Legislature(2003 - 2004)
03/23/2004 08:01 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 23, 2004
8:01 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 188
"An Act relating to the authority of the Department of Natural
Resources to issue citations for certain skiing violations;
relating to establishing a bail schedule for certain skiing
violations and to procedures for issuing a citation for a skiing
violation."
- MOVED HB 188 OUT OF COMMITTEE
CS FOR SENATE BILL NO. 201(HES)
"An Act relating to home care and respite care; and providing
for an effective date."
- MOVED SB 201 OUT OF COMMITTEE
OVERVIEW: STATE/TRIBAL RELATIONS (SESSION ONE)
- HEARD [See the 8:48 a.m. minutes for this date]
PREVIOUS COMMITTEE ACTION
BILL: HB 188
SHORT TITLE: BAIL SCHEDULE FOR SKIING VIOLATION
SPONSOR(S): REPRESENTATIVE(S) HAWKER
03/12/03 (H) READ THE FIRST TIME - REFERRALS
03/12/03 (H) RES, STA
02/25/04 (H) RES AT 1:00 PM CAPITOL 124
02/25/04 (H) Moved Out of Committee
02/25/04 (H) MINUTE(RES)
02/26/04 (H) RES RPT 5DP 2NR 1AM
02/26/04 (H) DP: HEINZE, LYNN, KERTTULA, MASEK,
02/26/04 (H) DAHLSTROM; NR: STEPOVICH, GUTTENBERG;
02/26/04 (H) AM: GATTO
03/23/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: SB 201
SHORT TITLE: HOME & RESPITE CARE: CRIMINAL RECORDS
SPONSOR(S): JUDICIARY
04/28/03 (S) READ THE FIRST TIME - REFERRALS
04/28/03 (S) STA, HES
05/15/03 (S) STA AT 3:30 PM BELTZ 211
05/15/03 (S) -- Meeting Postponed to 5/17/03 --
05/17/03 (S) STA RPT 3DP
05/17/03 (S) DP: STEVENS G, COWDERY, DYSON
05/17/03 (S) STA AT 11:30 AM FAHRENKAMP 203
05/17/03 (S) Moved Out of Committee
05/17/03 (S) MINUTE(STA)
02/04/04 (S) HES AT 1:30 PM BUTROVICH 205
02/04/04 (S) Moved CSSB 201(HES) Out of Committee
02/04/04 (S) MINUTE(HES)
02/06/04 (S) HES RPT CS 3DP 1NR SAME TITLE
02/06/04 (S) DP: DYSON, GREEN, WILKEN; NR: GUESS
03/02/04 (S) TRANSMITTED TO (H)
03/02/04 (S) VERSION: CSSB 201(HES)
03/03/04 (H) READ THE FIRST TIME - REFERRALS
03/03/04 (H) STA, HES
03/23/04 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
REPRESENTATIVE MIKE HAWKER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 188.
LARRY DANIELS, General Manager
Alyeska Resort
Girdwood, Alaska
POSITION STATEMENT: Testified in support of HB 188.
MIKE SULLIVAN, Natural Resources Manager
Southcentral Region Office
Division of Mining, Land and Water
Department of Natural Resources (DNR)
POSITION STATEMENT: Testified on behalf of DNR during the
hearing on HB 188.
BRIAN HOVE, Staff
to Senator Ralph Seekins
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SB 201 on behalf of Senator
Seekins, sponsor.
GERALD LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
POSITION STATEMENT: Answered questions during the hearing on SB
201.
ACTION NARRATIVE
TAPE 04-42, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 8:01 a.m. Representatives Holm,
Seaton, Berkowitz, and Weyhrauch were present at the call to
order. Representatives Coghill, Lynn, and Gruenberg arrived as
the meeting was in progress.
