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House Calendar

FRIDAY, APRIL 16, 1999

101st DAY OF BIENNIAL SESSION

ORDERS OF THE DAY

ACTION CALENDAR

Action Postponed Until Friday, April 16, 1999

H. 187

An act relating to podiatry.

Pending Question: Shall the bill be amended as recommended by the Committee on Government Operations?

Rep. Richardson of Weathersfield, for the Committee on Government Operations, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 26 V.S.A. § 321(3) is amended to read:

(3) *["Practice of podiatry" means the medical, mechanical, surgical, electrical, manipulation, strapping and bandaging treatment of the ailments pertaining to the human foot, not requiring amputation of the foot or toes. Podiatrists may administer local anesthetics in conjunction with treatment for which they are licensed.]* "Practice of podiatry," by a podiatric physician, means any medical, mechanical, surgical, electrical, manipulation, strapping or bandaging treatment of the ailments pertaining to the human foot and lower leg distal to the myotendinous junction of the triceps surac. In the case of surgical treatment above the ankle, the following limitations on the podiatrist's scope of practice shall apply:

(A) if the podiatrist has hospital privileges, practice shall be consistent with those privileges;

(B) if the podiatrist is board eligible or certified, practice shall be consistent with such eligibility or certification; or

(C) practice shall be consistent with an endorsement by the board of medical practice based on the podiatrist's level of education, training and experience.

If spinal or general anesthesia is required, it shall be administered by a health care professional regulated under this title who is authorized to administer anesthesia within the scope of his or her practice.

(Committee vote: 11-0-0)

J.R.H. 84

(For text see House Journal 4-8-99)

NEW BUSINESS

Third Readings

H. 97

Amendment to be offered by Rep. Heath of Westford to H. 97

For the first six months, a junior operator license allows unsupervised driving from one half hour before sunrise until one half hour after sunset. At all other times during the first six months, the junior operator must be supervised by a licensed operator at least 21 years of age. Following the first six months, a junior operator license allows unsupervised driving at all times.

H. 557

An act relating to an omnibus Fish and Wildlife Act.

Favorable with Amendment

H. 111

An act relating to telecommunication fraud.

Rep. Anderson of Woodstock, for the Committee on Commerce, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

13 V.S.A. § 2021 is amended to read:

§ 2021. *[FRAUD ON OWNERS OF COMMUNICATIONS SYSTEMS]*

FRAUD AND RELATED ACTIVITY IN CONNECTION WITH

TELECOMMUNICATIONS SERVICES

*[A person who, with intent to defraud or to aid another to defraud any person of the lawful charge in whole or in part for any telecommunications service, obtains, or attempts to obtain, or aids another to obtain or to attempt to obtain any telecommunications service:]* *[(1) By charging such service to an existing telephone number or credit card number without the authority of the subscriber thereto or the legitimate holder thereof, or]* *[(2) By charging such service to a nonexistent, false, fictitious, or counterfeit telephone number or credit card number or to a suspended, terminated, expired, cancelled, or revoked telephone number or credit card, or]* *[(3) By use of a code, prearranged scheme, or other similar stratagem whereby said person, in effect, by using telephone equipment exclusively sends or receives information]* *[shall be fined not more than $25.00 for the first offense and not more than $250.00 for each succeeding offense.]* *[For the purposes of this section "telecommunications" shall mean communications at a distance as by telegraph, telephone, cable, television or similar electronic devices.]*

(a) Definitions. As used in this section:

(1) "Telecommunications device" means any type of instrument, device, machine or equipment which is capable of transmitting or receiving interactive two-way electromagnetic communication, including voice, image, data and information, or any part of such instrument, device, machine or equipment or any computer circuit, computer chip, electronic mechanism, or other component which is capable of facilitating the transmission or reception of any interactive two-way electromagnetic communication.

(2) "Telecommunications service" shall have the same definition as in 30 V.S.A. § 203(5).

