Legislature(1995 - 1996)
02/14/1996 08:07 AM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE RESOURCES STANDING COMMITTEE
February 14, 1996
8:07 a.m.
MEMBERS PRESENT
Representative Joe Green, Co-Chairman
Representative William K. "Bill" Williams, Co-Chairman
Representative Scott Ogan, Vice Chairman
Representative Alan Austerman
Representative John Davies
Representative Pete Kott
Representative Don Long
Representative Irene Nicholia
MEMBERS ABSENT
Representative Ramona Barnes
COMMITTEE CALENDAR
CS FOR SENATE BILL NO. 190(RES) am
"An Act establishing a residency requirement for auctions of state
land."
- PASSED CSSB 190(RES)am OUT OF COMMITTEE
*HOUSE BILL NO. 357
"An Act relating to the issuance of hunting, trapping, and
noncommercial fishing licenses, tags, and permits and to residency
for fish and game purposes; and providing for an effective date."
- PASSED CSHB 357(RES) OUT OF COMMITTEE
*HOUSE BILL NO. 386
"An Act relating to cruelty to animals and the provision of food
and water to confined or impounded animals."
- PASSED CSHB 386(RES) OUT OF COMMITTEE
(* First Public Hearing)
PREVIOUS ACTION
BILL: SB 190
SHORT TITLE: RESIDENCY REQUIREMENT/STATE LAND AUCTION
SPONSOR(S): SENATOR(S) TAYLOR, Leman, Kelly, Pearce, Salo, Sharp,
Green, Lincoln, Halford, Torgerson, Miller, Donley;
REPRESENTATIVE(S) Grussendorf, Williams
JRN-DATE JRN-PG ACTION
12/29/95 2056 (S) PREFILE RELEASED - 12/29/95
01/08/96 2056 (S) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2056 (S) RESOURCES
01/30/96 2250 (S) RES RPT CS 5DP 1AM SAME TITLE
01/30/96 2250 (S) ZERO FISCAL NOTE TO SB (DNR)
02/02/96 2278 (S) ZERO FISCAL NOTE TO CS (DNR)
02/05/96 2304 (S) RULES TO CALENDAR 2/5/96
02/05/96 2305 (S) READ THE SECOND TIME
02/05/96 2305 (S) RES CS ADOPTED UNAN CONSENT
02/05/96 2305 (S) COSPONSOR(S): SALO, SHARP, GREEN
02/05/96 2305 (S) LINCOLN, HALFORD, TORGERSON
02/05/96 2305 (S) TORGERSON, MILLER, DONLEY
02/05/96 2305 (S) AM NO 1 ADOPTED UNAN CONSENT
02/05/96 2305 (S) ADVANCED TO THIRD READING UNAN CON
02/05/96 2305 (S) READ THE THIRD TIME CSSB 190(RES) AM
02/05/96 2306 (S) PASSED Y20 N-
02/05/96 2310 (S) TRANSMITTED TO (H)
02/07/96 2640 (H) READ THE FIRST TIME - REFERRAL(S)
02/07/96 2640 (H) RESOURCES
02/07/96 2667 (H) CROSS SPONSOR(S): GRUSSENDORF
02/09/96 2708 (H) CROSS SPONSOR(S): WILLIAMS
02/14/96 (H) RESOURCES 8:00 AM CAPITOL 124
BILL: HB 357
SHORT TITLE: RESIDENCY REQUIREMENT:FISH & GAME LICENSE
SPONSOR(S): REPRESENTATIVE(S) OGAN
JRN-DATE JRN-PG ACTION
12/29/95 2359 (H) PREFILE RELEASED
01/08/96 2359 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2359 (H) RESOURCES, FINANCE
02/14/96 (H) RES AT 8:00 AM CAPITOL 124
BILL: HB 386
SHORT TITLE: CRUELTY TO ANIMALS
SPONSOR(S): REPRESENTATIVE(S) GRUSSENDORF, Finkelstein, B.Davis
JRN-DATE JRN-PG ACTION
01/05/96 2367 (H) PREFILE RELEASED
01/08/96 2367 (H) READ THE FIRST TIME - REFERRAL(S)
01/08/96 2367 (H) RESOURCES, JUDICIARY
02/14/96 (H) RES AT 8:00 AM CAPITOL 124
WITNESS REGISTER
JOE AMBROSE, Legislative Assistant
to Senator Robin Taylor
Alaska State Legislature
Capitol Building, Room 30
Juneau, AK 99801
Telephone: (907) 465-3873
POSITION STATEMENT: Testified on SB 190.
