
professionals who specialize in the diagnosis, assessment and
treatment of alcoholism and other substance abuse disorders. These
counselors possess a constellation of knowledge that is unique to
the alcoholism and drug abuse counseling profession and which
distinguishes them from other health care professions. We believe
that the licensure of alcohol and drug counselors will help to
ensure that the citizens of this state who suffer from an addiction
disease will receive care from a qualified, experienced and
competent professional."
Number 1618
CHAIRMAN ROKEBERG asked what the national entry requirements are
for education and whether NAADAC provides a national examination.
MR. McCOLL replied, "NAADAC does provide a national examination.
We are a certifying body. We have three exams. They are for the
NCAC, which is our lowest level of certification and which has no
educational requirement; the NCAC II, which has a slightly higher
educational requirement, a bachelor's degree; and then the Masters
of Addictions Counselors, MAC, which, as it states, requires a
master's degree."
MR. McCOLL continued, "The answer to your first question: The
level in the states right now somewhat varies. The trend has been,
I think, of late, to enact laws which may contain some educational
requirements. However, I would add that that's certainly not
uniform. New Mexico just passed a bill without any educational
requirements." He added that ten states now have licensure or
mandatory certification.
Number 1690
REPRESENTATIVE COWDERY asked whether the national exam addresses
issues pertaining to Yupik or Alaska Native populations.
MR. McCOLL indicated the exam addresses issues considered more
universal in addiction studies. He said there are minority
concerns within NAADAC itself, and they have established a minority
committee which relays those types of concerns. He offered to find
out from the persons who create the certification exam whether any
questions regard Alaska Natives; however, he doesn't believe that
is the case.
Number 1749
REPRESENTATIVE COWDERY observed, from his 40 or 50 years here and
time spent in rural areas, that elders rather than outsiders may be
more respected and looked to for talks and encouragement.
MR. McCOLL replied, "I certainly understand your concern. I think
that the addiction treatment profession has a very clear commitment
to respecting Native rights, and certainly the kinds of questions
that we are talking about are very much geared towards a sort-of-a-
universalist practice, which can be modified, of course, for
(indisc.) under those types of heritages."
Number 1802
REPRESENTATIVE HUDSON referred to Mr. McColl's indication that
NAADAC had helped other states in their move to licensure. He
asked whether most counselors in other states had been
grandfathered in or were disenfranchised.
MR. McCOLL answered that usually there is a move to grandparent
those existing counselors in, depending on the state. For example,
he believed that Maine had an eight-year grandparenting clause;
however, that included a master's requirement. He pointed out that
of the ten states that had enacted laws, only four had enacted any
degree requirements.
Number 1845
REPRESENTATIVE HUDSON asked whether Mr. McColl was familiar with
the "Alkali Lake proposal" a few years before, which incorporated
"some pretty peculiar and specific drug and alcohol dependency,
primarily alcohol dependency, measures in that area."
MR. McCOLL said he wasn't familiar with that specific legislation.
Number 1874
CHAIRMAN ROKEBERG referred to educational requirements in some
states. He asked whether within the bylaws, or elsewhere,
experience levels could be exchanged for education.
MR. McCOLL replied that some states had made that an option, and it
is well within the tradition. It is clear to him that each state
needs to decide. For Alaska, based on its rural population, he
believes that type of exchange is quite fitting.
CHAIRMAN ROKEBERG asked whether for Mr. McColl's national
association, the examination is the primary method of entry into
certification.
MR. McCOLL said that is correct. He stated, "I'd like to draw a
distinction here. NAADAC certification is a private, voluntary
certification. And we do certify at three levels, based on
educational requirements. ... And many states do use NAADAC's
written exams. However, the state certifications very frequently
will accomplish ... their goals by doing things like trading off
experience levels with years of education, that type of thing.
That's not an unusual type of arrangement for a state to make."
Number 1935
CHAIRMAN ROKEBERG asked whether any other national organizations
work parallel to or in competition with NAADAC.
MR. McCOLL said there are other certifying organizations, some
national, including the "international certification reciprocity
consortium" and the "FECC," for which he knew only the acronym.
CHAIRMAN ROKEBERG thanked Mr. McColl and exchanged contact
information.
MR. McCOLL said he'd send information regarding whether his
organization asks questions specific to Alaska Native issues.
Number 2050
GARY TURNER, Village Services Manager, Yukon-Kuskokwim Health
Corporation, testified via teleconference from Bethel, specifying
that he works with the Village Alcohol Education Counselors (VAEC)
program. He oversees village-based counselors in 18 villages who
serve about 36 villages in total.
MR. TURNER expressed concern about the testing. When he'd failed
the test by one question, he'd felt incompetent. He believed it
was culturally biased, not taking into account traditional values
of Natives. He explained, "We have to kind of look at the world
backwards to pass this test. We have to look at it the other way,
and it goes against all our own values and how we see the world."
MR. TURNER said he believes that many of their counselors are Level
II counselors out there. He stated, "They've been in appeal for
ten years. Just because they can't pass this test, they're not
considered Level II in the academic world. And trying to teach
these people these things, to try to look at this test differently,
has been my goal. I'm taking the test again Saturday, and I feel
I'm prepared to do a good job, but that doesn't guarantee me that
I'll pass. I'll keep trying."
MR. TURNER said he is trying to obtain his degrees; he foresees
that if they don't stop this progression of being licensed and
needing a certain academic degree, they will lose many Native
counselors. Others would come in and provide services without
understanding the culture, traditions and values, which would not
benefit the Native people.
MR. TURNER stated, "The people who are in place now are the ones
that should be providing the services and not be limited because of
these simple things like you need to be Level II and these are the
things you need to pass. Maybe in the future we'll need a degree
to do that. And it doesn't take in account that what we have,
experience, lifestyle, the things that we've been doing for
centuries, is going to benefit our people, not a piece of paper
that says you're a Level II counselor or that you have this degree,
bachelor's degree in human services. If we go that route, we're
going to lose a bunch of our people in the field."
Number 2188
CHAIRMAN ROKEBERG asked whether Mr. Turner believes the existing
commission could develop an examination that is not culturally
biased and that would apply to rural Alaskans.
MR. TURNER said with strong input from rural areas, and with rural
residents included in that process, he strongly believes they can
do that.
CHAIRMAN ROKEBERG asked whether, if that were the case, an
examination should be required to gain certification.
MR. TURNER agreed and said they also propose that someone certified
as a Level II, for example, according to current standards, could
supervise someone else for five years; that second person could
possibly automatically become Level II under that supervision.
MR. TURNER restated his recommendation that any test should take
into consideration Native values and traditions. He stated, "It
doesn't have to be an easy test, but at least we'll have a chance
at it without being tricked: Two negatives means a positive; I
don't know that stuff. And big terminology like `multifacet,' we
don't know what those things mean. So, we take the test already
beating ourselves. That doesn't mean we're stupid or we're
incompetent."
Number 2218
CHAIRMAN ROKEBERG wished Mr. Turner the best of luck on his exam.