(3) "Telecommunications service provider" means a person or entity providing telecommunications service, including, but not limited to, a cellular, paging or other wireless communications company or other person or entity which, for a fee, supplies the facility, cell site, mobile telephone switching office or other equipment or telecommunications service.

(4) "Unlawful telecommunications device" means any item including a telecommunications device, identification code or computer code that, alone or in conjunction with any other item, acquires or facilitates the acquisition of telecommunications service without the consent of the telecommunications service provider.

(5) "Traffic" means to sell, buy, receive, possess, distribute, exchange, give, transfer or dispose of an unlawful telecommunications device or related equipment used or useful with such device, or plans or instructions for making, assembling or using the same, to another, or to offer or agree to do the same.

(6) "Reader" means a device which is capable of, or has been manufactured, assembled, altered, modified, programmed or reprogrammed so as to be capable of acquiring or facilitating the acquisition of an electronic serial number, mobile identification number, personal identification number or any code, or encoded or encrypted transmission, useful in originating, facilitating or transmitting telecommunications service without the consent of the telecommunications service provider.

(b) Any person who:

(1) With intent to defraud, charges telecommunications service to an existing telephone number, calling or credit card number, account number or other identifying subscriber number without the authority of the subscriber thereto or the legitimate holder thereof or the telecommunications service provider; or

(2) With intent to defraud, charges telecommunications service to a nonexistent, false, fictitious, or counterfeit telephone number, calling or credit card number, account number or other identifying subscriber number or to a suspended, terminated, expired, cancelled or revoked telephone number, credit card number, account number or other identifying subscriber number; or

(3) With intent to defraud, obtains telecommunications service using a false, altered or stolen identification; or

(4) With intent to defraud, possesses, makes, assembles or traffics in an unlawful telecommunications device or modifies, alters, programs or reprograms a telecommunications device designed, adapted or which can be used:

(A) to commit a theft of telecommunications service or to acquire or facilitate the acquisition of telecommunications service without the consent of the telecommunications service provider; or

(B) to conceal or to assist another to conceal from any telecommunications service provider or governmental authority, including any law enforcement authority, the existence or place of origin or destination of any telecommunications; or

(5) With intent to defraud, possesses, makes, assembles, uses, or traffics in or otherwise transfers to another or offers, promotes or advertises for sale any:

(A) plans or instructions for making, assembling or using an unlawful telecommunications device; or

(B) material, including any hardware, cable, tool, data or information, computer, computer system or network, software, hardware, reader or other equipment, knowing that the purchaser or a third person intends to use the material for the manufacture of an unlawful telecommunications device or other unlawful use as defined in this section; or

(6) With intent to defraud, obtains or attempts to obtain telecommunications service by the use of an unlawful telecommunications device or without the consent of the telecommunications service provider;

shall:

(A) If the value of the charges for the telecommunication service obtained or attempted to be obtained is less than $250.00, be imprisoned for not more than six months or fined not more than $500.00, or both.

(B) If the value of the charges for the telecommunications service obtained or attempted to be obtained is more than $250.00 but less than $1,000.00, be imprisoned for not more than one year or fined not more than $1,000.00, or both.

(C) If the value of the charges for the telecommunications service obtained is more than $1,000.00, be imprisoned for not more than five years or fined not more than $5,000.00, or both.

(D) If the violation is a second or subsequent offense, a person who violates this section shall be imprisoned for not more than five years or fined not more than $20,000.00, or both.

(c) Civil action. A telecommunications service provider aggrieved by a violation of this section may, in a civil action in any court of competent jurisdiction, obtain appropriate relief, include preliminary and other equitable or declaratory relief, compensatory and punitive damages, reasonable investigation expenses, costs of suit and attorney's fees.