RON SWANSON, Deputy Director
Division of Lands
Department of Natural Resources
3601 C Street
Anchorage, AK 99501
Telephone: (907) 269-8503
POSITION STATEMENT: Testified on SB 190.
MAJOR BUELL RUSSEL, Deputy Director
Division of Fish and Wildlife Protection
Department of Public Safety
5700 East Tudor Road
Anchorage, AK 99507-1225
Telephone: (907) 269-5682
POSITION STATEMENT: Testified in support of HB 357.
CAPTAIN RICHARD GRAHME
Division of Fish and Wildlife Protection
Department of Public Safety
5700 East Tudor Road
Anchorage, AK 99507-1225
Telephone: (907) 269-5589
POSITION STATEMENT: Testified in support of HB 357.
PAUL JOHNSON
P. O. Box 22
Elfin Cove, AK 99825
Telephone: (907) 789-0944
POSITION STATEMENT: Testified in support of HB 357.
EDDIE GRASSER
Alaska Outdoor Council
4506 Robbie Road
Juneau, AK 99801
Telephone: (907) 463-3830
POSITION STATEMENT: Testified in support of HB 357.
REPRESENTATIVE BEN GRUSSENDORF
Alaska State Legislature
Capitol, Room 415
Juneau, AK 99801
Telephone: (907) 465-3824
POSITION STATEMENT: Testified on HB 386.
TERRI TIBBETT, Legislative Staff
to Representative Ben Grussendorf
Alaska State Legislature
Capitol Building, Room 415
Juneau, AK 99801
Telephone: (907) 465-3824
POSITION STATEMENT: Available for questions on HB 386.
JERRY LUCKHAUPT, Legislative Counsel
Division of Legal Services
Legislative Affairs Agency
130 Seward Street, Suite 409
Juneau, AK 99801-2105
Telephone: (907) 465-2450
POSITION STATEMENT: Testified on HB 386
MICHAEL GATTI, Borough Attorney
Matanuska-Susitna Borough
350 East Dahlia Avenue
Palmer, AK 99645-6488
Telephone: (907) 745-4801
POSITION STATEMENT: Testified in support of HB 386.
EDNA ANDERSON
Farm Bureau
P. O. Box 441
Homer, AK 99603
Telephone: (907) 235-8433
POSITION STATEMENT: Has concerns with HB 386.
JIM JENNINGS
422 NRA Lane
Fairbanks, AK 99709
Telephone: (907) 479-6598
POSITION STATEMENT: Has concerns with HB 386.
BEVERLY NESTER
5465 Chena Hot Springs Road
Fairbanks, AK 99712
Telephone: (907) 488-6356
POSITION STATEMENT: Has concerns with HB 386.
DIXIE JENNINGS
422 NRA Lane
Fairbanks, AK 99709
Telephone: (907) 479-6598
POSITION STATEMENT: Has concerns with HB 386.
DAN LaSOTA
Fairbanks North Star Borough
693 Manchester Loop
Fairbanks, AK 99712
Telephone: (907) 479-0650
POSITION STATEMENT: Testified in support of HB 386.
ANNE CARPENETI, Attorney
Criminal Division
Department of Law
P. O. Box 110300
Juneau, AK 99811-0300
Telephone: (907) 465-3600
POSITION STATEMENT: Testified in support of HB 386.
ACTION NARRATIVE
TAPE 96-16, SIDE A
Number 000
CO-CHAIRMAN JOE GREEN called the House Resources Committee meeting
to order at 8:07 Members present at the call to order were
Representatives Green, Ogan, Austerman, Davies, Kott and Long.