Number 2292
ARDYCE TURNER, Yukon-Kuskokwim Health Corporation, testified via
teleconference from Bethel that she is the new "FAF coordinator/
supervisor." She stated, "This is going to be my third attempt at
taking this test. I also found it to be very culturally biased.
And what I mean is, my perspective isn't the national perspective,
and I found it very frustrating, even though I did study here and
there, you know." Her first try, she'd been 15 away from passing.
Her second try, she'd been six away.
MS. TURNER said she'd wished the NAADAC would send a survey or make
recommendations for the rural area; often, it seems like taking a
test blindfolded, feeling their way around and hoping for the right
answer. She agreed with Gary Turner that there are a lot of trick
questions, such as use of the word "multifaceted." She considers
herself an educated woman, a parent, a mother, and a student as
well. She is still going to school and is a year away from an
undergraduate degree.
Number 2367
CHAIRMAN ROKEBERG asked whether Ms. Turner would be taking the
NAADAC test.
MS. TURNER said yes.
CHAIRMAN ROKEBERG wished her luck on that.
Number 2384
BETH KERSEY, Program Director, Phillips Ayagnirvik (drug and
alcohol program), Yukon-Kuskokwim Health Corporation, testified via
teleconference from Bethel. She oversees a program with a staff of
60, primarily counselors, of which 27 are village-based. They
cover approximately 57 villages in the region.
MS. KERSEY thanked Representative Ivan for introducing the bill.
She works with both Gary Turner and Ardyce Turner. Although they
support licensure and understand its importance, they want to
ensure careful consideration of a few points. First, the
commission appointed by the governor must reflect Alaska's cultural
diversity; Ms. Kersey proposed that the language be stronger.
MS. KERSEY said second, they want to make it clear that the
strength of rural Alaska lies in its "natural helpers, who may be
the young people and certainly the elders." She stated, "And we
want to make sure that they're going to fit into the clause that
allows them to be able to still turn around and do, kind of, what
we might consider counseling but not have to be licensed. So, I
would assume that they're going to be able to fit under the clause
that says that as long as they're responsible to a tribal group,
that then they can be exempt from licensure."
MS. KERSEY mentioned the concept of "an inherent training, which
would bring people in from the villages." Individuals willing to
act as natural helpers would reach out to members in the
communities in such a way that licensure wouldn't be required, nor
would they be charged with a misdemeanor for doing what tradition
has taught them to do. She also expressed concern, as an
administrator, about filling vacancies that arise.
TAPE 97-47, SIDE B
Number 0006
MS. KERSEY mentioned the need to get people to where they can do
counseling and respond to their community fairly quickly. She
stated, "So, having this counselor associate, where they've got to
wait for a year, I have real concerns. I also wonder what we're
going to do until they can make that counselor associate level in
the year interim, again, because we don't have people with these
credentials waiting in the villages." She restated her support of
licensure but requested consideration of these other points.
Number 0034
CHAIRMAN ROKEBERG asked whether Ms. Kersey was referring to an
exemption for "traditional-type" counseling.
MS. KERSEY referred to pages 2 and 3. She said it seems that
someone who reports to a tribal group could be exempt from any kind
of licensure if there were "natural helpers" out there.
CHAIRMAN ROKEBERG asked whether they would be employed or paid.
MS. KERSEY referred to page 3, lines 2 through 4, which says, "and
the person remains accountable to the established authority of the
religious denomination or the ruling body of the tribal group and
no separate charge is made for the services". She said it appears
someone maybe could do this without worrying about being charged
with a misdemeanor.
Number 0100
PATRICIA WINTYR, American Counselors Association of Alaska, came
forward to testify, indicating they are also working on licensure
for counselors. She stated, "I definitely support this
legislation. And some of the wording potentially limits the
practice of counselors, something we've been doing long before
there was the drug abuse counseling. On page 2, it says a person
who is not licensed under this chapter may not engage in chemical
dependency counseling for compensation, et cetera." She specified
she was referring to lines 18 through 20.
MS. WINTYR referred to page 9, line 31, continuing to page 10,
which defines "chemical dependency counseling" as the provision of
intervention, assessment, counseling and aftercare for persons who
are alcoholics or drug abusers or who participate in inhalant abuse
or for the members of their families who are affected by the use or
abuse of alcohol, drugs or inhalants.
MS. WINTYR suggested eliminating that or rewording it because
counselors couldn't be in business if they were unable to counsel
those with alcoholism and drug abuse in their families. It is
limiting and possibly infringes on established rights of
counselors, marriage and family therapists, psychologists and
social workers. Although she often sends people to chemical
dependency/abuse counselors, she could also counsel them well. One
cannot be in the counseling business without learning a lot about
working with abuse. She added, "Probably every client I work with
is affected by alcohol abuse in their family."
Number 0270
REPRESENTATIVE HUDSON asked whether she wanted to remove "for the
members of their families."
MS. WINTYR said yes. It says on page 2 that a person who is not
licensed under this chapter may not engage in chemical dependency
counseling for compensation, which is later defined on page 9;
those two go together. If she practiced counseling that way, she
would be in violation, a class B misdemeanor. "And I don't think
that you want to do that to the number of Alaskan counselors or
psychologists; I mean, it just doesn't make sense," she added.
Number 0318
CHAIRMAN ROKEBERG said they'd not be moving the bill that day. He
asked whether she had additional testimony.
MS. WINTYR replied, "No, I definitely support the testimony
otherwise."
CHAIRMAN ROKEBERG asked Ms. Wintyr to provide written comments.
Number 0350
CATHERINE REARDON, Director, Division of Occupational Licensing,
Department of Commerce and Economic Development, came forward to
testify, noting that the board and associated licensing activities
in this bill would be part of her division. She stated, "I did
work with the supporters of the bill to go through the version in
the other house, and I have a number of relatively small, from my
perspective, clean-up provisions that I think that - I haven't
spoken with the sponsor but with some of the folks sitting behind
me - seem to be mutually acceptable, ... which I'd hoped you might
consider for a draft CS." She asked whether they wanted her to run
through those.
CHAIRMAN ROKEBERG replied that they'd be sending this bill to a
subcommittee. He asked that Ms. Reardon provide those in writing.
Number 0406
REPRESENTATIVE IVAN indicated the fiscal note had raised concern in
the Senate Labor and Commerce Committee, and he believes the start-
up costs for this control board will be substantial. However, he
believes once this board is up and running, they could provide the
best possible service. In addition, the people who will be
counseled or affected by this bill will stay away from the
Department of Public Safety, Department of Corrections and
Department of Health and Social Services and therefore not impact
those departments fiscally in the future. He asked Ms. Reardon to
comment on the fiscal note.
Number 0458
MS. REARDON referred to page 2 of the fiscal note and said they'd
tried to provide a detailed description. She explained, "What I've
calculated is that there are approximately 700 licensees, based on
the number of people who are currently licensed or certified by the
commission. It seems to range from 650 to 800 in their history;
so, I picked the number 700. And I estimated that it would take a
full-time Range 12 clerk, licensing examiner, to staff the board
meetings and work with the licensees, the applicants, and do all of
the paper processing and all of that."
