SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE January 28, 1998 9:00 a.m. MEMBERS PRESENT Senator Gary Wilken, Chairman Senator Loren Leman, Vice-Chairman Senator Lyda Green Senator Jerry Ward Senator Johnny Ellis MEMBERS ABSENT None COMMITTEE CALENDAR SENATE CONCURRENT RESOLUTION NO. 19 Relating to the use of prototype designs in public school construction projects. HEARD AND HELD CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 189(JUD) am "An Act relating to sale, gift, exchange, or distribution of tobacco and tobacco products." HEARD AND HELD PREVIOUS SENATE COMMITTEE ACTION SCR 19 - No previous action to report. HB 189 - See HESS minutes dated 1/16/98. WITNESS REGISTER Senator Tim Kelly Alaska State Capitol Juneau, Alaska 99801-1182 POSITION STATEMENT: Presented SCR 19 Michael Morgan Facilities Section Manager Department of Education 801 W. 10th St., Ste. 200 Juneau, AK 99801-1894 POSITION STATEMENT: Commented on SCR 19 Doug Green American Institute of Architects 901 W. 29th Ave. Anchorage, Alaska 99503 POSITION STATEMENT: Commented on SCR 19 Mr. Len Mackler Fairbanks North Star Borough School District 520 Fifth Avenue Fairbanks, Alaska 99701 POSITION STATEMENT: Supports SCR 19 Mr. Lou Matheson Northwest Arctic Borough School District P.O. Box 51 Kotzebue, Alaska 99752 POSITION STATEMENT: Supports concept of SCR 19 Mr. David Bell Northwest Arctic Borough School District P.O. Box 51 Kotzebue, Alaska 99752 POSITION STATEMENT: Supports concept of SCR 19 Anne Marie Holen Alaska Native Health Board 4201 Tudor Centre, #105 Anchorage, Alaska 99508 POSITION STATEMENT: Commented on HB 189 Anne Carpeneti Department of Law P.O. Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Commented on HB 189 Mark Hickey 211 4th St., Suite 108 Juneau, Alaska 99801 POSITION STATEMENT: Commented on HB 189 ACTION NARRATIVE TAPE 98-5, SIDE A Number 001 CHAIRMAN WILKEN called the Senate Health, Education and Social Services (HESS) Committee to order at 9:03 a.m. and recognized the presence of Senators Ellis, Ward, and Green. He announced SCR 19 would be the first order of business, and HB 189 the second. SCR 19 - PROTOTYPE SCHOOL DESIGN SENATOR TIM KELLY, co-chair of the Deferred Maintenance Task Force (DMTF), presented SCR 19. The DMTF received testimony on the cost savings and operational advantages of prototypical schools. Several communities use them today; the task force found that savings in design costs and ease of maintaining several identical physical plants offered the opportunity to fund more schools as the savings are achieved. One rural school district has expressed great interest in using a prototype for schools in its district and is currently in discussion with the Fairbanks School District to learn from the Fairbanks experience. Two schools in Fairbanks are of the same design and were built at less cost. The resolution requests the Department of Education (DOE) to develop prototypical schools and incentives for districts to use them. The DOE is requested to report to the Legislature by March 1 any statutory changes that may be needed to accomplish this goal. CHAIRMAN WILKEN commented that he was also a member of the DMTF and he had prior experience on the prototype effort through his association with the Fairbanks' School District. When traveling throughout the Northwest District this summer, he was struck by the idea that a prototypical school in those areas would be a welcome addition to the villages at a significantly lower cost. If the state can build schools across the state for less than double digit numbers, it will get more for its dollars. Number 081 DOUG GREEN, a member and chair of the Governmental Affairs Committee of the American Institute of Architects (AIA), and the Alaska Professional Design Council (APFC), gave the following testimony. Prototypes used in Anchorage and Fairbanks have been successful because both locations have larger populations and similar site conditions, and because the same firms were involved in reusing the designs. Although those projects were successful, he stated the following concerns about using that concept statewide. In 1991 the Georgia DOE surveyed 49 states and found many of the states that had tried prototypical designs would not use them again, and no states used them on a statewide basis. The State of Alaska has a wide variety of site, climatic, and soil conditions; very little is saved when different conditions have to be considered in the design of each school. There is a high cost associated with developing various designs for different climatic and soil conditions across the state. If all site conditions are similar, a cost savings of 15 to 20 percent can result from using prototypical designs. These designs, once developed, become outdated with code changes and technological advances. If the committee's goal is to save money, the AIA has found that in small communities where local residents are involved in the design of a school, they take much greater responsibility for the building and treat it better. That pride of ownership translates to lower maintenance costs and better care for the facility. The AIA's third concern is with liability. If prototypical designs are used statewide, one architect may have to modify the original design which could create liability problems. In addition, AIA believes there may be problems with standardizing educational specifications. He suggested headway could be made by introducing a database of features that have worked well for school districts across the state. CHAIRMAN WILKEN asked what the other variables would be difficult to