Representatives Barnes, Nicholia and Williams were absent.
SB 190 - RESIDENCY REQUIREMENT/STATE LAND AUCTION
Number 044
JOE AMBROSE, Legislative Assistant to Senator Robin Taylor,
testified on behalf of Senator Taylor, sponsor of CSSB 190 (RES)am:
"Senate Bill 190 was introduced to correct a situation which
allowed ten percent of the state land sold at the first public
auction since 1991 to be purchased by non-residents. This in a
state where only about one percent of the land is in private
ownership.
MR. AMBROSE continued, "Current law restricts the homestead program
to Alaska residents, but no such provision is made for the sale of
other land, sold at auction. As a result, of the 204 parcels
actually sold in 1995, 21 went to out-of-state bidders. In eleven
cases, these nonresidents beat out otherwise qualified state
residents.
MR. AMBROSE stated, "Imagine how it must feel to the resident of
Fairbanks who submitted a bid on state land, only to be beat out by
a resident of Washington state by $61.80. Or the Wasilla couple
who lost their chance at owning a piece of Alaska to a Minnesota
woman by $442? Or the Anchorage woman who lost out to a man from
Michigan by $214?
MR. AMBROSE proceeded, "To add insult to injury, the availability
of state land to out-of-state residents was actually promoted on
the Internet by the Alaska Tourism Marketing Council. A Council
spokesman said they were trying to promote the "Alaska mystique."
Maybe the Council thinks there is something mystical about the
shortage of private land in Alaska, but the average Alaska is more
frustrated than mystified.
MR. AMBROSE concluded, "SB 190 would restrict participation in the
public auction of state land to people who have been residents of
the state for at least one year prior to the sale. The bill was
amended to place no such restriction on the disposal of commercial,
industrial or agricultural land. I don't believe we want to
inhibit those who would purchase land for growth and development.
But the sale of recreational and residential property, like the
homestead program, should be restricted to folks who have already
made an investment by residing in this great state."
Number 243
REPRESENTATIVE JOHN DAVIES appreciated the motivation behind SB
190. He said it would be frustrating to get beat out by $61.00,
but equally frustrating if it were another Alaskan resident that
won by $61.00 as well.
REPRESENTATIVE DAVIES said that allowing outsiders to buy land in
Alaska is not necessarily detrimental in every instance, and he
alluded to a former Alaskan wanting to participate.
REPRESENTATIVE DAVIES asked what the overall percentage was in this
particular land sale. What was the percentage of Alaskans getting
in versus the percentage of people outside of Alaska?
Number 378
MR. AMBROSE replied, right at 10 percent went outside.
MR. AMBROSE pointed out that this would only restrict the sale on
the first go-around. The state has gone to an auction system
rather than lotteries because it is less expensive to manage and
the minimum bid is the assessed value. Property that is not sold
in the first round becomes an over-the-counter sale to anyone who
wants to walk in and buy it. So, that former Alaskan would have
the opportunity to walk in to the Department of Natural Resources
and purchase property.
MR. AMBROSE stated that this year, since the 1991 Mental Health
Lands Trust dispute, is the first year that the state has had a
sale. He said the bill restricts the land sale, on the first go-
around, to Alaska residents and if the property is not sold then it
becomes available to anyone who wants to buy it.
Number 455
CO-CHAIRMAN GREEN asked if the state of Alaska financially
benefitted from outside competition.
MR. AMBROSE stated that the impact is so minimal the Department of
Natural Resources placed a zero fiscal note on SB 190.
Number 498
REPRESENTATIVE DON LONG asked for clarification on the one-year
residency requirement.
MR. AMBROSE responded that the one-year residency requirement seems
to be an acceptable standard. The sponsor would argue that the
state does have an interest in restricting the sales, at least on
the first go-around.
Number 572
REPRESENTATIVE SCOTT OGAN expressed appreciation that agricultural
and industrial lands are excluded from the legislation.