HB 188-BAIL SCHEDULE FOR SKIING VIOLATION
Number 0050
CHAIR WEYHRAUCH announced that the first order of business was
HOUSE BILL NO. 188, "An Act relating to the authority of the
Department of Natural Resources to issue citations for certain
skiing violations; relating to establishing a bail schedule for
certain skiing violations and to procedures for issuing a
citation for a skiing violation."
Number 0096
REPRESENTATIVE MIKE HAWKER, Alaska State Legislature, as sponsor
of HB 188, stated that HB 188 is legislation proposed to
facilitate implementation of legislation that passed in
approximately 1994, which he indicated was referred to as the
Alaska Ski Safety Act. That Act, he said, recognized Alaska's
growing skiing facilities across the state and provided that
individual skiers have some duties and responsibilities as they
participate in the sport. It included facilities run by the
state, as well as private enterprises that run downhill ski
facilities. He said, "This is kind of ... the same thing as the
Motor Vehicle Code for skiers."
REPRESENTATIVE HAWKER indicated that it was "contemplated" in
the "original passage" of the [1994] bill to have the Alaska
Supreme Court prepare a bail schedule for the violations
contained in the Ski Safety Act. The bail schedule, he
explained, would be the schedule of fines to be paid for
violations of provisions of the Act. He said the violations are
those that were considered the most egregious and merited a
fine. [The list of violations can be found on the third page of
Representative Hawker's sectional analysis, which is included in
the committee packet.] He stated that the reason for HB 188 is
to ask the legislature's assistance in implementing the bail
schedule that was "contemplated in that Act."
Number 0355
REPRESENTATIVE HAWKER turned to a letter, dated August 16, 1995,
from the Alaska Supreme Court's Office of the Administrative
Director and signed by Susan Miller, Office of Special Projects.
The letter states that the court declined to prepare the bail
schedule contemplated under the Ski Safety Act because "there is
no clear authorization in the statute for such a schedule." He
told the committee that he has spoken with people who were
involved in the crafting of the Ski Safety Act who believe that
the Act did provide that authority. He indicated that
legislative statutes are often not interpreted the same by those
in the legal system.
Number 0450
CHAIR WEYHRAUCH said it's puzzling that it has taken eight years
to come up with a bill to clarify the 1995 letter.
REPRESENTATIVE HAWKER noted that [similar] legislation has made
it through the House before getting "lost in the shuffle at the
end of a session." He indicated that his interest is due to his
own involvement in representing Alyeska [Resort], as well as the
fact that one of his staff member's family runs Juneau's Eagle
Crest. He said, "It's definitely a priority bill for our
district."
Number 0509
REPRESENTATIVE GRUENBERG turned to his two-page handout
regarding statutes [included in the committee packet]. He noted
that there would only be a few statutes that would be the
subject of violations. He said a violation is basically a
traffic ticket for a skiing accident. He posited that there are
other things in the Act that ought to be considered as
violations and, thus, considered in the bail schedule.
Referring to Section 05.45.100, on page 2 of his handout, he
turned to subsections (b), (d), (e), and (f), which read as
follows (original punctuation provided):
(b) A skier has the duty to maintain control of
the skier's speed and course at all times when skiing
and to maintain a proper lookout so as to be able to
avoid other skiers and objects. However, a person
skiing downhill has the primary duty to avoid
collision with a person or object below the skier.
(d) A skier shall stay clear of snow grooming
equipment, vehicles, lift towers, signs, and other
equipment on the ski slopes and trails.
(e) A skier has the duty to heed all posted
information and other warnings and to refrain from
acting in a manner that may cause or contribute to the
injury of the skier or others. Evidence that the signs
required by AS 05.45.050 and 05.45.060 were present,
visible, and readable at the beginning of a given day
creates a presumption that all skiers using the ski
area on that day have seen and understood the signs.
(f) Before beginning to ski from a stationary
position or before entering a ski slope or trail from
the side, a skier has the duty to avoid moving skiers
already on the ski slope or trail.