incorporate into a basic school design across the state, other than foundations and sloping sites. MR. GREEN said many of the variables are climate related. In Southeast, buildings must be designed for heavy rainfall and moisture in the air, on the north and west coasts the concern is fine powder-driven snow infiltration, vapor barrier concerns, insulation, and wind patterns. Using a prototype design might result in an over-designed model in S along the north coast. CHAIRMAN WILKEN clarified SCR 19 only applies to primary schools. He suggested creating three prototypical designs for different climates: north of the Alaska Range, Southcentral, and Southeast. MR. GREEN stated there are also different seismic zones throughout the State that require specific design standards for each zone. Number 225 CHAIRMAN WILKEN noted Len Mackler would be testifying next via teleconference. Mr. Mackler testified before the DMTF meeting in Fairbanks and gave a visual presentation, and gave task force members a tour of two prototypical schools. LEN MACKLER stated the Fairbanks School District uses a 600-student elementary school prototype. The first school was built in 1993; six more have been built since. The Fairbanks School District owns the design, and has improved it each time to correct any facility or educational program problems that arose out of previous versions. The prototype requires a fairly flat site. The school district also has a sloped site design that has only been used once. The last of the seven prototypes built cost $9.9 million in construction costs, for a 63,000 square foot building ($157 per sq. ft.). Fairbanks has realized several advantages of prototype design use. The first advantage is time saved which can eliminate one year of inflation costs, get the students into better facilities sooner, and reduce overcrowding faster. Voters also see a quicker response to bond issues. The second advantage is the cost savings. Fairbanks is spending about five percent of construction costs on architect and engineering designs versus the more typical 10 to 11 percent for each new design. That six percent difference amounts to about $750,000 plus the one year inflation savings. The third advantage is bid competitiveness. Contractors who bid on these projects know that the low bidder on each previous prototype made money and that the designs are complete. Every project has come in under the engineer's estimate. The fourth advantage is the teachers' and principals' significant input into the design. After the first year of occupancy, all staff are surveyed and asked for suggestions. Those comments are analyzed and incorporated into the next design. The designs are also upgraded for technology and current codes, and one district wide special education program is included to meet that program's needs. Start-up problems are drastically reduced. The last advantage is the standardization of systems and use of high quality components, which reaps big rewards in overall maintenance programs. MR. MACKLER explained the Fairbanks' School District has also used elements of the prototypical designs in renovations and additions to older schools. In summary, the Fairbanks' community likes the prototypical concept and has saved considerable money in initial construction costs and in the long term maintenance costs of its facilities. CHAIRMAN WILKEN asked who has opposed the effort for prototypical schools in Fairbanks. MR. MACKLER answered the only complaint came from some people in the design community, particularly architects who were beaten out during the RFP phase by the original architect who knew the most about the building. Based on the savings and input from the staff using the building, that complaint was found to have no merit. Number 484 SENATOR LEMAN questioned who assumes the liability for the school district when the prototype designs are changed. MR. MACKLER answered the borough has public works staff who contract for the construction. The borough owns the prototype design, and each upgraded design, so it does assume some liability. SENATOR LEMAN asked if changes are being made to the design, the borough would have full responsibility for the design. He asked who is stamping the contract documents. MR. MACKLER said the architects are stamping the contract documents. SENATOR LEMAN asked if the architects are under contract to the school district. MR. MACKLER replied each time a prototype is about to be built, the school district issues an RFP to hire an architect; that architect is responsible for the design and stamps the drawings. SENATOR LEMAN asked if the architect takes the district's prototype design, makes the appropriate changes for that site, incorporates technology upgrades, and seals the contract documents. MR. MACKLER said that is the procedure used. CHAIRMAN WILKEN noted that Mr. Mackler is a member of the Bond Reimbursement and Grant Review Committee which will visit this issue on February 19 in Juneau. LOU MATHESON, the Superintendent of the Northwest Arctic Borough School District (NWABSD), testified via teleconference from Kotzebue. NWABSD supports the concept of prototypical schools because it believes the approach has merit, even in rural Alaska and on different building sites. Prototypical school designs will bring about an initial reduction in construction costs, primarily due to decreased design costs, and the standardization of equipment and materials should reduce operating costs. NWABSD also anticipates there will be a reduction in expansion costs. One school in Kotzebue, completed in 1989, is already well beyond