Number 610
REPRESENTATIVE DAVIES addressed Representative Long's question
about the one-year residency requirement asking if Mr. Ambrose'
answer also dealt with the equal protection concerns of the people
of the United States.
MR. AMBROSE responded by reading a memorandum from Jack Chenoweth,
Legislative Legal Services, "I am required to transmit with the
bill a memo cautioning that the bill, both as it was introduced and
as offered in the Senate Resources Committee, MAY present
constitutional questions. Objection may be taken either under
privileges and immunities, Article IV, Section 2, U. S.
Constitution, or with reference to the one year durational
residency requirement under the equal protection clause. It is
hard to say where the court will come out on this. On the
privileges and immunities questions, the U.S. Supreme Court has
been inclined to reject state efforts to withhold privileges for
nonresidents and the justification for the regulation involved
nonresident economic or employment opportunities and the right to
travel, but has been less demanding when the state has acted to
protect for the benefit of its residents as against nonresidents.
State institutions that were established and are supported
primarily for the benefit of state residents. Similarly, the
validity of durational residency requirements will depend on the
courts trying to find whether the legislation strikes a proper
balance between legitimate state interests and the classification
it has drawn. I cannot provide definitive advice on these points,
but I am sending this memo along only to note potential (indisc)."
Number 744
REPRESENTATIVE DAVIES said that part of the justification for this
bill is the stated possibility of land available to Alaskans. Yet
you have just argued that there is a lot of land available over-
the-counter. He said those are contradictory positions.
MR. AMBROSE said the property that becomes available over-the-
counter because it was not sold at auction would indicate that it
is less desirable. The more desirable pieces go first at auction.
Number 841
REPRESENTATIVE ALAN AUSTERMAN asked the residency requirement for
homesteaders.
MR. AMBROSE replied that he was not certain.
Number 872
RON SWANSON, Deputy Director, Division of Lands, Department of
Natural Resources said the homestead and homesite residency
requirement is one year.
Number 880
REPRESENTATIVE AUSTERMAN asked if the homestead residency
requirement had been tried in court.
MR. SWANSON responded that the homestead resident requirement had
not been challenged in court. He said the only time a residency
requirement had been challenged was in the early 1970s. The Kenai
Peninsula Borough restricted their land sales to only borough
residents. That was challenged in court and upheld.
Number 931
MR. SWANSON said he would elaborate on Mr. Ambrose' testimony. The
state offered 417 parcels for sale in October, 1995. 383 were
subdivision residency or recreational lots, 34 were agricultural.
205 of those were sold at the auction and 21 of those went to non
Alaskans. Of those 21, nine lots were not even bid on by Alaskan
residents.
MR. SWANSON said of the 53 homestead parcels offered in the state
lottery, the department received 4,133 applications for those
parcels.
MR. SWANSON said starting in January 1996, the lots that were not
sold at the auction, 214 were put up over-the-counter. 14 of those
have been purchased by non Alaskans out of 122 applications. He
said as of today, we still have 132 of those parcels available for
sale.
Number 1010
MR. SWANSON said a total of $4.2 million total was brought in for
land sales this year.
Number 1020
CO-CHAIRMAN GREEN said, on those recycled tracts, does the
department maintain the requirement that the appraised value is the
minimum bid.
MR. SWANSON responded that the state sells at the fair market
value, the appraised value.
Number 1038
REPRESENTATIVE DAVIES asked Mr. Swanson if he had any concerns
about the passage of SB 190. Would it have a detrimental affect on
being able to sell the lands that you are offering?
MR. SWANSON replied that considering the state only sold 21 of the
417 parcels to non Alaskans and the lots that are available over
the counter, he does not see a problem. He said the 417 parcels
offered by the state are basically recycled lots. Parcels that
were foreclosed on or people just gave up on.
Number 1125
REPRESENTATIVE OGAN moved that CSSB 190(RES)am move from the House
Resources Committee with individual recommendations and attached
zero fiscal note. Hearing no objections, it was so ordered.