MS. REARDON said the fiscal note also includes a half-time
investigator for disciplinary and complaint investigations, which
is the first item under personal services. "It includes $9,100 of
travel money for the board to meet, and ... $2,000 of that is for
the investigator to go to areas where events might occur that need
to be investigated," she said.
Number 0522
MS. REARDON pointed out that the contractual services line is a big
item in the fiscal note. The smaller parts are the costs of public
noticing, regulations, telephones and so forth; the big item
relates to examinations, with $75,000 to contract with an outside
company to write three exams. "We just picked $25,000 each," she
explained. "And that's where the decisions about what happens with
exams matter a lot. My understanding is that ... the existing
commission has been using the Level I national exam for its Level
II ... counselors in this bill. And so, that wouldn't cost us
anything to develop, if the board chose to continue using that
exam."
MS. REARDON said because they are using the Level I exam as the
test for Level II counselors, it is her understanding that no
existing test remains for "the Level I people or the associates."
She believes that is being researched. The board might want to
contract out to have those created, or perhaps the existing tests
wouldn't be considered acceptable from an Alaska perspective and
new tests would need to be written. A big item in the fiscal note,
that was part of the discussion in the Senate Labor and Commerce
Committee the previous day, because building in that $75,000 made
the numbers big and made the license fees come out larger.
MS. REARDON stated, "Also, if people are going to be paying us to
take the exam and we buy the exam from the national exam company,
that money flows through our budget; so, it shows as revenue and
expenditures. If they pay the exam company directly, it stays
outside our budget; then you don't see it here. So, part of not
being sure whether the board will choose to have exams or not,
since it's permissive language in the bill, means that ... it's a
little bit hard to know whether or not to build it into the fiscal
note."
MS. REARDON further explained, "My concern was that if I didn't
build it into the fiscal note, and two years from now the board
wants to get exams written and wants to have everybody take them,
I'd say, `Well, I have no expenditure authority to do any of that.'
So, I put it in the fiscal note. ... If we had an understanding
that the board would not require examinations without going back to
the legislature for expenditure authority, then I probably wouldn't
put it in the fiscal note." She said that had been one of the big
issues the previous day in the Senate.
MS. REARDON said in addition, there is $10,200 in the fiscal note
for paying the Office of the Attorney General to prosecute the
disciplinary cases and do regulation review. She concluded by
saying those are the major items in there; she offered to discuss
the details if the subcommittee or the sponsor so desired.
Number 0668
CHAIRMAN ROKEBERG stated his understanding that the educational and
examination formats are issues for the commission to settle. The
fiscal note provides a baseline from which the subcommittee and the
bill sponsor can work. He suggested that Ms. Reardon could consult
with them as necessary.
Number 0711
MS. REARDON agreed. She pointed out that, as with all of their
programs, the department would fall under the mandate that
licensing fees and other fees received for exams and so forth must
cover all of the costs. Therefore, the fiscal note will always be
a "net wash" to the general fund. However, she expects that the
fees will be more expensive than what people are currently paying
to the nonprofit commission; she wants people considering licensure
to be aware of that.
MS. REARDON advised members that fees for what she considers mental
health licensing boards, such as for marriage and family
therapists, psychologists and social workers, run $350 to $500
every two years, depending on the profession. However, they have
smaller numbers of licensees; for example, psychologists have fewer
than 200 licensees, compared to 700 here. From the previous day's
testimony, she believes those affected by the bill now pay $125 for
a two-year license. She expects that even if they take the whole
exam issue off the fiscal note, figuring that if exams are
developed, it will be through a budget allocation in a future year,
the fees would still probably run about $350.
Number 0756
REPRESENTATIVE IVAN said he didn't want the fiscal note to kill the
bill or slow its progress. He stated his belief that eventually
the licenses will become affordable. In addition, he hopes this
will indirectly save money, in terms of people they take care of.
Number 0784
CHAIRMAN ROKEBERG said he didn't see revenues from the actual
license examination fees. He asked about that.
MS. REARDON referred to the bottom of page 3 of the fiscal note and
explained that she hadn't been sure how many people would be taking
the exams. She stated, "So, if we got to it, in a subcommittee,
the exam discussion, I could probably, you know, array the costs a
little bit." In this fiscal note, however, they had put all of the
burden on the actual licenses.
CHAIRMAN ROKEBERG said presumably, there would be examinations
given and revenues generated by that, which would in turn lower the
biannual fees.
MS. REARDON agreed.
Number 0868
MS. REARDON said she'd move speedily through other issues. She
restated that it will cost more than people have been paying, and
she doesn't want to take them by surprise. Referring to testimony
by Ms. Wintyr, she pointed out there is an exemption for the other
licensed mental health professions, such as marriage and family
therapists, psychologists and social workers; they wouldn't need to
get this license as well. She read from page 3, lines 8 and 9,
which says a "person licensed in this state under laws outside this
chapter when performing activities that are within the scope of the
person's licensure" is exempted.
MS. REARDON pointed out, however, that while a psychiatrist with a
license would be exempted, Ms. Wintyr is correct that someone not
in a licensed profession, such as a professional counselor, which
Ms. Wintyr is, wouldn't be exempt and would need to get this
license to do chemical dependency counseling.
MS. REARDON noted that she had a whole collection of minor issues.
She suggested dealing with them at the subcommittee level unless
the committee preferred otherwise.
CHAIRMAN ROKEBERG said that was an excellent idea.
Number 0946
REPRESENTATIVE HUDSON referred to the fiscal note and to testimony
about the difficulty some have relating to the exams and
qualifications in rural Alaska. He sees the major problem in rural
Alaska and doesn't see a lot of people out there making lots of
money as licensed professionals. If it costs $500 to get a
license, nobody out there would do this kind of service, and it is
in rural Alaska that they are needed. "And I would hope that you'd
take a hard look at that whole situation and see if there isn't
some way in which we can accommodate that or provide it," he said.
REPRESENTATIVE HUDSON asked whether Ms. Reardon would have a hand
in creating the qualifications for the counselors, particularly in
rural Alaska. He noted that in Juneau, Anchorage and Fairbanks,
there were many highly educated people. However, the lion's share
of the problems are in rural Alaska. He expressed hope that this
legislation could lead to professionals not necessarily from a
high-academic point of view but from cultural relationships and
some training. In addition, he'd like to see an affordable cost
that is conducive to encouraging people to acquire these licenses.
Number 1061
MS. REARDON responded that the regulation-writing authority will
rest solely in the hands of the board. "If I'm around, and if I'm
convincing, then ... the director may have a role," she added. The
qualifications in terms of training and experience are fairly
specifically laid out, "if we ignore the exam issue." She said it
is important that the legislature be comfortable with those.
MS. REARDON explained, "To enter into the profession as a counselor
associate, which is the lowest level, you will need to have ... one
year of training in an approved training course, under this law,
under the supervision of a licensee. And I don't know whether
that's doable or not, but I assume that the (indisc.) believe so."
