ARIZONA HOUSE OF REPRESENTATIVES
Forty-ninth Legislature – First Regular Session
Minutes of Meeting
House Hearing Room 3 -- 9:00 a.m.
Chairman Weiers called the meeting to order at 9:00 a.m. and the secretary called the roll.
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Mr. Barnes |
Mrs. McGuire |
Mr. Gowan, Vice-Chairman |
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Mr. Crump |
Mr. Patterson |
Mr. Weiers JP, Chairman |
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Ms. Fleming |
Mr. Seel |
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None |
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HB2132 – DPA (8-0-0-0) HB2548 – DPA (8-0-0-0)
HB2235 – HELD HB2610 – DP (5-2-1-0)
HB2514 – DP (5-3-0-0)
CONSIDERATION OF BILLS:
HB2235 - game and fish commissioners; appointment – HELD
Chairman Weiers announced that HB2235 will be held.
HB2514 - amateur radio; structures; accommodation – DO PASS
Vice-Chairman Gowan moved that HB2514 do pass.
Scott Handler, Majority Intern, reviewed the provisions of H2514 (Attachment 1):
· Requires municipal zoning plans to provide for reasonable heights and dimensions for accommodation of amateur radio station emergency service communications antennae and structures.
· Requires county plans to provide for reasonable heights and dimensions for accommodation of amateur radio station emergency service communications antennae and structures in general zoning regulations.
· Requires Homeowners’ Associations (HOAs) to provide for reasonable heights and dimensions for accommodation of amateur radio station emergency communication antennae and structures.
· Makes technical and conforming changes.
Representative Nancy McLain, sponsor, told Members that this is the third year she has introduced this bill; however, it has never been given a hearing in the Senate. She contended that amateur radio operators provide a valuable public service.
In response to Mr. Barnes’ question, Representative McLain answered that the bill stipulates that state and local communities provide reasonable accommodations when an amateur radio operator wants to site one of the antennae necessary for communications and that HOAs concur. Currently, most HOAs are refusing to allow any antennae. The stakeholders are asking for reasonable dialog with HOAs so that something can be worked out that is acceptable to all.
Randy Malick, President, Radio Society of Tucson, in support of HB2514, testified that he provides backup radio communications in case of an emergency. He said that HOAs are very restrictive and disallow many things. Without antennae, operators who work in the public interest are not able to do their job.
Chairman Weiers asked whether this has been discussed with those who oppose antennae in their associations. Mr. Malick replied in the affirmative. He advised that HOAs are adamantly opposed to this and are not willing to compromise other than what the government requires. He said that anything that emits radio frequency outside of a home is not allowed.
In response to Chairman Weiers’ query whether ham radios interfere with cable or satellite reception, Mr. Malick answered that they do not tend to interfere. In past years, people had antennas on their roof and there was interference; however, with digital reception, interference is a nonissue.
Mr. Patterson asked about the type of services that ham radio operators provide. Mr. Malick related that in the early days of Hurricane Katrina, amateur radio communication was the only thing that was available. Operators provide communications for many events around Tucson. They work with hospitals and law enforcement, and with the Office of Emergency Management for any kind of emergency or natural disaster that might occur, such as flooding.
John Cline, representing self, spoke in support of HB2514. He stated that the amateur radio community is a national resource as well as an indispensable local and state resource. Amateur radio service is a voluntary, noncommercial communication service that plays an important role in providing emergency communications. He referred to Hurricane Katrina and the terrorism acts of 9/11. Amateur radio service has consistently been the most reliable means of communications in emergencies when other means of communication have failed or been overloaded. He advised that 27 other states have passed similar legislation. He said he looks forward to Members’ support of this bill.