HB 357 - RESIDENCY REQUIREMENT:FISH & GAME LICENSE
Number 1163
REPRESENTATIVE OGAN said the HB 357 is a long overdue housekeeping
measure in Title 16 that deals with residency licensing privileges:
"HB 357 simplifies the enforcement of residency requirements for
hunting, trapping, and noncommercial fishing licenses. This
legislation will reduce the number of nonresidents who use
loopholes in current state residency laws to hunt, trap, and fish
Alaska's resources. After meeting and working diligently with the
Department of Law, Department of Fish and Game, Department of
Public Safety and Legislative Legal Services, this bill was drafted
to accommodate all the participants concerns addressed during those
discussions.
"The definition of residency was separated into subsections for
clarification purposes. In these subsection, you will note the
different changes that were made to better define the rules of
residency for Title 16 purposes.
"Also, passage of HB 357 could increase revenue annually by
thousands of dollars in relationship to current statistics of
nonresidents in terms of licenses, game tags and hunting fees for
guides."
REPRESENTATIVE OGAN said a major point of HB 357 is replacing the
language, "permanent place of abode" to "domicile" which makes it
clear that the legislature intended only those who are domiciled in
the state are entitled to residency licensing privileges.
Number 1286
CO-CHAIRMAN GREEN referred to the domicile language on page 3, line
14 and the language on page 3, lines 25 - 27 concerning military
personnel who have been stationed in Alaska. He asked why the
language "domicile" did not automatically qualify the military.
REPRESENTATIVE OGAN discussed the definition of residency and the
definition of domicile with Chairman Green.
MAJOR BUELL RUSSEL, Deputy Director, Division of Fish and Wildlife
Protection, Department of Public Safety, said he was available for
questions and deferred to Captain Grahme.
Number 1432
CAPTAIN RICHARD GRAHME, Division of Fish and Wildlife Protection,
Department of Public Safety, testified in support of HB 357 stating
that the division had worked on the bill over the past several
months with Representative Ogan and the departments of law and fish
and game. He said the definition of residency is of importance to
the department. It has caused problems in the past of prosecuting
cases and simply responding to what the state's residency
requirements are and what has to be done to meet those
requirements. It is not just a matter of enforcement, it is also
a matter of providing a service and answers to the public. He said
equally important to know is residency privileges of other states.
Number 1552
CAPTAIN GRAHME said in Section 16.05.940(c) and Section
16.05.940(26)(d) the branch of United States Coast Guard has been
added to the federal definition of military service.
Number 1573
REPRESENTATIVE DON LONG referred to page 4, line 3 and asked the
difference between one year and 12 consecutive months.
REPRESENTATIVE OGAN responded that an individual has to remain in
the state for 12 consecutive months.
REPRESENTATIVE AUSTERMAN explained that a fisherman might come to
Alaska and fish for five months and then return to Bellingham for
six months and then return to Alaska again for three months. That
fisherman considers himself a resident of the state of Alaska.
Number 1663
CO-CHAIRMAN GREEN noted the arrival of Co-Chairman Williams and
Representative Irene Nicholia.
Number 1710
REPRESENTATIVE OGAN said there is a description in Title 16, the
hunting regulations that explains the 12 consecutive months.
C0-CHAIRMAN GREEN stated that an individual can be outside the
state and travel to and from Alaska as long as domicile is
maintained in Alaska.
Number 1784
PAUL JOHNSON, Elfin Cove, agreed with the testimony of Major Russel
and Captain Grahme. He said, in our small communities in Southeast
Alaska, we have a continuing problem with individuals taking
advantage of state residency. HB 357 cleans things up and it is
enforceable.
Number 1831
EDDIE GRASSER, Alaska Outdoor Council, testified in support of HB
357 stating that the bill will close some loopholes and streamline
the process on residency requirements.
Number 1863
REPRESENTATIVE DAVIES offered an amendment on page 3, line 31.
Strike the word "and" and change it to "or."
Number 1913
REPRESENTATIVE OGAN said he had no problem with the amendment.
Number 1937
CO-CHAIRMAN GREEN stated that the amendment was small but
significant. He asked if there were objections to the amendment.
Hearing no objection, it was so ordered.