(Committee vote: 10-0-1)

Rep. Hingtgen of Burlington, for the Committee on Judiciary, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

13 V.S.A. § 2021 is amended to read:

§ 2021. *[FRAUD ON OWNERS OF COMMUNICATIONS SYSTEMS]*

FRAUD AND RELATED ACTIVITY IN CONNECTION WITH

TELECOMMUNICATIONS SERVICES

*[A person who, with intent to defraud or to aid another to defraud any person of the lawful charge in whole or in part for any telecommunications service, obtains, or attempts to obtain, or aids another to obtain or to attempt to obtain any telecommunications service:]* *[(1) By charging such service to an existing telephone number or credit card number without the authority of the subscriber thereto or the legitimate holder thereof, or]* *[(2) By charging such service to a nonexistent, false, fictitious, or counterfeit telephone number or credit card number or to a suspended, terminated, expired, cancelled, or revoked telephone number or credit card, or]* *[(3) By use of a code, prearranged scheme, or other similar stratagem whereby said person, in effect, by using telephone equipment exclusively sends or receives information]* *[shall be fined not more than $25.00 for the first offense and not more than $250.00 for each succeeding offense.]* *[For the purposes of this section "telecommunications" shall mean communications at a distance as by telegraph, telephone, cable, television or similar electronic devices.]*

(a) Definitions. As used in this section:

(1) "Telecommunications device" means any device which is capable of transmitting or receiving telecommunications service.

(2) "Telecommunications service" shall have the same definition as in 30 V.S.A. § 203(5).

(3) "Telecommunications service provider" means a person providing telecommunications service.

(4) "Unlawful telecommunications device" means any item including a telecommunications device, identification code or computer code that, alone or in conjunction with any other item, acquires or facilitates the acquisition of telecommunications service without the consent of the telecommunications service provider.

(5) "Traffic" means to sell, buy, receive, distribute, exchange, offer, advertise, transfer or dispose of an unlawful telecommunications device, related equipment or plans or instructions for manufacturing or using such devices.

(6) "Reader" means a device which is capable of acquiring or facilitating the acquisition of an electronic serial number, mobile identification number, personal identification number or any code, or encoded or encrypted transmission, useful in originating, facilitating or transmitting telecommunications service without the consent of the telecommunications service provider.

(b) A person who, with intent to defraud:

(1) Charges telecommunications service to an existing telephone number, calling or credit card number, account number or other identifying subscriber number without authorization; or

(2) Charges telecommunications service to a false, inactive, counterfeit, or stolen telephone number, calling or credit card number, account number or other identifying subscriber number; or

(3) Obtains or attempts to obtain telecommunications service by the use of an unlawful telecommunications device;

(A) If the value of the charges for the telecommunication service obtained or attempted to be obtained is less than $250.00, a person who is convicted of violating this subsection shall be sentenced as follows:

(i) First offense. Imprisoned for not more than six months or fined not more than $500.00, or both.

(ii) Second or subsequent offense. Imprisoned not more than two years or fined not more than $1,000.00, or both.

(B) If the value of the charges for the telecommunications service obtained or attempted to be obtained is more than $250.00 but less than $1,000.00, a person convicted of violating this subsection shall be sentenced as follows:

(i) First offense. Imprisoned for not more than one year or fined not more than $1,000.00, or both.

(ii) Second or subsequent offense. Imprisoned for not more than five years or fined not more than $5,000.00, or both.

(C) If the value of the charges for the telecommunications service obtained is more than $1,000.00, a person convicted of violating this subsection shall be sentenced as follows:

(i) First offense. Imprisoned for not more than five years or fined not more than $5,000.00, or both.

(D) Second or subsequent offense. Imprisoned for not more than five years or fined not more than $20,000.00, or both.

