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