Number 1112
REPRESENTATIVE IVAN said he appreciates Representative Hudson's
recommendation and they will look at the level of licenses being
offered. He suggested perhaps the costs could be "met at different
education or experience levels, versus chemical supervisor license
fee costs," and he acknowledged that some of these people aren't
making $80,000 to $100,000 a year.
Number 1154
REPRESENTATIVE HUDSON stated his belief that they should be leaning
towards a program similar to that for health aides in the villages,
for example. He suggested devising in the subcommittee a way to
get a qualified person in every village, at no cost to the person,
who would be selected. "And we should be able to find the moneys,
because I think that it's such a high public importance to do
that," he concluded.
Number 1198
MS. REARDON asked for confirmation that he was referring to having
a funding source from the general fund, not from program receipts.
REPRESENTATIVE HUDSON said that was his thinking.
MS. REARDON said she was looking forward to working with the
sponsor and any subcommittee. She was glad they were talking about
costs now and working on the issue of the fiscal note, because she
didn't want to catch people by surprise and have unintended
consequences.
Number 1236
CHAIRMAN ROKEBERG asked whether anyone else wished to testify. He
announced that they would hold HB 192 over. He expressed the
desire to send this to a subcommittee including the Senate Labor
and Commerce Committee, the existing commission and the bill
sponsor, to develop "a bill that everybody can live with in an
affordable and effective manner." He emphasized his belief that
this is excellent legislation. He stated, "Hopefully, at a point
where it reaches its maturity, we of this committee would be happy
to take it back up and move it along in an expeditious manner, when
it reaches that point."
CHAIRMAN ROKEBERG said the subcommittee should perhaps insert a
section on the examination criteria, particularly as it relates to
the types of questions, including definitions of terms, making it
clear that the examination meets the diverse needs of Alaska and
ensures adequate training and knowledge, without the difficulties
such as those discussed by the testifiers from Bethel. He
suggested that could be done through some "artful drafting in
statute."
Number 1349
LORI NAMYNIUK, President, Substance Abuse Directors Association,
testified in support of HB 192 on behalf of herself and her
association. She believes it will ensure consumer protection and
enhance the quality of care. It has statewide support, not only
from her association but also from ARANDAP and the Alaska Native
Health Board. It will also ensure access to services in rural
areas.
MS. NAMYNIUK referred to concerns expressed from Bethel and said
this bill would protect providers like Gary Turner, in that
currently within the bill there are no degree requirements;
experience is important, as is supervision. "And this would also
give us opportunity to be involved in the development of the
testing standards," she concluded, thanking the sponsor.
Number 1427
CHAIRMAN ROKEBERG appointed Representatives Hudson, Ryan and Kubina
to the subcommittee, advising them of their charge to meet with the
Senate, the sponsor, and the people involved. He announced HB 192
was being held over.
CHAIRMAN ROKEBERG called a brief at-ease at 4:47 p.m. He called
the meeting back to order at 4:48 p.m.
HB 203 - ACTIONS FOR UNLAWFUL TRADE PRACTICES
CHAIRMAN ROKEBERG announced the next item of business, House Bill
No. 203, "An Act relating to actions for unlawful trade practices."
Number 1513
REPRESENTATIVE FRED DYSON, sponsor, advised members that
Representative Croft and the person on line from the Office of the
Attorney General would address technical questions about Alaska's
consumer protection law. He stated, "Since the mid-80s, we have
continued to defund the Attorney General's consumer fraud
department. And it's been reduced to the level where only the most
extreme cases are they able to handle. And ... the response for
dealing with consumer fraud has largely fallen to the BBB, the
Better Business Bureau, who has no legal standing in enforcement."
REPRESENTATIVE DYSON said this bill purports to equip private
citizens with most of the power of the Attorney General in terms of
seeking relief from fraud and injunctive power to stop it while it
is occurring. It appeals to him because it gives private citizens
the power to do the enforcement and to seek relief.
REPRESENTATIVE DYSON explained that part of the problem previously
was, as he remembered it, a $200 limit for punitive damages. This
made it virtually impossible to find an attorney willing to take
the case. As he understood it, it was also impossible to get an
injunction to stop a fraudulent act until going to court and
obtaining a verdict of guilty. This bill provides the means to
cure all of those problems.
Number 1674
REPRESENTATIVE DYSON noted that a fair amount of fraud occurs in
Alaska, He cited examples related to telemarketing, used cars in
Anchorage, "bait-and-switch" deals involving meat, mail-order and
pyramid schemes, and airline discount ticket deals. Nationwide,
Alaska is the state least prepared, in terms of available staff or
resources, to deal with consumer fraud. The Better Business Bureau
in Alaska has been receiving 100 to 300 calls a day. In 1995, the
last year for which figures are available, there were 20,562 calls
relating to concerns about consumer fraud. Since January of this
year, Representative Dyson indicated he and Representative Croft
had been working a good deal with the Administration, and he
believes the Administration is wholeheartedly in favor of this.
Number 1804
REPRESENTATIVE COWDERY asked Representative Dyson to comment about
the amount of "actual damages or $500" in Section 2. He said it
seems to be a very small figure.
REPRESENTATIVE DYSON stated, "Remember, it was $200 before," then
indicated the punitive damages are triple the actual damages award.
He deferred to Mr. Schwartz for technical answers.
CHAIRMAN ROKEBERG invited Representative Dyson to join the
committee at the table.
Number 1889
DAVEED SCHWARTZ, Assistant Attorney General, Commercial Section,
Civil Division (Anchorage), Department of Law, testified via
teleconference from Anchorage, saying he is in charge of consumer
protection enforcement for the department. He stated, "The
Department of Law's official position on this bill is that we
enthusiastically support it. We see it as a way of enhancing a
private litigant's ability to sue under the consumer protection act
and to exercise their private right of action ... to obtain redress
for a consumer protection violation, and this being especially
important in our era of dwindling public resources devoted to
consumer protection enforcement."
MR. SCHWARTZ pointed out that the department hasn't taken
individual complaints from the public in the area of consumer
protection for about ten years; that function had been eliminated.
Whereas they once had about 16 people in a separate consumer
protection section, they now have a very small staff to litigate
the most egregious violations, some of which Representative Dyson
had mentioned. They try to litigate cases involving large numbers
of consumers and try to get refunds. Although fairly successful
with what they do, they are only a shadow of the staff that existed
in the 1980s.
Number 2002
MR. SCHWARTZ agreed this bill will enhance a consumer's ability and
incentive to sue under the consumer protection act. Referring to
Representative Cowdery's question about Section 2, Mr. Schwartz
stated, "Section 2, as amended, would expand the types of actions
available. Currently, under the private right of action section of
the consumer protection statute, a person must suffer an
ascertainable loss of money or property in order to bring a private
action under the consumer protection act. Last year, the
legislature amended the consumer protection act to make unwanted
telephone solicitation a violation of the consumer protection act."