(c) A person who knowingly:

(1) Possesses, manufactures or traffics in an unlawful telecommunications device or modifies, programs or reprograms a telecommunications device designed, adapted or which can be used:

(A) to commit a theft of telecommunications service; or

(B) to conceal or to assist another to conceal from any telecommunications service provider or governmental authority the existence or place of origin or destination of any telecommunications service; or

(2) Manufactures or traffics in:

(A) plans or instructions for manufacturing or using an unlawful telecommunications device except where the person manufacturers or traffics in plans or instructions which are used for bonafide educational purposes exclusively; or

(B) Material, data, computer facilities, computer software, computer hardware, reader or other equipment, knowing that the purchaser or a third person intends to use the material for the manufacture of an unlawful telecommunications device or another use prohibited by this section.

(C) A person convicted of violating this subsection shall be sentenced as follows:

(i) First offense. Imprisoned for not more than two years or fined not more than $5,000.00, or both.

(ii) Second or subsequent offense. Imprisoned not more than five years or fined not more than $20,000.00, or both.

(d) Civil action. A person injured as a result of a violation of this chapter may bring a civil action against the violator for damages, including punitive damages where warranted, and such other relief as the court deems appropriate.

(Committee vote: 10-0-1)

H. 290

An act relating to an endowment trust fund to provide financial aid to Vermont postsecondary students and institutions.

Rep. Marron of Stowe, for the Committee on Education, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. 16 V.S.A. chapter 89 is redesignated to read:

CHAPTER 89. *[POST-SECONDARY]* POSTSECONDARY REVIEW *[ENTITY]* AND FUNDING

Sec. 2. 16 V.S.A. § 2883 is added to read:

§ 2883. VERMONT HIGHER EDUCATION ENDOWMENT TRUST FUND

(a) A Vermont higher education endowment trust fund is established to be comprised of the following:

(1) Appropriations made by the general assembly.

(2) Funds raised by the estate tax levied under chapter 190 of Title 32 which, on January 1, are more than 125 percent in excess of the amount projected by the emergency board in the annual forecast made the previous July pursuant to section 305a of Title 32.

(3) Contributions from private sources.

(b) The state treasurer may invest monies in the fund.

(c) In August of each year, the state treasurer shall withdraw five percent of the assets which were in the fund on the previous July 30, and shall divide the amount equally the University of Vermont, the Vermont state colleges and the Vermont student assistance corporation. The University of Vermont and the Vermont state colleges shall use the funds to provide nonloan financial aid to Vermont students attending their institutions; the Vermont student assistance corporation shall use the funds to provide nonloan financial aid to Vermont students attending a Vermont postsecondary institution.

(d) In August of each year, the commission on higher education may authorize the state treasurer to make an amount equal to up to two percent of the assets which were in the fund on the previous July 30 available to Vermont public institutions. The funds may be used only for the purpose of creating or increasing a permanent endowment. A public institution may withdraw funds upon receipt of private donations which are double the amount withdrawn and upon a finding by the council that the project will be used to create or increase a permanent endowment.

(e) Annually, the state treasurer shall report to the commission on higher education on the investments made with fund monies.

(f) All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund. Interest accruing from the fund which is not withdrawn pursuant to this subsection shall remain in the fund.

Sec. 3. 16 V.S.A. § 2884 is added to read:

§ 2884. COMMISSION ON HIGHER EDUCATION

(a) A commission on higher education is created for the purpose of:

(1) developing and, when necessary, refining Vermont's goals for higher education,

(2) developing and, when necessary, updating a multiyear plan to meet Vermont's higher education needs,

(3) annually recommending to the governor a level of state financial support for higher education which best uses state resources to meet the goals developed by the commission,

(4) reviewing expenditures made from the higher education endowment trust fund, evaluating the impact of the expenditures made, and making recommendations to the general assembly for further expenditures from the fund.