REPRESENTATIVE GRUENBERG noted that the first sentence of
subsection (b) is a basic speed law, while the second sentence
is a basic right-of-way. He noted that (d) and (f) are also
right-of-way positions.
Number 0585
REPRESENTATIVE GRUENBERG suggested considering those subsections
as violations that would require a bail schedule. He turned to
the first page of his handout, and pointed out Section
05.45.070, subsections (a), (b), and (c), which read as follows:
Sec. 05.45.070. Other duties of ski area operators.
(a) A ski area operator shall equip a motorized
snow-grooming vehicle with a light visible at any time
the vehicle is moving on or in the vicinity of a ski
slope or trail.
(b) When maintenance equipment is being employed
to maintain or groom a ski slope or trail while the
ski slope or trail is open to the public, the ski area
operator shall place a conspicuous notice regarding
the maintenance or grooming at or near the top of that
ski slope or trail.
(c) A motor vehicle operated on the ski slope or
trails of a ski area shall be equipped with at least
(1) one lighted head lamp;
(2) one lighted red tail lamp;
(3) a brake system maintained in operable
condition; and
(4) a fluorescent flag at least 40 square inches
mounted at least six feet above the bottom of the
tracks.
Number 0700
REPRESENTATIVE GRUENBERG said, "I was wondering what the sponsor
would think about amending those provisions, lines 6 and 11 to
page 1, and line 1 on page 2, to include those (indisc. - paper
shuffling)."
Number 0720
REPRESENTATIVE HAWKER responded that although there is merit to
Representative Gruenberg's suggestions, the intent of HB 188 is
specifically not to rewrite the Ski Safety Act, which had a full
and complete hearing. He reiterated that HB 188 is only
intended to direct the supreme court to establish the originally
intended bail schedule.
Number 0765
CHAIR WEYHRAUCH said he would like to keep [HB 188] "a little
bill in a little package" and address the issue raised by the
court.
Number 0780
LARRY DANIELS, General Manager, Alyeska Resort, asked the
committee to pass the proposed legislation. He said it would be
"a tool in our quiver" that would give the state an opportunity
to "provide an additional incentive for the most egregious of
violators." He indicated some people think "that we would be
standing down here with our ticket books out and writing them to
... a large number of people." He said that would not be the
case. He noted that, currently, the option exists to write a
$50-dollar ticket and only one or two of them are written a
year. He assured the committee that "this is not something that
would be a revenue source for the state." He offered to answer
questions from the committee. He noted that his mountain
manager, Dave Wilson, was also available to testify [via
teleconference].
Number 0950
MIKE SULLIVAN, Natural Resources Manager, Southcentral Region
Office, Division of Mining, Land and Water, Department of
Natural Resources (DNR), testified. In response to a question
from Representative Holm, regarding whether he anticipates
[needing] state employees to write tickets, he said [writing
tickets] is something that has been done for a number of years
on a limited basis. He continued as follows:
We don't anticipate it's going to be a huge increase
in workload, and we've always viewed our relationship
with Alyeska and the other ski areas as kind of a
partnership, as it's a sharing of public and private
land. And we kind of wanted to support them, and we
believe this is an important thing to pursue. So, the
relatively small amount of time that it would occupy,
I don't believe is a major impact.
REPRESENTATIVE HOLM asked how many cases of egregious activity
throughout the state Mr. Sullivan has noticed in the last year.
MR. SULLIVAN estimated that only a few [cases occur] per year.
He mentioned using "parks authority" and currently being able to
write tickets for out-of-bound skiing. He indicated that
"adding a couple ... more offenses" wouldn't significantly
change the numbers.
Number 1048
REPRESENTATIVE HAWKER brought to the committee's attention that
there are two zero fiscal notes attached to the bill, from both
the Alaska Court System and the Department of Natural Resources.
He clarified that the bail schedule would allow the [Alaska]
Supreme Court to increase the "specific issues" to above the
current $50-dollar amount allowed. It would have a zero net
effect on "work and labor involved."