Ryan Anderson, Community Associations Institute, testified in opposition to HB2514. He asserted that this is about contractual rights. When an individual signs a contract to live in a community, the HOA bylaws do not allow for ham radio towers. He related that the Institute would like to have an open dialog on this issue with communities to have some local control to set height and placement restrictions. He said this is the third year this legislation has come forward and there has not been an interest expressed to the Institute to allow communities to have some local control. He personally would object to having a 40 foot tower in his community because he believes it would affect property values.
Mr. Seel asked whether HOAs discuss the issue of ham radio towers when a potential buyer is considering the purchase of a home in a community. Mr. Anderson declared that contracts are very clear that antennae are excluded; however, some communities that allow towers do have restrictions. He said that if ham radio was very important to an individual, that person would consider the HOA by-laws before purchasing a home in that particular community.
In response to Vice-Chairman Gowan, Mr. Anderson contended that HOAs have the ability to enforce their restrictions. He said he does not know what the middle ground is but in the past the Institute has experienced opposition to changing the language.
Michael Leboeuf, representing self, in support of HB2514, advised that he is a ham radio operator. He said that in addition to being a hobby, amateur radios are also used as a national emergency backup. He said they were used as communication tools in Hurricane Katrina and 9/11, as well as for wildfires and earthquakes. On the HOA issue, he said the rights of ham operators get trampled on. He said that studies have shown that antennae are no threat to property values or quality of life, and he asked Members to consider the rights of ham operators to practice their hobby. He said that someone’s life may be saved by this.
Sarah Crank, representing self, testified in support of HB2514. She identified herself as a ham radio operator and spoke of the important role of ham radio operations since 9/11. HOA rules do not allow for reasonable accommodation of towers; however, amateur radios are a great resource in time of need.
Chairman Weiers announced the names of those who signed up in support of HB2514 but did not speak:
Roland Kelly, representing self
Jim Wortham, representing self
Fred Streeter, representing self
William Maynard, representing self
Robert Miller, representing self
Pat Haruff, Coalition of Home Owners for Rights and Education (CHORE)
Jessica Brown, representing self
Bryan Ginter, representing self
Vice-Chairman Gowan announced the names of those who signed up in opposition to HB2514 but did not speak:
Mary Arnold, representing self
Question was called on the motion that HB2514 do pass. The motion carried by a roll call vote of 5-3-0-0 (Attachment 2).
HB2548 - critical infrastructure; fuel facilities – DO PASS AMENDED
Vice-Chairman Gowan moved that HB2548 do pass.
Scott Handler, Majority Intern, summarized the provisions of HB2548 (Attachment 3):
· Broadens the definition of fuel facility to include bulk storage transmission facilities or terminals with 2.5 million or more barrels of storage capacity and removes the provision excluding facilities located on the premises of a commercial airport.
· Requires fuel facilities to update the Automated Critical Asset Management System (ACAMS) instead of providing a written report to the Department of Public Safety (DPS) regarding fuel facility security.
· Eliminates requirements for confidentiality protocols for the report and specifies that the report is subject to the disclosure guidelines, procedures and penalties contained in the current critical infrastructure statutes.
· Defines the term Automated Critical Asset Management System.
· Makes technical and conforming changes.
Vice-Chairman Gowan moved that the Gowan two-page amendment dated 3/10/09 (Attachment 4) be adopted.
Mr. Handler explained that the two-page amendment (Attachment 4) requires each county’s emergency management organization to maintain a list of any rapid security response organizations within the county.
Representative Chad Campbell, sponsor, testified that this bill is a clean-up of legislation that he sponsored last year which required reporting from fuel facilities to Homeland Security which, in turn, reports those findings every five years to the Governor’s Office, the President of the Senate and the Speaker of the House. The intent of the bill is to create a streamlined process about security measures being taken at these types of facilities to counteract any type of terrorism threat or disaster scenarios that might occur. This is for information sharing purposes and does not force compliance. The bill clarifies that the information be submitted through the Automated Critical Asset Management System.
Mr. Seel asked whether this
modernizes the communication without cost.
