Legislature(1999 - 2000)
04/06/2000 09:15 AM Senate FIN
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
MINUTES SENATE FINANCE COMMITTEE April 6, 2000 10:05 AM TAPES SFC-00 # 78, Side A CALL TO ORDER Co-Chair John Torgerson convened the meeting at approximately 9:15 AM PRESENT Co-Chair John Torgerson, Co-Chair Sean Parnell, Senator Al Adams, Senator Dave Donley, Senator Lyda Green, Senator Pete Kelly, Senator Loren Leman, Senator Randy Phillips, Senator Gary Wilken Also Attending: DARWIN PETERSON, Committee Aide, Co-Chair Torgerson; KEN TAYLOR, Director, Division of Habitat and Restoration, Department of Fish and Game; REPRESENTATIVE GARY DAVIS; JOSEPH BALASH, Staff to Representative Gene Therriault; MAJOR MATTHEW MAGSINO, Headquarters Company, rd 23 Scout Battalion, Army National Guard, Juneau; CAPTAIN DON MERCER, Personnel Officer, Army National Guard, Juneau; DEAN J. GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law; JAMES MANLY, Staff Director, Representative John Harris. Attending via Teleconference: From Anchorage: JANICE ADAIR, Director, Division of Environmental Health, Department of Environmental Conservation; LUTENIENT DAVID HUDSON, Department of Public Safety; DUANE UDLAND, Chief, Anchorage Police Department; BLAIR MCCUNE, Deputy Director, Alaska Public Defender Agency; From Gakona: ALAN LEMASTER; From Anchorage: GARY POWELL, Director, Division of Fire Prevention, State Fire Marshall; From Kenai: SCOTT WALDEN, Assistant Chief, Kenai Fire Department; From Kodiak: MIKE DOLPH, Retired Fire Chief, Kodiak; SUMMARY INFORMATION SB 271-FOOD SAFETY: Department of Environmental Conservation OVERSIGHT/ADVISORY GRP. The Department of Environmental Conservation testified, along with the general public. The bill was held in committee. SB 259-CRIMES: REPRESENTATIONS/I.D./COMPUTERS The Department of Law testified, along with the general public. The bill was held in committee. SB 212-FISH & GAME GRANTS FOR HABITAT The Department of Fish and Game testified. The bill was held in committee. HB 43-MUNI.ORDINANCES:POLICE TRAINING SURCHARGE The sponsor testified. The bill was held in committee. HB 380-INSURER TAX CREDIT: FIRE STANDRDS COUNCIL The sponsor testified. The bill was held in committee. HB 289-AK DEFENSE FORCE/NATL GUARD: TRANSPORT The sponsor testified, along with the general public. The bill was moved from committee. SENATE BILL NO. 271 "An Act relating to fees charged for inspections by the Department of Environmental Conservation; and providing for an effective date." DARWIN PETERSON, Committee Aide to Co-Chair Torgerson, outlined the changes between the prior version of this legislation and the proposed Committee Substitute. He stated that Section 1, of the new version would exempt mobile food units from inspections. He continued that Section 2 (1) provides for a 50 percent reduction in fees for 501C, non-profit organizations that are required to be inspected. He noted that this same section addresses businesses that have more than one facility in the same building, such as a restaurant and a bar, and how this establishment would be charged just one fee. He noted a general change in the definition of a "food establishment," which encompasses bars as well as restaurants. He affirmed that language in Section 3 calls for a Food Safety Advisory Group, consisting of five industry members. He noted that in this same section, a date of January 15, 2001 was established as when this advisory group must submit recommendations to the legislature for specific issues raised and outlined in this same committee substitute. Mr. Peterson summarized these issues for the committee. Senator Adams referred to the exemptions in Section 2, line 9 and noted an exemption in the past regarding schools, including Headstart Programs. He asked for assurances that these inspections continue for such entities in the future. Co-Chair Torgerson responded that he understood schools were already exempt from fees even though they continue to be inspected. Senator Leman wondered if the Commissioner should appoint the advisory members as established by this legislation. Co-Chair Torgerson responded that the committee was open to suggestions about how this advisory group should be comprised and who should decide the makeup of the same. Senator Taylor stated that rather than these members be appointed, he felt as though the industry participants should be able to decide who they would like to represent them ultimately. JANICE ADAIR, Director, Division of Environmental Health, Department of Environmental Conservation testified via teleconference from Anchorage. She stated her concern with only two provisions of this legislation. She mentioned Section 1 exempting mobile food units and noted that a number of these do prepare hazardous foods. She felt as though this related exemption language was too broad. Additionally, in Section 2, she noted that schools and Headstart programs are exempted by statute already. She referenced language regarding multiple food establishments under one business as being problematic. Presently, she pointed out, that the department does not charge multiple fees if an establishment provides more than one service with a shared kitchen facility. She declared that providing an exemption for businesses, which have very distinct services under one roof without the use of shared facilities that need inspections would create a fiscal hardship to the department. She pointed out that an advisory group, as discussed previously, must be established by the related state agency in order to receive Federal Food and Drug