MR. SCHWARTZ pointed out that the new Anchorage telephone directory
and "some other books" contain black dots next to a few customers'
names. He explained, "If a telemarketer calls a person with a
black dot next to their name, that's a violation of the consumer
protection act. Those consumers may not suffer any ascertainable
loss of money or property, but they are `otherwise aggrieved' under
the consumer protection act, and they would have a cause of action
under the consumer protection act with this wording on lines 9 and
10, `or who is otherwise aggrieved.'"
MR. SCHWARTZ continued, "Additionally, under the current private
right of action section, a person may obtain their actual damages
or $200 for their entire case, whichever is greater, and they may
only get three times their actual damages if they can prove a
willful or intentional violation. The amendment would
automatically triple the actual damages that would be awarded to a
consumer and would also give a consumer the greater of three times
their actual damages or $500 per violation. So, even though it
looks like a small step up from $200 to $500, right now a consumer
who doesn't get his actual damages but gets $200 statutory damages
instead would get $200 for their entire case. Under the amendment,
they would get $500 per violation."
MR. SCHWARTZ continued, "For example, someone with a black dot next
to their name gets ten calls from a telemarketer, each call being
a violation. Under the current statute, they've suffered no actual
damages; so, they'd get only $200. Under this amended statute,
since they've suffered no actual damages, they could get $500 per
telephone call, or $5,000. So, that's how that might work."
Number 2219
MR. SCHWARTZ reported that Sections 1 and 3 are housekeeping
provisions to recognize other changes in the bill. Section 4
allows a person to bring an action for injunctive relief, which is
significant because of the state's inability, due to lack of
resources, to obtain an injunction in every instance of a consumer
protection violation. This would also encourage a private litigant
or a consumer group to engage in private enforcement of the
statute.
MR. SCHWARTZ stated, "The section of the bill dealing with
attorneys fees and costs, that's also part of Section 4, is very
significant because a prevailing plaintiff would be able to get an
award of full attorneys fees and costs and would only be subjected
to the payment of attorneys fees to a prevailing defendant if it
were shown that the plaintiff's suit was frivolous. This amendment
would bring Alaska in line with the vast majority of states and ...
would, I believe, take us out of the same league as Mississippi."
MR. SCHWARTZ said his general comment about the bill is that it
would indeed encourage more private litigants to enforce their
rights under the consumer protection act, and it would generally be
a good thing for consumers.
Number 2380
REPRESENTATIVE RYAN asked whether anything in this consumer
protection law talks about due diligence on the part of the
consumer. He noted that a Persian saying found in the Old
Testament says, "A buyer needs 100 eyes; a seller needs but one."
He asked, "Where is it that you are completely held harmless for
anything anybody hoodwinks you into, and the other person is the
only one that has any guilt? Do you not have a responsibility to
be aware how you spend your money and to what agreements you make?"
MR. SCHWARTZ replied that most certainly, consumers should be aware
that there are a variety of business practices. However, just
about every state has a consumer protection act.
TAPE 97-48, SIDE A
Number 0006
REPRESENTATIVE COWDERY commented that there are many things Alaska
has that other states don't, including Prudhoe Bay and the
permanent fund. Referring to "pyramid clubs," he said he receives
a letter at least once a year from somebody who is totally
convinced it is workable, usually someone he knows. He asked,
"Following up on Representative Ryan's comment, how do you handle
a situation like that?" He also asked how this is different from
small claims court.
Number 0125
MR. SCHWARTZ explained, "A consumer can sue under the consumer
protection act in small claims court. Of course, the dollar
recovery limit in small claims court is $5,000. And in many
instances, the consumer's actual damages will be much greater than
$5,000. And so, that would bring the consumer into the area of
district or superior court. So, small claims court is actually an
avenue of redress for consumers who have small claims, claims under
$5,000."
MR. SCHWARTZ pointed out that pyramid schemes are illegal. A
pyramid scheme of the worst variety is one where "spots on a chart"
are being sold, with no product involved at all. In contrast,
there are multi-level marketing companies such as Amway that are
legal. However, these companies may not work sometimes, and it may
depend on the motivation of the person who gets involved.
Number 0262
CHAIRMAN ROKEBERG referred to new text in Section 2, beginning on
page 1, line 15, which says, "Nothing in this subsection prevents
a person who brings an action under this subsection from pursuing
other remedies available under the law, including common law."
Chairman Rokeberg said this is a rather unusual statement. His
reading of it would be that a person could bring a cause of action
for anything allowable under statute; in addition, if there is any
other concept in common law, he could bring a cause of action on
that, whether or not it was codified in Alaska statute. He asked
whether that is a correct interpretation.
MR. SCHWARTZ replied that he believes this last sentence in Section
2 is consistent with something in the consumer protection statute
at AS 45.50.471(c), which says, "The unlawful acts and practices
listed in (b) of this section are in addition to and do not limit
the types of unlawful acts and practices actionable at common law
or under other state statutes."
MR. SCHWARTZ said, "So, I guess the answer to the question is that
right now, a private litigant and the state, exercising the
Attorney General's common law authority, may bring an action
simultaneously under the state consumer protection act and under
the common law and pursue statutory and common law remedies. So,
this sentence that you're focusing on here is consistent with, and
may be just an added clarification of, the ability of a litigant to
sue ... simultaneously under state law and common law."
Number 0421
CHAIRMAN ROKEBERG asked whether that is under the consumer
protection title or for any cause of action.
MR. SCHWARTZ said these amendments refer only to Alaska's own
unfair trade practices and consumer protection act.
Number 0449
CHAIRMAN ROKEBERG referred to page 2, lines 9 and 10. He mentioned
Mr. Schwartz's reference to the "telephone situation" and the
distinction that presently there must be an ascertainable loss or
property loss. Section 3 deletes "the loss resulted" and inserts
"the cause of action arose." Chairman Rokeberg asked whether that
is because if there is fraudulent activity but no actual loss, then
a cause of action would arise out of that activity.
MR. SCHWARTZ affirmed that. That change of language in Section 3
recognizes that persons who haven't suffered an ascertainable loss
of money or property, but who are otherwise aggrieved, could also
bring a cause of action.
Number 0533
CHAIRMAN ROKEBERG referred to page 2, lines 27 and 28, which says,
"unless the court determines that the cause of action brought by
the plaintiff is frivolous." He stated his understanding that
Alaska has no vexatious litigation statute or frivolous lawsuit
statute, except perhaps the recent tort reform bill. He asked
whether that is correct.
MR. SCHWARTZ said he isn't aware of such a statute, although in
other states this is a common provision. It would have the effect
of encouraging private enforcement of the consumer protection
statute.
Number 0627
HELEN BEIRNE testified via teleconference from Anchorage as an
aggrieved private citizen. She recounted how a car was sold to her
fraudulently in 1994. It had been listed in the paper as a 1993
model with 12,000 miles and a three-year warranty with one year
remaining. Someone with her knew more about cars than she did, and
the car appeared to be in mint condition. However, within four
days, it had significant mechanical problems, and she discovered
under the warranty that it had been in a major accident and was
unsafe.