Representative Campbell replied in the affirmative. He said this streamlines
the process and he mentioned that there is no cost associated with it.
Chairman Weiers announced the names of those who signed up in support of HB2548 but did not speak:
Tim Grubbs, Legislative Liaison/Finance Manager, Arizona Department of Homeland Security
Heather Bernacki, Government Relations Associate, Bulletproof Securities, Inc.
Catherine Mayorga, Vice President, Public Affairs, Tempe Chamber of Commerce
Karen Peters, Lobbyist, City of Phoenix
Eric Emmert, East Valley Chambers of Commerce Alliance
Bryan Ginter, representing self
Tom Dorn, Lobbyist, Bulletproof Securities, Inc.
Chairman Weiers announced the names of those who signed up as neural on HB2548 but did not speak:
Robert Shuler, CalJet
Mark Ellery, Quality Assurance Manager, Caljet
Susie Stevens, Lobbyist, Western States Petroleum Association
Question was called on the motion that the Gowan two-page amendment dated 3/10/09 (Attachment 4) be adopted. The motion carried.
Vice-Chairman Gowan moved that HB2548 as amended do pass. The motion carried by a roll call vote of 8-0-0-0 (Attachment 5).
HB2610 - civil liability; affirmative defenses – DO PASS
Vice-Chairman Gowan moved that HB2610 do pass.
Thomas Adkins, Majority
Research Analyst, reviewed the provisions of HB2610
(Attachment 6):
· Specifies that in product liability cases:
· The defendant is not liable if the product was used contrary to instructions and the intended consumer, rather than injured person, knew or should have known of the instructions.
· Changes made to product warnings after the defendant first sold the product are not admissible as direct evidence of a defect.
· Includes decedents in affirmative defense statutes related to civil and criminal actions.
· Applies current legal presumptions in civil liability actions or claims to circumstances when a plaintiff is attempting to commit, committing or fleeing after having committed or attempted to commit a misdemeanor criminal act.
· Specifies the following presumptions:
· A victim or peace officer is presumed to be acting reasonably if the victim or peace officer threatens to use or uses a police tool product to protect himself or another person against another person’s use or attempted use of physical force or deadly physical force.
· A victim or peace officer is presumed to be acting reasonably if the victim or peace officer threatens to use or uses physical force or deadly physical force to protect another person from another person’s use of physical force or deadly physical force.
· This state or a political subdivision is presumed to have reasonably hired and trained its peace officers to use physical force or deadly physical force if a peace officer threatens to use or uses physical force or deadly physical force to protect another person from another person’s use or attempted use of physical force or deadly physical force.
· In civil actions for any injury or death caused by a police tool product where the product conforms with the generally recognized state of the art applicable to the safety and warnings of the product at the time the product was designed, manufactured, packaged and labeled, the following apply:
· Requires police tool products that cause the physical harm and any accompanying warnings to be deemed not defective.
· Prohibits the manufacturer of police tools from being liable for damages.
· Requires the court to grant calendar preference and schedule an expedited hearing if the defendant files a motion to dismiss or a motion for summary judgment and notice of the motion is served pursuant to court rules.
· Requires the court to award the moving party costs and attorney fees if the court grants the motion to dismiss or for summary judgment.
· Defines the terms costs and plaintiff.
· Makes technical and conforming changes.