Number 1988
REPRESENTATIVE AUSTERMAN moved that HB 357, as amended, move from
the House Resources Committee with individual recommendations and
attached zero fiscal note. Hearing no objection, CSHB 357(RES)
passed from the House Resources Committee.
HB 386 - CRUELTY TO ANIMALS
Number 2048
REPRESENTATIVE BEN GRUSSENDORF addressed the proposed committee
substitute for HB 386. He said the proposed changes offer
prosecutors a more workable statute. Changing "intentionally" to
"knowingly" lowers the state of mind the state must prove in
prosecuting a case. Changing the wording which describes the
animal's level of suffering offers more options under which to
prosecute and lowers the difficult standard which exists.
Number 2159
REPRESENTATIVE GRUSSENDORF discussed the term reckless. He said in
order to prove cruelty through neglect, current law requires that
the accused acted "recklessly" which means "a person is aware of
and consciously disregards a substantial and unjustifiable risk
that the result with occur."
Number 2198
REPRESENTATIVE GRUSSENDORF stated that the main thrust of the
proposed committee substitute for HB 386 is the penalty section.
He said a lot of local governments had contacted his office and
said they would like to have the power in regards to cruelty to
animals. He said Section 2 and Section 5 allow first and second
class boroughs to exercise this power.
REPRESENTATIVE GRUSSENDORF said there was some concern with Section
3 and Section 6 where some boroughs said they had ordinances that
they were operating under and might have to change what they are
doing. He offered a proposed amendment to take care of those
concerns:
Page 2, line 8: Delete "inconsistent with" and insert "more
stringent than."
Page 2, line 22: Delete "inconsistent with" and insert "more
stringent than."
Number 2297
REPRESENTATIVE GRUSSENDORF stated that his bill does not apply to
lawful hunting and trapping activities and clarified that his
intent is not to regulate, but just to be specific with the
prevention of cruelty to animals.
Number 2397
CO-CHAIRMAN GREEN asked for the adoption of Committee Substitute of
HB 386.C as the working document. Hearing no objection, it was so
ordered.
CO-CHAIRMAN GREEN asked the sponsor if he would like the Resources
Committee to move the amendment on page 2, lines 8 and 22.
Number 2450
REPRESENTATIVE AUSTERMAN moved to adopt the amendment to CSHB 386.
Hearing no objection, it was so ordered.
Number 2465
REPRESENTATIVE OGAN asked if the Iditarod Trail Committee or any
other dog racing association had contacted Representative
Grussendorf about this bill.
REPRESENTATIVE GRUSSENDORF asked his staff, Terri Tibbett, to come
forward.....(change tape)
TAPE 96-16, SIDE B
Number 000
TERRI TIBBETT, Legislative Staff to Representative Grussendorf,
responded that HB 386 is now before the Iditarod Trail Committee
and has not received an official endorsement but, unofficially, Mr.
Stan Hooley had expressed his support.
Number 039
MS. TIBBETT said the Alaska Animal Control Association also
supports HB 386.
Number 049
REPRESENTATIVE OGAN asked for more background information on the
introduction of this bill and the intent.
Number 122
REPRESENTATIVE GRUSSENDORF discussed with the committee the terms
of negligence, intent and preponderance of the evidence.
Number 153
REPRESENTATIVE LONG related a story about Polar Bears coming into
the City of Barrow and having to be chased away. He said people
complained about cruelty to the Polar Bears. He said when Polar
Bears come to town, they eat people, they are dangerous. He asked
if there is a distinction between wild and domesticated animals.
REPRESENTATIVE GRUSSENDORF said there is a distinction between wild
and domestic animals. He said unless we have a special permit, you
and I cannot have control over a wild animal.
Number 235
REPRESENTATIVE OGAN asked if criminal negligence was a misdemeanor.
He said he takes exception when the state will not pass a statute
making it criminally negligent to kill people but we are asking for
a statute to make it criminally negligent to kill animals. He said
he cannot support this bill and, therefore, put a higher priority
on an animal's life than a human's life.