Number 1063
REPRESENTATIVE SEATON asked if the bill covers cross country
skiing as well as downhill skiing.
REPRESENTATIVE HAWKER replied that the legislation specifically
addresses organized ski areas, which would include all
activities in those areas.
REPRESENTATIVE SEATON asked if that would mean that a person
cross-country skiing off of a groomed trail would be liable for
a penalty.
REPRESENTATIVE HAWKER indicated that there is a huge amount of
space in an organized ski area. He said, "Just because you step
off of a groomed trail in a park is not going to be an issue
here." He clarified, "It is intended to be in those areas in
which organized activity is being conducted."
REPRESENTATIVE SEATON responded that he just wanted to get that
on the record.
Number 1130
REPRESENTATIVE HOLM stated he thinks [HB 188] seems to be "a
bill ... for common sense." He opined that it is kind of
strange to fine somebody because they might run into something.
He said, "Everything I see in here says to me that we've stepped
over the bounds, where we're going to say, 'We're going to go
ahead and write policy against ... stupidity.'" He said it
really bothers him.
Number 1185
REPRESENTATIVE HAWKER suggested looking to the motor vehicle
code as a parallel, which he said accomplishes two things beyond
"dealing with stupid people." He characterized the bill as
addressing [bad] behavior in a positive manner. He said from an
industry prospective, providing these guidelines facilitates the
development of a vital tourist industry in the state, and the
[dangerous] behaviors are viewed as a risk assessment by
potential investors and insurance companies. Those insurance
companies, he said, are looking for some statutory guide or
authority that shows that there will be some responsible
management that protects the people involved and gives investors
the ability to protect their investment.
Number 1270
REPRESENTATIVE HOLM responded that this is not an issue that he
wants to debate. However, he stated that he can't imagine that
the legislature needs to be adding policy that makes business
take care of itself. He said he thinks that the way these
businesses are run should be for their own safety and ability to
buy insurance, not based upon whether or not the State of Alaska
has the right to (indisc. - coughing). He said he has a
business and he is not sure he wants the State of Alaska to say,
[for example], that if someone were to use a pesticide he sells
and kill a plant there would have to be some penalty that would
be imposed upon them because they misused something they
purchased from him or "did something on their own."
Number 1319
REPRESENTATIVE BERKOWITZ stated, "We have the rule of law in
order the write down the codes of conduct." He said he
understands Representative Holm's point; however, "We've already
written volumes of statutes that have asked that point." He
asked, "Who's going to enforce these?"
Number 1337
REPRESENTATIVE HAWKER said a representative from DNR could best
answer that. Notwithstanding that, he said the employees of the
state-operated or privately operated [ski] areas have the
authority to propose a citation. That citation would be
forwarded to the department, where that "application" for a
citation would be reviewed. The citation itself would be issued
out of the state department, he explained.
REPRESENTATIVE BERKOWITZ stated that that is the most
problematic aspect - having private citizens acting as law
enforcement, even if it has to go through a vetting process. He
suggested that a way around that may be to endow the private ski
operators the ability to enforce their own code of conduct,
which might be to subject certain fines. In many ways, he said,
it would take the state out of the business.
Number 1397
REPRESENTATIVE SEATON turned to page 1, line 11 and 12 and
pointed to the language that was removed, which read, "[OVER
WHICH THE STATE HAS JURISDICTION]". He said it's almost like
saying the motor vehicle code would be enforced on private
property. He asked, "Is that the significance of this, ... that
... even though we don't have state jurisdiction over an area,
we'll apply the law to that area?"
Number 1420
REPRESENTATIVE HAWKER said that, in talking with those who
"originally worked on this bill," the intent of that particular
language was simply to define the difference between lands that
are controlled and all other lands. He said the state has
jurisdiction over state-owned lands, as well as having
jurisdiction over activities occurring on private property. He
said it had been pointed out that it could be interpreted as
meaning only state-owned and -operated ski facilities, when
clearly the intention is for it to include those privately
operated facilities. Many of those [private] facilities involve
lands that are leased from the state. He concluded, "That's why
that simple clarification was being made."