(b) The commission shall consist of 14 members as follows:

(1) The president of the University of Vermont or a designee;

(2) The president of the Vermont student assistance corporation;

(3) The chancellor of the Vermont state colleges;

(4) A sitting president of a Vermont state college, appointed by the chancellor in consultation with the governor;

(5) The president of the association of Vermont independent colleges and one sitting president of an independent college, selected by the association in consultation with the governor;

(6) A representative of the Vermont low income advocacy council;

(7) Two members at large appointed by the governor;

(8) Four legislative members, who shall be entitled to per diem expenses from the legislative appropriation, as follows:

(A) Two members from the house appointed by the speaker of the house;

(B) Two members of the senate appointed by the committee on committees;

(9) The secretary of administration who shall be the chair.

(c) The executive, legislative and higher education staff shall provide support to the commission as appropriate to accomplish its tasks.

(d) The cost of the commission, including any costs for per diem and expenses for at-large members and the representative of the low income advocacy council, shall be equally apportioned among the following: the administration, the University of Vermont, Vermont state colleges, the Vermont student assistance corporation and the association of independent colleges.

Sec. 4. APPROPRIATION

In fiscal year 1999, the amount of $10 million is appropriated from the general fund into the Vermont higher education endowment trust fund created under 16 V.S.A. § 2883.

Sec. 5. EFFECTIVE DATE

This act shall take effect on passage.

(Committee vote: 11-0-0)

Rep. Brooks of Montpelier, for the Committee on Appropriations, recommends the bill ought to pass when amended as recommended by the Committee on Education and when further amended as follows:

First: In Sec. 2, 16 V.S.A. § 2883(a)(2) by striking the subdivision in its entirety and inserting in lieu thereof a new subdivision (2) to read:

(2) In any year in which a general fund surplus exists and that the general fund stabilization reserve is funded to its statutory level, funds raised by the estate tax levied under chapter 190 of Title 32 which are more than 125 percent in excess of the amount projected by the emergency board in the July annual forecast made pursuant to section 305a of Title 32.

Second: In Sec. 4. By striking the Sec. in its entirety and renumbering Sec. 5 to be Sec. 4

Third: In the newly renumbered Sec. 4, by striking the Sec. in its entirety and inserting in lieu thereof a new Sec. 4 to read:

Sec. 4. EFFECTIVE DATES

(a) This act shall take effect on July 1, 1999.

(b) Fiscal year 2000 shall be the first year in which funds raised by the estate tax are eligible for payment to the Vermont Higher Education Endowment Trust Fund pursuant to subdivision 2883(a)(2) of Title 16.

(Committee vote: 10-0-1)

Amendment to be offered by Rep. Mazur of South Burlington the proposal of amendment of the Committee on Education to H. 290

First: In Sec. 3, 16 V.S.A. § 2884(a)(1) following the words "higher education" by inserting before the comma the words "and performance indicators that comport with the following goals:

(A) Higher education institutions work to ensure that programs and services are affordable and accessible to all Vermonters.

(B) Higher education institutions support collaboration with K-12 schools, technical centers, other educational institutions, the private sector, and government agencies in order to develop a program important to the state and able to preserve Vermont's quality of life and environment.

(C) Higher education institutions invest in technology, infrastructure, programs and staff in order to increase enrollment in programs that support state and student goals for citizenship, economic development, employment opportunities, research missions and healthy communities.

(D) Higher education institutions work efficiently to contain costs, encourage private funding to support the budget and commit to continuous assessment of programs and services in order to ensure that they are of high quality as reflected in their graduates and enrolled students."

Second: In Sec. 3, 16 V.S.A. § 2884, following subsection (a) by inserting a new subsection (b) to read:

business community, regional economic community directors, low income advocacy council and the Department of Employment Training in determining which performance indicators best illustrate the goals listed in subdivision (a)(1) of this title.

And by relettering the subsections of 16 V.S.A. § 2884 following the new subsection (b) to be alphabetically correct.

Third: In Sec. 3, in the newly relettered 16 V.S.A. § 2884(c)(7) following the word "governor" and before the semicolon by inserting the words ", one to represent business interests and one to represent school board members"

Favorable

H. 446

An act relating to water commissioners.