Number 341
JERRY LUCKHAUPT, Legislative Counsel, Division of Legal Services,
Legislative Affairs Agency, said that Representative Ogan's
comments would be better addressed by the Department of Law. He
said Alaska has a criminally negligent homicide statute that
penalizes the killing of a person with criminal negligence in this
state, that is a Class E Felony. He expounded on criminal
negligence and Class E Felonies.
MR. LUCKHAUPT said that HB 386 reduces the requisite mental states
or cruelty to animals in the first degree from intentional conduct
to knowing conduct. In this case, it would be intentionally
inflicting severe physical pain or prolonged suffering on an
animal.
Number 509
REPRESENTATIVE AUSTERMAN felt that Representative Ogan's concern
was a separate issue and stated that he supports HB 386.
Number 540
MICHAEL GATTI, Borough Attorney, Matanuska-Susitna Borough, thanked
Representative Grussendorf for bringing the bill forward and stated
that it is generally a good bill. He said amending the standard
for establishing cruelty to animals is a good step forward because
these cases can be difficult to prosecute.
MR. GATTI referred to his letter of February 13 to Representatives
Ben Grussendorf and Scott Ogan outlining municipal concerns about
language in Sections 3, 4, 5 and 6 of HB 386. He said the bill
amends the animal control power that is set up by ordinance to
prohibit cruelty to animals. He said animal control regulations
includes a number of activities other than license, impound,
regulate, prohibit cruelty to, or disposition of animals. While
the language "prohibit cruelty to" is good language, a good
amendment would be to insert instead license, impound, regulate,
prohibit cruelty to those animals.
MR. GATTI said with respect to municipal powers, they are liberally
construed and you would not want to restrict municipal powers in a
particular area because they should have the discretion and
flexibility to deal with different geographical, social and
economic conditions. He said a good example is the Polar Bear
story. He said animal control in rural areas is much different
that animal control in Anchorage or even Mat-Su. You would not
want to undermine the principle that municipal powers are liberally
construed.
MR. GATTI said if you look at the various municipal animal control
codes you will find that not only do they regulate licensing,
impounding, cruelty and disposition of animals, but they are
concerned about barking dogs, sanitary enclosures, diseased
animals, animals near the street, kennel licensing, rabies
certificates, adoption, rabies control. If a municipality does not
follow the power through an election to make sure that it
encompasses all those activities, it could be limited from engaging
in those activities.
MR. GATTI suggested the word "regulate" be included in those
sections because that will allow municipalities more flexibility to
protect the public interest.
Number 780
MR. GATTI referred to subsection (e) of Sections 3 and 6. He felt
that subsection (e) is not needed because municipalities cannot
have criminal penalties more stringent than a misdemeanor. He said
Title 29, for second class boroughs, limits a municipal penalty for
misdemeanors to a $1,000 fine or 90 days in jail. He said that
municipalities do not have the jurisdiction to develop felony
offenses, and it is his understanding that the state would be
responsible for that. A municipality cannot have laws more
stringent than the state.
Number 859
CO-CHAIRMAN GREEN said that the next committee of referral is the
House Judiciary Committee. He said the legality issue might be
better addressed by House Judiciary.
Number 871
EDNA ANDERSON, President, Farm Bureau - Kenai Chapter, testified
from Homer saying that most of her questions had been addressed by
previous witnesses.
Number 887
JIM JENNINGS testified from Fairbanks that he has been involved
with animals for 25 years as a horseshoer. He said what you are
trying to do here is give boroughs authority without a vote of the
people of the boroughs. He said if there is a problem in the
borough, the borough has the ability to go to the vote of the
people. It may be costly, but the people are going to pay the bill
one way or the other.
MR. JENNINGS noted that nowhere in HB 386 does it call for a
veterinarian to make the diagnostic call on cruelty to animals.
He predicted that without the diagnostic call by a licensed
veterinarian, there could be litigation that could cost the borough
or the state financially. A licensed veterinarian is the only one
who can make a diagnostic call on an animal that will hold up in a
court of law.