MR. SULLIVAN addressed the previously stated question regarding
a ski operator with the authority to enforce the violation as
opposed to giving the citation and having it referred to [DNR].
He explained that, currently, [DNR] gets fairly detailed reports
from ski patrollers who witness the activities. He said the
department doesn't lightly make decisions to issue the citations
and discusses the matter directly with the ski patrol. He said
this method has worked fairly well over the last approximately
ten years the department has been doing this.
Number 1521
REPRESENTATIVE GRUENBERG mentioned some ski areas that are owned
by a municipality. Looking at Section 1 of the bill, he noted
that the only people who are, under current law, authorized to
issue citations are the commissioner of DNR, a person designated
by the ski area operator, who's authorized by the commissioner,
or an employee of DNR. He suggested that a municipal official
should be added to that list to be authorized to issue citations
in municipal ski areas.
REPRESENTATIVE HAWKER responded that if it was appropriate, the
municipal official may be the person designated by the area
operator to manage the process. He said, "I believe that's
adequately contemplated in existing statute."
Number 1626
CHAIR WEYHRAUCH indicated that he thinks the bail schedule is
the main focus of the bill.
REPRESENTATIVE HAWKER asked that the committee not expand the
scope of the bill.
Number 1640
CHAIR WEYHRAUCH closed public testimony and asked for a motion
on the bill.
Number 1650
REPRESENTATIVE SEATON moved to report HB 188 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 188 was reported out of the
House State Affairs Standing Committee.
The committee took a brief at-ease.
SB 201-HOME & RESPITE CARE: CRIMINAL RECORDS
Number 1700
CHAIR WEYHRAUCH announced that the next order of business was CS
FOR SENATE BILL NO. 201(HES), "An Act relating to home care and
respite care; and providing for an effective date."
Number 1710
[AN UNIDENTIFIED SPEAKER moved to adopt CSSB 201(HES) as a work
draft.]
CHAIR WEYHRAUCH objected for discussion purposes.
Number 1725
BRIAN HOVE, Staff to Senator Ralph Seekins, Alaska State
Legislature, presented SB 201 on behalf of Senator Seekins,
sponsor. He turned to the sponsor statement, which read as
follows [original punctuation provided]:
Senate Bill 201 corrects errors identified by the
Revisor of Statutes in Chapters 45 and 118, SLA 1994.
Specifically, Chapter 45 enacted various provisions
containing a reference to a section that at the same
time was repealed by Section 4 of Chapter 118. The
section in question was former AS 12.62.035, relating
to access to certain crime information. As a
consequence of the enactment of these two bills,
various sections contain a reference to something that
no longer exists.
Senate Bill 201 corrects this error by replacing the
repealed information with criminal history record
information permitted by "Public Law 105-277 and
Alaska Statute 12.62".
Number 1749
CHAIR WEYHRAUCH asked, "Why wasn't this in the revisor's bill."
MR. HOVE offered his understanding that the revisor thought that
the change [proposed in SB 201] was substantive and warranted a
stand-alone vehicle rather than be "rolled into a revisor's
bill."
Number 1811
REPRESENTATIVE GRUENBERG pointed to a handout [in the committee
packet, entitled "Federal Statutes Authorizing Criminal
Background Checks for Nursing Facility Job Applicants and
Employees"]. He then turned to the memorandum to Senator Robin
Taylor from [Assistant Revisor] James Crawford, [dated December
18, 2002 and included in the committee packet]. In the fifth
paragraph, he noted, the term "criminal justice information" is
used, as opposed to "history record information". He also noted
that in the next paragraph, the term "past conviction
information" was used. He asked why that term was used rather
than "criminal justice information." He said the memorandum
seems to state that "criminal justice information" would include
the terms of sentences and information of conviction and would
perhaps be more appropriate.