Rep. Barbieri of Wallingford, for the Committee on Local Government, recommends the bill ought to pass.

( Committee Vote: 6-0-2)

Senate Proposal of Amendment

H. 119

For Action Under Rule 52

J.R.H. 88

Joint resolution honoring the Vermont Scholars and Faculty of Whitcomb Junior-Senior High School.

(For text see House Journal 4-15-99)

NOTICE CALENDAR

Committee Bill for Second Reading

H. 558

An act relating to allowing the use of snowmobiles on the Waterbury Reservoir.

(Rep. Brown of Walden will speak for the Committee on Fish, Wildlife and Water Resources.)

Favorable with Amendment

H. 555

An act relating to city of Barre charter.

Rep. Baker of West Rutland, for the Committee on Local Government, recommends the bill be amended as follows:

(Committee vote: 8-0-0)

Favorable

H. 302

An act relating to designating the state pie and the state fruit.

Rep. Cleland of Northfield, for the Committee on Agriculture, recommends the bill ought to pass.

( Committee Vote: 11-0-0)

H. 549

An act relating to miscellaneous adjustments to the state, teachers and municipal retirement systems.

(Rep. Atkins of Winooski will speak for the Committee on Government Operations.)

Rep. Kinsey of Craftsbury, for the Committee on Appropriation, recommends the bill ought to pass.

( Committee Vote: 11-0-0)

Ordered to Lie

H. 542

J.R.H. 28

J.R.H. 85

Joint resolution relating to Department of Forests, Parks and Recreation property transactions.

Joint Resolution to be offered by Rep. Johnson of Canaan

J. R. H. 89

Joint resolution congratulating the Newark Balkan Chorus on its appearances at the 1999 National Association of Performing Arts Educators' Winter Choral Festival

Offered by: Representative Johnson of Canaan

Whereas, Balkan choral singing is melodious music that choral ensembles from that part of the world have proudly sung for generations, and

Whereas, this unique repertoire is now finding appreciative audiences in North America, and

Whereas, under the skillful direction of Newark Street School teacher Evanne Weirich, nine young women choristers, including Elly Barksdale, Erin Barksdale, Barbara Bedor, Jericho Bicknell, Chelsea Gonyer, Adah Holeman, Iris Leslie, Nichole Wimbiscus and Anna Winsor proudly and beautifully perform this historically descriptive and inspiring a capella music under the banner of the Newark Balkan Chorus, and

Whereas, the young singers of the Newark Balkan Chorus have earned a reputation for outstanding musicianship that has spread beyond the borders of Vermont, and

Whereas, as evidence of their outstanding performance skills, they were honored with an invitation to participate in the prestigious 1999 National Association of Performing Arts Educators' Winter Choral Festival in New York City, and

Whereas, the Newark Balkan Chorus' festival performances were on Broadway and at Carnegie Hall, one of the world's most famous concert venues, and

Whereas, the Newark Balkan Chorus was one of only eight North American musical organizations to be honored with a festival invitation, and

Whereas, the Newark Balkan Chorus has proudly placed the town of Newark, Vermont on the nation's musical map, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly congratulates choral director Evanne Weirich and the members of the Newark Balkan Chorus on being selected to perform at the 1999 National Association of Performing Arts Educators' Winter Choral Festival and extends its best wishes to this fine musical organization for continued success, and be it further

Resolved: That the Secretary of State be directed to send a copy of this resolution to Evanne Weirich at the Newark Street School.

PUBLIC HEARINGS

Meetings

INFORMATION NOTICE

The following grant was recently received by the Joint Fiscal Committee:

JFO #1854 - $6,568.55 grant from the Federal Emergency Management Agency (FEMA) to the Department of Public Safety, Division of Emergency Management. This grant will be used by the Department's financial staff to fund training in the area of grant processing (and travel to the training site). [JFO received 04/15/99]