Chairman Weiers announced the names of those who signed up in support of HB2610 but did not speak:
Amber Wakeman, Government Relations, City of Tempe
Jimmy Chavez, President, Arizona Highway Patrol Association
Bill Rogers, Arizona Highway Patrol Association
Pat Eagan, Arizona Highway Patrol Association
David Stopke, Arizona Highway Patrol Association
Mike Haughey, Arizona Highway Patrol Association
Jim Bee, Arizona Highway Patrol Association
Eddie Simpson, Arizona Highway Patrol Association
Tim Kvochick, Arizona Highway Patrol Association
Chris Dunn, Arizona Highway Patrol Association
Raul Garcia, Arizona Highway Patrol Association
Kevin McNichols, Arizona Highway Patrol Association
Chris Lentz, Arizona Highway Patrol Association
Bert Cheney, Arizona Highway Patrol Association
Nathan Teel, Arizona Highway Patrol Association
Matt Rosemeyer, Arizona Highway Patrol Association
John Smith, Arizona Highway Patrol Association
Michael Strohmeyer, Arizona Highway Patrol Association
Bob Gilbert, Arizona Highway Patrol Association
James Oien, Arizona Highway Patrol Association
Kelsey Lundy, Lobbyist, Arizona Police Association, Associated Highway Patrolmen of Arizona Mark Hafkey, President, Phoenix Police Sergeants & Lieutenants Association
Harold Coleman, Officer, representing self
Dave Adams, D&G Chair, Phoenix Police Sergeants & Lieutenants Association
David Kothe, Police Officer, representing self
Richard Greco, Officer, representing self
Andy Swann, President, Associated Highway Patrolmen of Arizona
Rob Dalager, City of Phoenix Police Department
Javier Cota, Police Sergeant, representing self
Chairman Weiers announced the names of those who signed up in opposition to HB2610 but did not speak:
Janice Goldstein, Arizona Trial Lawyers Association
Bryan Ginter, representing self
Steve Patience, Lawyer, Arizona Trial Lawyers Association, in opposition to HB2610, testified that the Association agrees with almost all of the changes in this legislation; however, the Association does not agree with the provision that gives total immunity to the manufacturer of the police tool product, such as TASER International, by giving them more preference than other product manufacturers. He explained that in a product liability case, a product manufacturer has a state-of-the art defense and if they can prove that they complied with the state of the art, they are not liable. Under this proposal, in a misdemeanor situation, the manufacturer of a police tool, such as TASER International, is not liable if they conform generally to the recognized state of the art. He said he does not understand why TASER International is being given preference over others. An additional concern is that if the defendant, such as TASER International, files a motion to dismiss or a motion for summary judgment, and wins the motion, the defendant is granted attorney fees and costs; but it does not say anything about the plaintiff being awarded attorney fees and costs if the defendant loses the motion. He asserted that the bill is very broad and one-sided, and he asked Members to vote against this legislation.
In response to Ms. Fleming’s query about TASER International, Mr. Patience explained that TASER International is the manufacturer of the taser gun. He said the Association has no problem with a police officer or a victim being presumed to act reasonably in a situation where they are defending themselves or another person.
Mr. Seel asked whether this bill significantly reduces the number of potential cases that the Trial Lawyers Association may be presenting. Mr. Patience said he does not see how it would. The concern is with the misdemeanor situation. If the police tool device is defective, TASER International would not be held liable.
Mr. Barnes asked Mr. Patience whether this bill will affect whether he will win or lose more cases. Mr. Patience responded that it is not about winning; it is about fairness. Mr. Barnes said he interprets this as being about the pocketbook. Mr. Patience reiterated that if product manufacturers comply with the state of the art, they will not be liable. He said the issue is whether this is fair and equitable.
Discussion ensued on product liability, defective products, and rebuttable presumption.
Mike Williams, Arizona Police Association, Arizona Highway Patrol Association, Phoenix Law Enforcement Association, City of Tempe, Lake Havasu City and Town of Queen Creek, testified in support of HB2610. He advised that he also represents TASER International. He pointed out that law enforcement officers carry many weapons on their tool belt, yet the trial lawyers like to bring up TASER International. He said it is a rebuttable presumption if the product is defective and not in good working order regardless of whether it is the firearm, the mace, or anything else that a police officer uses. He noted that a lawsuit can proceed if it can be proven that the tool was defective.
Mr. Seel commented that the person can still have his day in court. Mr. Williams said that is the intent.
