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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