Administration monies. Co-Chair Torgerson addressed some of Ms. Adair's concerns and stated that the committee would need her input for language clarifications. He discussed conceptually what these changes could entail. ALAN LEMASTER testified via teleconference from Gakona and commended the committee on the progress they have made thus far with SB 271. Co-Chair Torgerson ordered that SB 271 be HELD in committee. SENATE BILL NO. 259 "An Act relating to criminal impersonation." SENATOR WILKEN spoke to this legislation's fiscal note. He pointed out originally there were four fiscal notes related to this bill, one from the Department of Corrections, which remains unchanged at $14,300 and a Department of Law fiscal note at $15,000. He continued with the Public Defender's Agency fiscal note at $84,700, presently reduced to $21,500 and the Alaska State Troopers fiscal note at originally $145,600, reduced to $22,800. He explained the intricacies of these monetary changes to the committee. DEAN J. GUANELI, Chief Assistant Attorney General, Criminal Division, Department of Law referred to an amendment proposed for this legislation, which would make significant improvements in the area of self-defense. He stated that prosecutors have found it extremely difficult to secure convictions in relation to fairly outrageous, factual circumstances because jurors are confused about burdens of proof contained in the instructions they receive from judges. He stated that this amendment would address the situation that when a defendant claims to have acted in self-defense due to a claim of insanity, it is the defendant's burden to prove this insanity, or if they were under duress to commit the crime, they must prove this as well. He continued that this proof lies with the defendant because it relates to their state of mind and whether or not this is reasonable, whether they had reason to be afraid and justified to act in self-defense. He pointed out that presently, the state is required to prove that the defendant had no reason to be afraid and that their actions were unreasonable. He noted that this was a very difficult thing to prove. He then detailed actual Alaska cases to illustrate this difficulty. Mr. Guaneli stated that there was another separate problem with the law of self-defense. He noted that when a defendant claims self-defense they will often claim that the person killed was a violent person and they are able to present this person's violent history to the jury. He pointed out that at the same time, the state is restricted by the rules of court by introducing anything about the defendant's past. He explained that the state thought this problem had been rectified six years ago with an amendment to the Rules of Court, but this new provision was later overturned. He related that the proposed amendment would allow the state to enter evidence about a defendant's violent past, if his or her lawyer decides to enter the deceased's violent history. Senator P. Kelly asked about a scenario of someone entering his home and whether he shoots this person, would the burden of proof that he was acting in self-defense be on him. Mr. Guaneli responded that the self-defense statutes state that a person, in their own home, has no duty to retreat. Senator Robin Taylor noted that the Anchorage Police Department supports this amendment. LUTENIENT DAVID HUDSON, Department of Public Safety testified via teleconference from Anchorage. He stated that he was not prepared to respond to this new version of SB 259, but would answer questions regarding its fiscal note. DUANE UDLAND, Chief, Anchorage Police Department and President, Alaska Association of Chiefs of Police testified via teleconference from Anchorage. He stated that the subject matter of this amendment has become a major issue at the Anchorage Police Department. He added that it appeared that "dueling" is allowed and legal in Alaska. He asserted that the new criminal code adopted in 1980 did not anticipate gang-related shootings where the perpetrators assert the claim of self-defense. BLAIR MCCUNE, Deputy Director, Alaska Public Defender Agency testified via teleconference from Anchorage and stated that self-defense traditionally has been a justification for crime. He pointed out that there is a difference in the law between justification and excuse. He continued that an excuse is generally those things that a defendant is required to prove as an affirmative defense, in other words, the burden of proof is on the defendant. He used the example of someone that is lost in the woods and he or she breaks into a cabin out of necessity. He commented that justification has traditionally been given a much higher status in criminal law. He continued that because of this, the prosecution has had the burden of proving that a crime took place despite the justification, which the defense raised. He used the example of a police officer using force to arrest someone for a crime. He noted that technically the police officer's actions constitute an assault, however, under AS 11.81.370, the police officer is justified in using force to make an arrest or terminate an escape. He noted that justified offenses are traditionally under the law, not really seen as crimes. He added that the state has the burden of proving this despite the justification. Mr. McCune cited a 1987 U.S. Supreme Court case that found that putting the burden of proof on the defendant was not unconstitutional. He felt that this was not a good trend. He spoke to some of the specific cases, which Mr. Guaneli raised as illustrations. He stated that