its capacity. If the prototypical design could be expanded easily, rather than requiring a complete redesign, cost savings will result. NWABSD offered to assist the committee to expedite severely-needed new construction in rural Alaska. CHAIRMAN WILKEN noted the Buckland School is seventh on the capital replacement list. DAVID BELL, testifying from Kotzebue, stated Mr. Matheson covered the remarks he planned to make. Number 388 MIKE MORGAN, Facilities Manager for the Department of Education (DOE), made the following comments. To accomplish the goals of SCR 19, DOE will need more definition. The resolution does not clarify whether it applies to elementary schools only, and what core school functions are. He noted that the issue of school size has not been addressed either. DOE's position paper postulates four different size ranges which allows for expandability. He cautioned that DOE used a stock plan in the 1970's, and if prototypical designs are used again, he would want assurance that the same problems do not recur. CHAIRMAN WILKEN asked if the Molly Hootch schools are "cookie-cutter" schools. the same plan. CHAIRMAN WILKEN stated that he and Senator Leman had a chance to see some of those schools and felt they were disappointing at best. MR. MORGAN said the design with a narrow stairway going to a forced air furnace room was replicated in a number of places around the state, and that design suffers in a number of aspects. MR. MORGAN informed the committee he attended a conference held by the Council of Educational Facility Planners last summer. British Columbia's experience with facility planning was discussed. British Columbia has a wide climatic and school size range, similar to Alaska. To control costs, it has placed a limit on the per square foot cost with an adjustment for area, and requires value engineering. Value engineering requires the use of a procedure to determine that specific components make good economic sense over the full life of the school, such as the use of cedar siding. CHAIRMAN WILKEN commented this legislation may be the worst idea to come down the pike but this issue needs to be explored by the Bond Reimbursement Committee, DMTF members, and DOE staff. He repeated if 15 to 20 percent is saved on each school, the Legislature can get down the list a lot faster. SENATOR ELLIS asked Mr. Morgan if he was suggesting Alaska adopt some of the procedures used in British Columbia as an alternative to what SCR 19 mandates, the development of regulations and incentives for using prototypes. MR. MORGAN said the issue of prototypes brings to the table the various things that need to be done to control costs. He was offering that information as other possible avenues that could be used instead of, or in conjunction with, the use of prototypical designs. CHAIRMAN WILKEN stated that one of the charges of the Bond Reimbursement Committee, formed in 1994 by the Legislature, is to analyze existing prototypical designs for school construction projects. This idea began long before the DMTF came along. SENATOR ELLIS asked whether any organizations have compiled statistics or anecdotes from previous experiences in the '70s with the prototypical approach. MR. MORGAN replied that nothing has been documented, but creating a "lessons learned" report is on DOE's list of things to do. Number 469 CHAIRMAN WILKEN stated that he learned, from his limited visits to the Bush this summer, that the Molly Hootch schools offered the opportunity to task the maintenance of any school district. In his opinion, those schools were not built for Alaska. SENATOR ELLIS asked if Mr. Green had sent written testimony to the committee. CHAIRMAN WILKEN stated the Society of Architects would be submitting a position paper, and that SCR 19 would remain in committee so that members could work on the K-6 issue and other changes. Number 484 SENATOR LEMAN said he served on the DMTF and has been in many schools around the state in his professional capacity. He stated he shares many of Mr. Green's reservations, and is concerned that the Legislature thinks it can apply a simplistic solution statewide to solve this problem. He agrees with the goal of getting good designs at a lower cost and that this approach has been successful in Anchorage and Fairbanks, and he favors encouraging this approach where it can be successful. He cautioned that it would be unwise to think this approach is a cure-all for new school construction statewide. He suggested keeping a repository in DOE of successful plans, but noted he is reluctant to ask the DOE to develop prototypical designs. Senator Leman concluded that he likes the goal of the resolution, but believes this approach could be dangerous in some circumstances. He offered to work with all interested to craft the measure to encourage the appropriate activity to accomplish the goal. CHAIRMAN WILKEN acknowledged Senator Leman's remarks and explained SCR 19 has been offered as a concept for the Administration and Legislature to work toward. He announced to those on teleconference that SCR 19, if it passes the Legislature, will be brought before the Bond Reimbursement Committee on February 19. SENATOR ELLIS asked if SCR 19 will be scheduled before the committee again. CHAIRMAN WILKEN said it would. HB 189 - RESTRICT TOBACCO SALES REPRESENTATIVE COWDERY, sponsor of HB 189, deferred to Marco Pignalberi to explain the changes made in the proposed committee substitute. MARCO PIGNALBERI, staff to Representative Cowdery, noted the draft committee substitute is SCS CSSSHB 189(HES), version 0-LS0711\L. SENATOR WARD moved to adopt that version as the working document of the committee. There being no objection, the motion carried. MR. PIGNALBERI, explained the committee substitute contains five key changes recommended by the committee and the attorney general's office. Those changes are as follows. 