Number 1026
BEVERLY NESTER testified from Fairbanks stating that the language
changes in HB 386 are very disturbing to her. The intent, as she
understands it, is to lower the standards of intent of cruelty so
as to more easily charge an accused and offer more options to
prosecute. She feels that if a person is negligent but does not
mean to cause harm, they should not be guilty of a crime and should
be given a chance to amend the problem without the harassment from
power groups.
MS. NESTER listed multiple concerns and talked about a concern with
selective enforcement and discrimination. She said all citizens
should be treated equally under the law including the people in
Juneau, Fairbanks, Anchorage, Barrow, Wainwright and Nome. She
said if the state foots the bill in unorganized boroughs, it should
also foot the bill in the first and second class boroughs. She
recommended that any amendments require a vote of the people rather
than an ordinance of the borough.
Number 1162
DIXIE JENNINGS testified that her concerns echo the two previous
speakers and she had nothing new to add.
Number 1199
DAN LaSOTA, Assemblyman, Fairbanks North Star Borough, distributed
a memorandum dated September 7, 1995 outlining a history of the
borough's authority to prosecute cruelty to animals. A second
class borough can exercise powers that are approved by the voters
and the legislature.
MR. LaSOTA said beginning in 1965, the voters approved dog control
and, in the ensuing years, various powers were granted by the state
through statute.
MR. LaSOTA talked about a recent incident involving an owner and
a pig. The judge ruled that in a 1978 borough ordinance, the
borough adopted more powers than it was entitled to. Specifically,
in relation to cruelty to animals, the judge ruled that the borough
only has the power to prohibit cruelty to dogs. Cats, pigs and
snakes are out of the borough's bounds.
MR. LaSOTA stated that further advice from their attorney indicated
that there were two options for the borough's cruelty ordinance: go
to the voters or have the legislature grant those powers.
MR. LaSOTA said the FNSB intent is to get back those powers and the
borough passed resolution 95-062 relating to cruelty to animals.
MR. LaSOTA said that by asking the state to grant these additional
powers, there will be no additional fiscal impact. He said the
proposed committee substitute for HB 386 is the best vehicle to
attain what the borough needs.
Number 1442
REPRESENTATIVE DAVIES clarified that the operative word in the bill
is "may" and does not require any municipality to adopt this. It
just allows them to adopt it.
MR. LaSOTA said that his intent is, if legislation passes during
this session, to bring forth an ordinance and hold lengthy public
hearings. If the legislation does not pass, his intention is to
put it on the ballot.
Number 1505
ANNE CARPENETI, Attorney, Criminal Division, Department of Law,
testified that the department supports the committee substitute for
HB 386. She clarified that this is still a crime and if the state
brings charges under this statute, we are obliged to prove our case
beyond a reasonable doubt in order to obtain a conviction. She
said by changing the mental states required for the state to prove
its case, you are still requiring the state to prove that the
defendant who is charged with the offense acted, at least, under
paragraph 2, with criminal negligence which is different from the
standard in civil negligence. She said this is found in the
definition section of Title 11. A criminal negligence is a gross
deviation from the standard of reasonable care. Civil negligence
is less of a deviation. This bill does not reduce the standard of
burden of proof in terms of reducing it beyond any state of a
crime. The state is obliged to prove, beyond a reasonable doubt,
that the person acted with criminal negligence under paragraph 2,
and knowingly under paragraph 1.
Number 1631
CO-CHAIRMAN GREEN asked the wish of the committee.
Number 1637
REPRESENTATIVE DAVIES moved that CSHB 386 amended (RES) move from
the House Resources Committee with individual recommendations and
attached fiscal note and a note from Chairman Green to the House
Judiciary Committee to consider the issue of "regulation." There
was an objection, so a roll call vote was taken. Representatives
Austerman, Davies, Kott, Long, Nicholia, Williams and Green voted
in favor of moving the bill. Representative Ogan voted against
moving the bill. So CSHB 386 (RES) moved from the House Resources
Committee.
ADJOURNMENT
There being no further business to come before the House Resources
Committee, Chairman Green adjourned the meeting at 9:32 a.m.
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