DR. BEIRNE stated, "They agreed that many of the repairs that had
been made on the car by a local body shop here would have made it
not very discernible to someone, unless they put it up on a rack
and did a major inspection. So, on advice of an attorney, I did
take it back to the gentleman and ask him if he would just take his
car back and return my money. Of course, he would not and again
indicated that all he'd told me was true, that it was really a
family car and he couldn't afford to keep it, et cetera, et cetera.
This is a common story, I think, that all of you have heard."
DR. BEIRNE continued, "When this failed, I did then start tracking
the car down and found that he had indeed purchased it from a
salvage yard, at a very reduced price, and in conjunction with his
body shop had brought this up into what appeared to be absolutely
mint condition. Other things that came to light was that he was
doing this frequently. ... It'd be difficult to say, but he had as
many as a hundred ads in the paper over the year and had many cars
listed under his name. He was unlicensed."
DR. BEIRNE continued, "And in all cases, as I started contacting
these people, in most cases - there were people who were
professional individuals - most of them didn't have the finances,
nor did they have the time, to actually pursue it. There were two
or three who had sued him, and they dropped it because they
realized after, I think, counsel from attorneys and others that
even if they won, they would indeed lose."
DR. BEIRNE continued, "And later on, ... I did choose to carry this
to a jury trial, which he requested, and I realized that these
individuals who work in these systems know all of the delay
tactics. They will take it to the very `nth' degree, and then
eventually people drop it. They can't afford to spend the time,
the energy and the money to pursue it. It appeared that after he
realized I was not going to do that -- and the reason I didn't is
it was in my first year of retirement as director of the
Municipality of Anchorage's health department, and it wasn't the
way I would choose to spend my first year of retirement, but I
thought I would pursue it." Dr. Beirne said a young woman attorney
contributed a great deal of time, and she also had the moral
support of Mr. Gilmore. In addition, she'd contacted the Office of
the Attorney General.
Number 0853
DR. BEIRNE reported that she'd won that case, being awarded $25,000
by the jury, to repay her for what she'd put into the car, plus
attorneys fees and fixing up other cars for transportation, and so
forth. Her interest in this bill arises from the fact that even
after judgment, it took two years to work it through the system.
As soon as this individual had realized he wouldn't win, he'd
divested himself of all his earnings, funds and accounts.
DR. BEIRNE said the jury, in its wisdom, had asked the judge
whether this man could resell the car if he got it back, since Dr.
Beirne hadn't wanted it; the judge had said yes, he could resell
it. "So, they gave the car to me, for what it's worth, because
they didn't want him to have it," she noted.
DR. BEIRNE indicated the chance of collecting anything once a case
is settled is almost nil if the defendant has been working the
system for a long time. "Also, you can't stop them, under the
present law, from going out and doing it, even without a business
license," Dr. Beirne said. She noted that some of these issues are
addressed in the bill, including the increase to $500 and the
ability of a person to obtain an injunction prohibiting a seller or
leaser to continue to engage in the unlawful act; she believes
these will be of value.
Number 0983
DR. BEIRNE said, however, she believes AS 45.50.537 will probably
be of the greatest assistance to some who chooses to pursue it. It
appears that there will be some financial assistance, as long as it
is not a frivolous case.
DR. BEIRNE advised members that in the process, she'd learned a
great deal. It appears that many people pick up salvaged vehicles;
some had testified on behalf of the man who sold her the car. As
for "owner beware," she believes it is difficult for even fairly
astute average citizens to determine when they are being
fraudulently involved. Dr. Beirne would like to see the bill pass,
as she believes some of the relief would be helpful.
Number 1050
STEPHEN CONN, Executive Director, Alaska Public Interest Research
Group (AKPIRG), testified via teleconference from Anchorage. He
stated, "I think Representative Dyson is doing us all a major
service by this bill. As you may know, we have tracked the state
of consumer protection for at least a decade at AKPIRG. We just
completed a research report, and there is no question that the
current state of affairs is that the private citizen must be armed
with the legal resources to go forward, if they do have the guts
and the stamina, as Dr. Beirne had, not only on her own behalf but
to deal with a person who, as she indicated, has been selling
hundreds of these vehicles to unsuspecting consumers, "unbonded,
unlicensed, cheating the honest car dealer as much as the honest
consumer." Had Dr. Beirne had private injunctive relief, as set
forth in the bill, she could have stopped this guy cold.
MR. CONN indicated that while the state was once the chief consumer
protector, with vast resources, now people like Dr. Beirne carry
the torch for all consumers. He applauded the sponsor for coming
up with a simple, easy bill that is carefully crafted to allow
people like Dr. Beirne to go forward and get some justice for
herself and others in the marketplace.
Number 1172
CHAIRMAN ROKEBERG welcomed Representative Croft to the table. He
called on Les Gara and Jim Forbes to testify via teleconference,
but he was informed that they'd had to leave. He noted that Dr.
Beirne was a former member of this body.
Number 1225
RICK GILMORE testified via teleconference from Anchorage as a
private citizen. He had formerly been president of the Better
Business Bureau of Alaska, for four years, during which time they
saw numerous egregious cases. He indicated he'd like to throw his
full support behind this bill. He commended Daveed Schwartz and
his staff for their work despite inadequate funding. He believes
this common sense bill can return some power to consumers.
MR. GILMORE referred to comments about due diligence and mentioned
the billions of dollars in telemarketing fraud yearly. He stated,
"These guys are very, very well educated in what they do and how to
take advantage of people." While he agrees education is needed,
these perpetrators will prosper and bilk Alaskans out of millions
of dollars a year without legislation such as this.
Number 1283
REPRESENTATIVE RYAN restated his beliefs about due diligence and
personal responsibility.
MR. GILMORE replied that he wasn't denying that at all. However,
having dealt with many of these "bad guys" over the years, he'd
found they are very, very sophisticated in what they do; in some
cases, even the most prudent people could fall into their pattern
of fraud.
Number 1323
REPRESENTATIVE COWDERY asked Mr. Gilmore to comment on senior
citizens in Anchorage being vulnerable to this type of thing.
MR. GILMORE indicated that happens nationwide. For example, he'd
dealt with an 83-year-old Ketchikan woman who'd been bilked out of
her entire life savings, more than $87,000, by a Las Vegas
telemarketing company over a three-year period. Unfortunately,
she'd passed away; her daughter discovered the fraud and reported
it to the Better Business Bureau. Mr. Schwartz and Mr. Gilmore had
worked with the attorney general's office in Nevada, which was
going after this guy. "But unfortunately, they told us up-front
that because the woman was deceased and the fact that they could
find no assets for this guy, there wasn't much recourse," he said.
Number 1374
CHAIRMAN ROKEBERG requested Mr. Gilmore's opinion about the need
for this law and the ability of the Better Business Bureau to
adequately protect consumers in Alaska.
MR. GILMORE said he wasn't trying to toot his own horn, but much of
that has been lost since he is no longer there. He doesn't know
what direction the organization is now taking. He suggested that
Mr. Schwartz might be able to answer that.