the self-defense Alaska statute in place is currently a good one. He sympathized with the testimony from the Anchorage Police Department and cited the large number of handguns in circulation. He felt as though earlier legislative efforts went a long way in curbing random shootings. He added that this amendment could shift the burden of self-defense to a homeowner who attempts to protect him or herself on their own property. He stated that the department also objects to the evidence rule changes allowed in this proposed legislation. Senator Phillips asked if Mr. Guaneli's department had surveyed other states to see how many of them have these types of laws in place. Mr. Guaneli responded that there are about 20 states that use the term "affirmative defense" when describing self- defense. He pointed out that it is necessary to research the case law and opinions from every state to see how they apply this concept in each. He was unable to give a firm number of how many states have these laws in effect, such as this amendment would propose. He explained that the Criminal Division supports this bill, but the Administration has not taken a position as of yet. Co-Chair Torgerson ordered SB 259 HELD in committee. CS FOR SENATE BILL NO. 212(RES) "An Act authorizing the commissioner of fish and game, with the concurrence of the Board of Fisheries or the Board of Game, to award grants to protect, maintain, improve, or extend fish or game resources of the state; and providing for an effective date." Co-Chair Torgerson stated that he generally had concerns with the broadness of this bill's language. KEN TAYLOR, Director, Division of Habitat and Restoration, Department of Fish and Game stated that this legislation would authorize the department to grant federal receipt authority, as long as it does not consist of federal aid dollars or federal Pittman - Robertson and Dingell - Johnson/Wallop - Breaux programs. He noted the previous Senate Finance Committee concerns and added that the current version of this legislation addresses both of these. Firstly, he stated, the broadness of language regarding receipt authority was tightened. He specifically outlined these changes. He added that the words "or interpret" were removed from a clause regarding the commissioner's powers to oversee restoration programs. Senator Leman made a motion to adopt SB 212, version 1- GS2020\K. Hearing no objection it was so ADOPTED. Co-Chair Parnell made a motion to move SB 212, version 1- GS2020\K from committee with individual recommendations and a Department of Fish and Game, zero fiscal note. Hearing no objection SB 212 was MOVED FROM COMMITTEE. HOUSE BILL NO. 43 "An Act relating to police training surcharges imposed for violations of municipal ordinances." REPRESENTATIVE GARY DAVIS stated that in 1968 the legislature passed a police surcharge bill and in reviewing the details of this legislation, some municipalities had concerns about how it would be implemented. He continued that this latest legislation addresses two of these concerns. He cited wording in the original legislation that if a municipality does not adopt an ordinance to impose a surcharge on a corresponding violation, the entire ordinance is void. He pointed out that this system does not work when it comes to collective ordinances that might have varying surcharge potential. He stated that this present legislation clarifies such a situation. He cited the second concern regarding whether this surcharge would apply to both criminal and civil violations related to municipal ordinances. He avowed that this legislation clarifies that these surcharges relate to criminal violations. Co-Chair Torgerson called a short at ease at 10:45 AM and came back on record at 10:50 AM. Co-Chair Parnell made a motion to move HB 43, version 1- LS0275\G with individual recommendations and a Division of Public Safety, zero fiscal note. Hearing no objections, HB 43 was MOVED FROM COMMITTEE. CS FOR HOUSE BILL NO. 380(L&C) "An Act relating to contributions to the Alaska Fire Standards Council and to an insurer tax credit for those contributions; and providing for an effective date." JOSEPH BALASH, Staff to Representative Gene Therriault stated HB 380 creates a tax credit for cash contributions to the Alaska Fire Standards Council. He noted that this credit is structured such that it has a positive impact on the state's treasury. He added that the first $100,000 contributed to this state entity will result in a 50 percent credit against their liability for a premium [indiscernible] and the second $100,000 will be matched dollar for dollar on a credit. He continued that the Council cannot claim a credit past $200,000, nor can they claim for a credit for more than 50 percent of their total liability for that tax year. He asserted that this tax credit is purely voluntary. He continued that the Council will come into existence on or later than July 1, 2000 and mentioned that this Council will be vested with the power to adopt fire training standards that take into account Alaska's unique qualities such as climate or those communities where the full amenities associated with a municipality might not be available to a fire department. Co-Chair Torgerson asked Mr. Balash to review the fiscal note for the committee, more specifically a Department of Community and Economic Development, negative general fund of $150,000. Mr. Balash responded that the fiscal note as he understood, was the best guess at what type of revenues this legislation will generate. He explained that this credit will result in a decline in general