MR. HOVE deferred the question to Mr. Luckhaupt.
Number 1900
GERALD LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, indicated that Mr.
Crawford was pointing out that there are various alternatives.
He said, "This could be a judgment that the legislature should
be making as to what term to use." He continued as follows:
The criminal justice information term is not one that
we usually use for ... any employment screening for
noncriminal justice purposes. The term we use is
"criminal history record information." As you may
know, there are a lot of times people are arrested and
nothing ever comes of that arrest. And so, for the
most part, ... that information is usually not
available to employers where the legislature has
chosen to give out that information.
Where we have chosen to give out information is using
the term "criminal history record information," which
means a record of conviction. It includes current
offender information and current arrests that are out
there. Criminal history record information also
includes identification information - you know, a
photo or something so they can identify that this
person is who they are.
... In Alaska, the way we use that term - and also
the feds for that matter - ... you limit access to
correctional information and the record of how the
person did in a penitentiary and things like that; you
don't allow that out to the public.
Number 1995
REPRESENTATIVE BERKOWITZ read from a one-page handout [included
in the committee packet, labeled "SB 201 - Notes for the
record"], which read [original punctuation provided, but some
formatting changed]:
Criminal justice information provided under AS 12.62
is generally limited to the information that may be
released under 12.62.160(b)(8) and (9).
AS 12.62.160(b): Subject to the requirements of this
section, and except as otherwise limited or prohibited
by other provision of law or court rule, criminal
justice information
(8) may be provided to a person for any purpose,
except that information may not be released if the
information is nonconviction information or
correctional treatment information;
(9) including information relating to a serious
offence, may be provided to an interested person if
the information is requested for the purpose of
determining whether to grant a person supervisory or
disciplinary power over a minor or dependent adult.
"interested person" means a person as defined in AS
01.10.060 that employs, appoints, or permits a person
to serve with or without compensation in a powetion
[sic] in which the employed, appointed, or permitted
person has or would have supervisory or disciplinary
power over a minor or dependent adult." AS
12.62.900(18).
REPRESENTATIVE BERKOWITZ stated, "In essence, ... you can't
release information if it's nonconviction information or
correctional treatment information." He said he thinks those
are the most relevant factors for [the legislature] to consider.
He said, "To try and modify the proposed language in the
proposed bill is a huge, huge effort; it connects to all kinds
of other statutes and, cumbersome that it might be, this is
probably the simplest way of addressing the issue."
Representative Berkowitz suggested that the aforementioned
handout could be incorporated into a letter of intent that would
accompany the bill.
Number 2029
REPRESENTATIVE GRUENBERG said he wants to know why it's "limited
to information under PL 105-277, rather than also including the
National Child Protection Act of 1993, and possibly Public Law
92-544."
[SB 201 was held until later the same day.]
Number 2035
The House State Affairs Standing Committee took an at-ease at
8:40 a.m. in order to prepare for the overview. [For the
overview regarding Tribal/State Relations, see the 8:48 a.m.
minutes for this date.]
CHAIR WEYHRAUCH reconvened the House State Affairs Standing
Committee meeting at 10:07 a.m. following the overview. Present
were Representatives Seaton, Holm, Lynn, Coghill, Berkowitz, and
Weyhrauch.
SB 201-HOME & RESPITE CARE: CRIMINAL RECORDS
TAPE 04-43, SIDE A
Number 0001
CHAIR WEYHRAUCH announced that the committee would return to CS
FOR SENATE BILL NO. 201(HES), "An Act relating to home care and
respite care; and providing for an effective date."
Number 0015
REPRESENTATIVE BERKOWITZ moved to report CSSB 201(HES) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSSB 201(HES) was
reported out of the House State Affairs Standing Committee.
ADJOURNMENT
Number 0033
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 10:08
a.m.
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