Number 1407
MR. SCHWARTZ pointed out that the Better Business Bureau, for all
of its fine efforts, is not an enforcement agency. It can try to
persuade businesses to resolve consumer complaints, but if the
businesses don't want to resolve them, nothing short of enforcement
will cause a violation of the law to be corrected. He cited a
recent case in which he'd obtained a permanent injunction;
consumers had been totally fooled by a local Anchorage tire and
auto parts retailer who sold, as new tires, hundreds of used tires
covered with new rubber on the treads and sidewalls. Although the
consumers carefully shopped around to different locations for the
best price and quality, no amount of care on their part would have
clued them in. "So, we had to step in and enforce the law, and we
actually did; and we're getting refunds for over 150 people and
over $50,000 in refunds," he stated. That is an example where the
Better Business Bureau wouldn't have been able to get that kind of
comprehensive relief for consumers.
Number 1499
MR. GILMORE reported that in addition to working with the Office of
the Attorney General and helping to identify some of these
egregious things, they'd tried to educate people. But because they
only had offices in certain parts of the state, the scope was very
limited. He believes that should be taken into consideration.
Number 1549
PEGGY MULLIGAN, Capital City Task Force Member, American
Association of Retired Persons (AARP), came forward to testify,
advising members that she would provide her written testimony and
an AARP model bill. Referring to Representative Ryan's "100 eyes"
comment, she said they'd received $20,000 from the national AARP
and money from the western region, which they planned to use for
educational purposes, their top priority activity for the summer.
MS. MULLIGAN stated, "We do support House Bill 203. Since the
Department of Law's Consumer Protection Section was eliminated in
the late 1980s, Alaskan consumers have grown increasingly
vulnerable, costing an estimated $10 million a year. We feel that
this bill empowers Alaskans to fight back fraud, and it also
empowers citizens to be able to attract attorneys. We intend to
spend the summer educating seniors and other Alaskans of current
fraud practices in the state, collect evidence of fraud attempts in
the state. We'll work with other groups to help Alaskans become
aware of telemarketing and consumer fraud and such other
activities, as may seem appropriate."
MS. MULLIGAN continued, "I know that Representative Ryan thinks
that it's strange that people can be conned into a telemarketing
fraud. However, they are very sophisticated, and it is not always
that easy to identify. One of the things they suggest is that in
the first minute of a call, you insist that the caller give his
name, the company he represents, what he is selling, what the item
costs, the telephone number, the fax number, the location and the
identity of this company. And I think that if you did that, if we
can educate people to do that, in many times, you will see that who
you have on the line is not ... an honest person." She concluded
by saying the AARP certainly supports this bill, as well as
Representative Croft's sponsor substitute for HB 49.
Number 1682
CHAIRMAN ROKEBERG commented that he is a member of the AARP. He
asked whether anyone else wished to testify, then announced he
wasn't closing the public hearing. He stated his belief that it is
an excellent bill in its intent; however, he is uncomfortable with
some provisions. His biggest concern is that although this gives
the right to citizens to protect themselves, he sees a glaring
potential for abuse. He asked Mr. Schwartz and Representative
Croft to address that. Referring to Representative Ryan's
comments, he said it is sometimes difficult to draw the line
between a bad decision and what is fraudulent. He noted the
previous requirement of having a demonstrable loss and suggested
they were lowering the proof of damage or potential damage. He
believes there is a need for that but it still concerns him.
Number 1788
MR. SCHWARTZ responded that he doesn't anticipate any abuse of the
consumer protection enforcement based upon this bill. Some of
these provisions are not unlike provisions available in other
states, and he hasn't seen the kind of abuse that one might fear.
It would still take a lot of effort to sue under the consumer
protection act, and any attorney who would seek to sue under the
consumer protection act is going to have to meet the burden of
proof established by the Alaska Supreme Court in State vs. O'Neill
Investigations and its "progeny."
MR. SCHWARTZ said he believes Alaska case law has set some
standards. In addition, the consumer protection statute itself
says the courts are to be guided by the decisions of the federal
trade commission. There is a huge body of well-settled law under
the federal trade commission act concerning what constitutes an
unfair and deceptive act or practice. Therefore, attorneys suing
under this particular statute will be held to that burden of proof
and still be put to the test, and it will not be a "slam-dunk" case
or a lowering of standards of burdens of proof in order to make
that a violation. "What it does do is it encourages more private
citizens to enforce their rights through the consumer protection
act in an area in which, indeed, the state's resources are not what
they once were," he concluded.
Number 1881
CHAIRMAN ROKEBERG asked Representative Croft to respond to the
concerns he himself had raised about potential abuse of the powers
given to an individual to bring a cause of action without any loss.
For example, would it be up to the courts to determine first
whether the activity was unfair? Was there a statutory burden to
ensure the activity was in fact unfair or deceptive?
REPRESENTATIVE CROFT asked whether that was the main concern.
CHAIRMAN ROKEBERG indicated it was that for starters.
Number 1926
REPRESENTATIVE CROFT explained that there is a rather heavy burden
to show fraud. He asked Mr. Schwartz to correct any misstatements,
then indicated one must show that the person knew, or should have
known, that something wasn't as it was represented. Fraud is
usually one of the most difficult things to show in civil actions.
The provision for a minimum amount of damage and removing the
ascertainable loss is to protect when there have been all the
elements of fraud, but without a physical loss. Representative
Croft mentioned Dr. Beirne's case. He said even if there is no
physical loss, one should be able to stop the action and, in some
cases, punish it.
Number 2000
MR. SCHWARTZ said when he'd mentioned the unwanted telephone
solicitation section of the consumer protection act and how it had
been amended, Representative Croft was out of the room. He
restated that that section of our statute allows a person who has
a black dot next to his or her name in a residential telephone
directory to have a cause of action under the consumer protection
act if hounded by a telemarketer. Even if that consumer makes no
purchase, he or she is aggrieved under the consumer protection act,
despite having suffered no ascertainable loss of money or property.
Under this bill, that consumer would be allowed to recover
statutory damages of $500 per violation, because there were no
actual damages.
MR. SCHWARTZ pointed out that a person seeking an injunction under
Section 4 would still have to meet the burden of proof for
obtaining injunctive relief, showing irreparable harm and a
probability of success on the merits. That person would be held to
the standards of proof established under Alaska case law, which are
not always easy to meet, as a judge will look at the evidence very
closely before enjoining what looks to be unlawful conduct.
Number 2078
CHAIRMAN ROKEBERG asked what statutory protections a business
person has from a frivolous action, either for injunctive relief or
as a further cause of action for damages.
MR. SCHWARTZ said currently, a business person who is on the wrong
end of a lawsuit but who prevails can obtain reasonable attorneys
fees and costs. Under this bill, even, a business that is the
victim of a frivolous lawsuit could still obtain reasonable
attorneys fees and costs under the court rules and case law. That
is one significant protection that our system has provided.