In reply to Chairman Weiers’ request, Mr. Williams related he can set up a taser demonstration for the Committee.
Levi Bolton, Vice President, Phoenix Law Enforcement Association, expressed support of HB2610. He echoed the comments made by Mr. Williams. He said that as far as the litigation system works, to get to the tool manufacturer, one still has to go through the officer as well, so police officers do get litigated along with the manufacturer. On behalf of the 2,600 rank and file officers of the City of Phoenix, he asked that Members support this bill in its entirety.
Jerry Landau, Legislative Liaison, Arizona Supreme Court, Administrative Office of the Courts, testified that the Court is neutral on the policy of HB2610. He expressed a concern with page 3, lines 9 through 12, which would place these types of cases in priority on a civil calendar. He said he has spoken with the Chairman and Mr. Williams and agreement has been reached to take that provision out of the bill. He explained that the reason for removing that language is because under current law, there are 34 priorities in statute and priorities slow the process down; they cause a continuous resetting of the calendar.
Mr. Barnes asked Mr. Landau whether he will support the bill if the sponsor is not agreeable to removing that language from the bill. Mr. Landau said the Court does have concerns about placing another priority in the system and the resultant delays in the justice system.
Mr. Williams advised the sponsor does not have a problem with removing that language.
Jon Hinz, Director, Fairness and Accountability in Insurance Reform, in opposition to HB2610, stated that he strongly opposes the addition of “misdemeanor” in the bill. He said he primarily works on issues that are against consumers. He expressed strong support of the police and all the actions that are taken by police officers to keep the public safe; however, this bill is about getting TASER “off the hook.” This is about taking a weapon that is recognized as dangerous and giving the manufacturer total immunity against any action against them. He maintained that this is about responsibility and he asserted that the manufacturer should be held accountable. He stated that no business deserves total immunity.
Question was called on the motion that HB2610 do pass. The motion carried by a roll call vote of 5-2-1-0 (Attachment 7).
HB2132 - scrap metal dealers; electronic submission – DO PASS AMENDED
Vice-Chairman Gowan moved that HB2132 do pass.
Thomas Adkins, Majority Research Analyst, stated that HB2132 requires scrap metal dealers to submit electronic records of the receipt of scrap metal and requires the Department of Public Safety (DPS) to establish by rule electronic submission standards (Attachment 8).
Vice-Chairman Gowan moved that the Weiers 23-line amendment dated 3/10/09 (Attachment 9) be adopted.
Mr. Adkins explained that the 23-line amendment (Attachment 9) makes the reporting requirements in this bill identical to the reporting requirement section contained in the scrap metal omnibus bill. The amendment also requires the submission standards to be compatible with software programs generally used by the scrap metal industry and states that scrap metal dealers only have to submit the information to DPS. DPS is then required to make the information available over the internet to other law enforcement agencies. The amendment delays the effective date to September 1, 2010.
Chairman Weiers announced the names of those who signed up in support of HB2132 but did not speak:
Trish Hart, Lobbyist, Arizona Scrap Recyclers Association
Robert Ticer, Lieutenant, Arizona Department of Public Safety
Bryan Ginter, representing self
Question was called on the motion that the Weiers 23-line amendment dated 3/10/09 (Attachment 9) be adopted. The motion carried.
Vice-Chairman Gowan moved that HB2132 as amended do pass. The motion carried by a roll call vote of 8-0-0-0 (Attachment 10).
Chairman Weiers announced that he is trying to put together a field trip to the Boeing Company next Wednesday. He asked Members to advise him as soon as possible whether they plan to attend because he will need to post the meeting if a quorum intends to participate.
Without objection, the meeting adjourned at 10:38 a.m.
___________________________________
Joanne Bell, Committee Secretary
March 26, 2009
(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)
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COMMITTEE ON MILITARY AFFAIRS
AND PUBLIC SAFETY
9
March 11, 2009
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