funds, but offset by a larger amount of this Fire Standards Council fund money absorbed. Co-Chair Torgerson asked what the contribution limit would be related to this program. Mr. Balash responded that there was no limit as to how much an insurance company can contribute, but there is a limit as to how much they can claim under this tax credit, which is $200,000. Co-Chair Torgerson pointed out that if it cost $220,000 to run the Fire Council, he wondered if this was the maximum amount allowed to operate the Council. Mr. Balash responded that the intent of this legislation is to raise enough money to fund the Council and its operations at $220,000, but they could conceivably take in a million dollars in contributions. However, he continued, it is going to be the Fire Chiefs Association and other members of this Council who will solicit contributions, any excess will lapse into the general fund, unless the legislature directs otherwise. Co-Chair Torgerson supports setting up this fund, but he was concerned about collecting a million dollars that would just be "money looking for a job, instead of a project looking for money." He felt as though, no matter, the excess would always be absorbed into this council's budget and suggested that a cap be instituted. Mr. Balash pointed out the first $100,000, matched at 50 percent, will require that the insurance companies "pony up" a little more to the state than they would otherwise under their premium tax. He noted that the intent was for this to act as a buffer to prevent companies from contributing more than is necessary, creating a disincentive to contribution beyond the set amount of funding. Senator Green asked if Mr. Balash had referred to a premium tax and wondered if this legislation had anything to do with such a tax. She asked if this would be in lieu of a corporate tax. Mr. Balash responded that this legislation related to the premium tax due, having nothing to do with corporate income tax. He continued to note that the insurance premiums, which companies provide in the state, are set at a 2.7 levied tax. Senator Green asked if all self-insured companies would be exempted by this legislation. Mr. Balash responded that he presently could not answer this question. Senator Green pointed out that self-insured entities do not pay a premium tax. GARY POWELL, Director, Division of Fire Prevention, State Fire Marshall, Department of Public Safety, testified via teleconference from Anchorage in support of SB 380. He stated that his division felt that this was an appropriate vehicle to fund the Fire Standards Council. SCOTT WALDEN, Assistant Chief, Kenai Fire Department testified via teleconference from Kenai in support of this legislation. He felt as though language could be drafted to accommodate any excess monies that funnel into the fund as designated. MIKE DOLPH, Retired Fire Chief, Kodiak testified via teleconference from Kodiak. He stated that he is presently the President of the Alaska Fire Chiefs Association. He cited the importance of the Standards Council and establishing standards for Alaska's fire service. He noted that these standards would help lessen liability burdens for the state's municipalities. Senator Green asked that if this program were not created in Alaska, where the premium tax would go today. Mr. Balash responded that this premium tax would go straight into the general fund and is not used for any particular program. Co-Chair Torgerson ordered that SB 380 be HELD in committee. Tape: SFC - 00 #78, Side B 10:06 AM HOUSE BILL NO. 289 "An Act relating to transportation of members of the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force by the Alaska marine highway system and the Alaska Railroad; and relating to the Alaska State Defense Force." JAMES MANLY, Staff Director, Representative John Harris, stated that this legislation would allow the Alaska railroad and ferry system on a space available basis, to provide free transportation to the Alaska National Guard, the Alaska Naval Militia, and the Alaska State Defense Force. He added that these contingents would be required to show their orders in order to obtain this free transportation, not including a vehicle. He mentioned that in previous hearings, the railroad and the Marine Highway, both supported the bill. rd MAJOR MATTHEW MAGSINO, Headquarters Company, 23 Scout Battalion, Army National Guard, Juneau, stated that as an active duty member, he is not able to voice his support for this legislation, but pointed out the benefits afforded to the Army National Guard by this legislation. CAPTAIN DON MERCER, Personnel Officer, Army National Guard, Juneau, referenced the fiscal note for HB 289 and the language dealing with "revenue impact." He mentioned that when the weather turns bad in Southeast Alaska, the guardsmen are able to use the ferry system to travel home more readily. He did not see this legislation increasing the use of the ferry system as it currently stands and added that the Guard plans travel for their members on average 120 days prior to any exercise. Co-Chair Torgerson agreed and noted that the Alaska Railroad, along with other travel entities have afforded free travel to troops and equipment. Co-Chair Parnell made a motion to move HB 289, version 1- LS1273\A from committee with individual recommendations and zero, Marine Highway, Alaska Railroad and Department of Community and Economic Development fiscal notes. Hearing no objection HB 289 was MOVED FROM COMMITTEE. ADJOURNED Senator Torgerson adjourned the meeting at 11:30 AM.
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