1. The culpability standard was changed back from "knowingly" to "negligently" throughout the bill; 2. On page 2, lines 12-13, new language was added requiring a sign to be posted in employee break rooms and applies to businesses that have cigarette vending machines in employee break rooms and employ minors; 3. On page 2, lines 29-31, new language was added to clarify that wholesale businesses that also sell retail must adhere to the self service prohibition for retail sales; 4. On page 3, lines 1 and 2, language has been added that applies to shops that sell only tobacco products. Those shops do not allow entry to individuals under the age of 19 so there is no reason to prohibit self-service tobacco displays in those locations. TAPE 98-5, SIDE B 5. Section 6 ties the penalty provision to the occupational licensing statute. It was not clear to the Attorney General's Office that the penalty could be invoked against people who had licenses under that statute. SENATOR LEMAN noted one other significant change: Section 3 (page 2) changes the class B misdemeanor penalty to a violation. MR. PIGNALBERI affirmed that was correct. He also noted that the provision that mandated that maximum effect be given to both HB 159 and HB 189 if enacted was deleted because the vending machine statutes were included in HB 189. Number 570 SENATOR LEMAN advised that current law, and HB 189, state that the violation shall be punishable by a fine of not less than $300. He asked what the maximum amount of the fine for a violation is. MR. PIGNALBERI said a previous speaker testified that the fine could be as high as $1,000, but he suggested asking a representative from the Attorney General's Office. SENATOR LEMAN thought the $300 fine was adequate to change behavior, especially if judgment is swift and sure. SENATOR GREEN asked Mr. Pignalberi to review the difference between the "knowing" and "negligent" standard. MR. PIGNALBERI explained the culpability standard for "negligently" applies to a violation and is a lower standard. If the penalty or fine is increased, the law requires the standard of culpability to be increased, placing a more difficult burden on the State to prove. Law enforcement officials requested the lower penalty because it requires a lower burden of proof and is easier to achieve in the course of a prosecution. ANNE MARIE HOLEN, representing the Sealaska Native Health Board and Citizens to Protect Kids from Tobacco, thanked the committee for considering suggestions made at the last meeting and asked the following questions of the Department of Law. CHAIRMAN WILKEN announced Anne Carpeneti of the Department of Law had joined members at the table. MS. HOLEN asked how this legislation will be enforced in the real world and how police will determine if a vendor is violating the provision that all sales must be clerk-assisted. She questioned whether a police officer can simply look in a store and cite a merchant if the officer sees self-service tobacco displays, or whether the officer would have to witness a purchase attempt. MS. CARPENETI replied she would prefer to have Department of Public Safety personnel answer that but it is her understanding that the purpose of the bill is to avoid having to have sting operations to enforce the tobacco statutes. That is why it requires controlled sales behind the counter. She thought the section that does that could be drafted a little more clearly. Number 525 MS. HOLEN asked how it will be determined that a retailer who sells only tobacco products should be exempted, and whether that retailer could be cited if a teenager entered the store even though a sign is posted requiring those who enter to be 19. MS. CARPENETI said it has been suggested that Section 4(b) be redrafted to clarify that the exception applies only to retailers who sell mainly tobacco products and not the 7-11 stores that sell cigarettes. She thought Ms. Holen's concerns could be addressed in that subsection if it is redrafted. MS. CARPENETI thanked the Chairman for including the Department of Law's suggested amendments in the committee substitute. The department also believes Section 2 (AS 11.76) should be rewritten in terms of positives rather than negatives, for purposes of clarification, and that a penalty provision be added. She added if the provision that applies to retailers who sell only tobacco products is not restricted to those retailers only, it could create a loophole that could be applied to all retailers. Number 496 REPRESENTATIVE COWDERY agreed with the changes suggested by Ms. Carpeneti. CHAIRMAN WILKEN announced the bill will be redrafted and rescheduled next week. MARK HICKEY, representing the Coalition of Citizens to Protect Kids from Tobacco, agreed with the previous speaker's comments. He expressed concern that subsection(b) on page 3, lines 1 and 2, might negatively affect enforcement actions as drafted. He suggested adding a lead in phrase that says, "In the case of a retailer that principally sells only tobacco products,...." SENATOR LEMAN thought the word "only" could be eliminated because some tobacco shops do sell a few other products. REPRESENTATIVE COWDERY stated he will present a revised committee substitute to the committee next week. There being no further business to come before the committee, CHAIRMAN WILKEN adjourned the meeting at 10:02 a.m.