MR. SCHWARTZ stated, "I think there's a real disincentive on the
part of consumers to bring an action that is going to appear to be,
to an attorney, frivolous. I think there's even a disincentive
right now to bring meritorious actions, because of the way in which
the law is worded, which doesn't provide a lot of incentive for
private litigation."
Number 2138
CHAIRMAN ROKEBERG referred to the added section for attorneys fees
and costs. He asked whether Mr. Schwartz was suggesting that if
they added "defendant" along with "plaintiff," that is the existing
case. He asked, "Or would that be necessary to give both parties
equal footing as far as whoever prevailed should get the award?"
MR. SCHWARTZ indicated the law is currently worded so that the
prevailing party can obtain reasonable attorneys fees and costs.
Number 2146
CHAIRMAN ROKEBERG asked why this is in the bill, then.
MR. SCHWARTZ explained that this bill would change the existing
state of affairs so that a prevailing plaintiff could get not only
reasonable Rule 82 fees, which amount to about 20 percent of the
attorneys fees; rather, the plaintiff could get full reasonable
attorneys fees and costs when prevailing over a defendant.
However, the plaintiff would only be subjected to paying the
defendant's attorneys fees if the plaintiff lost and the suit was
shown to be frivolous.
MR. SCHWARTZ noted that this amendment to the attorneys fees and
costs section of the consumer protection statute would bring Alaska
in line with the vast majority of states' consumer protection acts
now. According to the national consumer law center, Mississippi is
the only other state with an attorney fee statute similar to
Alaska's, in which a plaintiff losing a consumer protection case
would have to pay reasonable attorneys fees and costs to a
defendant.
Number 2205
CHAIRMAN ROKEBERG said he finds it disturbing. He asked, "But
you're suggesting this language is consistent with the norm
nationally?"
MR. SCHWARTZ said that is correct. He stated, "Not only did I
survey the other statutes, but I did check with the national
consumer law center, and that is indeed the case."
Number 2223
REPRESENTATIVE CROFT referred to earlier discussion of vexatious
litigation and said, "Right now, for a frivolous lawsuit, there are
substantial penalties. You're right: There's more coming."
CHAIRMAN ROKEBERG said, "For attorneys, not plaintiffs or
defendants."
Number 2244
REPRESENTATIVE CROFT replied that under Civil Rule 11, the party is
responsible for them as well; it is anyone who signs the pleading.
This norm is appropriate because these are, by definition, injured
people with a claim that they've been defrauded. They are often at
battle with organizations that are difficult to find or difficult
to isolate. While he appreciated the concern for the legitimate
business that could be on the wrong end of this, he emphasized that
the burden of proving fraud is extremely difficult. It is not like
a normal negligence suit. It requires an intentional act to
defraud someone. Therefore, all the hurdles are there in the
standard for the injunction or the standard for criminal fraud.
Number 2308
CHAIRMAN ROKEBERG responded that it is the charge of this committee
to make sure that the commerce and labor activities of the state
are carried out in due course, without anything infringing upon
them. He said some of his questions may more properly belong in a
judiciary committee. However, his primary concern is the level
playing field, "and the ability and the effect on business activity
without some countervailing force."
CHAIRMAN ROKEBERG asked Mr. Schwartz: If a suit was found to be
frivolous and the defendant prevailed, would the award of fees be
based on Rule 82 or be for full fees?
Number 2363
MR. SCHWARTZ replied that if the defendant were able to show that
the suit was frivolous, then according to Section 4 of the bill,
which amends the consumer protection statute, Rule 82 attorneys
fees and costs would probably be awarded.
CHAIRMAN ROKEBERG suggested there wasn't a level playing field.
MR. SCHWARTZ pointed out that consumers generally don't have a
level playing field when it comes to dealing with businesses that
are out to deceive them.
CHAIRMAN ROKEBERG said he was talking about a finding of
"frivolousness," looking at the language of the bill.
MR. SCHWARTZ replied that he wasn't sure what else to add, other
than that he believed Rule 82 attorneys fees would result if the
defendant could show that the plaintiff's suit was frivolous.
Number 2419
CHAIRMAN ROKEBERG stated his understanding that a plaintiff who
prevailed would receive full attorneys fees. However, if there was
a finding of a frivolous lawsuit, the defendant would only be
awarded Rule 82 legal fees. He asked whether that is correct.
MR. SCHWARTZ said yes and added that the rationale is to encourage
more private litigation under the consumer protection act. There
has not been a lot of private litigation under the consumer
protection act thus far.
CHAIRMAN ROKEBERG submitted that they were giving a tool to
consumers to bring their private cause of action, an enormous
expansion of the ability of the consumers to protect themselves and
the rest of the public. "And I agree with the premise of the bill
in that regard," he said.
TAPE 97-48, SIDE B
Number 0006
CHAIRMAN ROKEBERG continued, stating his belief that they are
granting a significantly greater power to the plaintiff than to the
defendant. He specified that he wasn't looking at the legal
aspects but at "the basis of the bill before us right now." He
said his concern was directed more to the sponsor.
MR. SCHWARTZ commented that the defendant could also bring a
lawsuit for abuse of process if the plaintiff was found to have
brought a frivolous lawsuit, which may be another protection for a
defendant. He next referred to the concept of one competitor
trying to gain an unfair advantage over another. He said
businesses have not often invoked the consumer protection act as a
tool to fight other businesses; he didn't know whether this would
encourage that or not. However, he suspects that the vast majority
of litigation under this statute would continue to be on the part
of end-use consumers who are purchasing products from retailers,
rather than a lawsuit by one business against another.
CHAIRMAN ROKEBERG suggested in the dog-eat-dog business world,
additional tools without "sideboards" on them could be misused for
business purposes, not just consumer protection purposes.
Number 0079
REPRESENTATIVE GENE KUBINA noted that Chairman Rokeberg is on the
House Judiciary Standing Committee. He asked whether perhaps that
issue could be addressed there.
CHAIRMAN ROKEBERG suggested there are other things they could
address there. He said if the sponsor looked at this and could
overcome his concerns, he'd be happy to bring it back up. He
agrees with the concept of the bill. But while he could support
giving a tool to the public, he wants to ensure that it is drafted
so it has no deleterious effect on business. "We want to get the
rascals; we don't want to interrupt commerce," he said.
CHAIRMAN ROKEBERG stated his understanding that Alaska has no
vexatious litigation statute. He said, "If Representative Croft
wants to bring to this committee some examples of frivolous
activities being in the courts, this committee would be real happy
to see it actually happen. If you ... cite me some examples, then
I'm going to be a lot more comfortable." He suggested the bill
should speak to that more specifically and give a little more
balance, at the very least an amendment to provide reasonable fees
for both parties if the lawsuit was found to be frivolous or
perhaps intended to infringe upon commerce, which would be even
beyond frivolous. He noted that many times cases are brought with
the hope of settlement, which he characterized as a form of legal
extortion. (HB 203 was held over.)
ADJOURNMENT
Number 0219
CHAIRMAN ROKEBERG adjourned the House Labor and Commerce Standing
Committee meeting at 5:55 p.m.
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