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Journal of the House

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WEDNESDAY, APRIL 21, 1999

At nine o'clock and thirty minutes in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Reverend Ed Jager of the First Baptist Church of Montpelier.

Joint Resolution Placed on Calendar

The Speaker placed before the House the following resolution which was read and in the Speaker's discretion, placed on the Calendar for action tomorrow under Rule 52.

J.R.H. 93

Joint resolution congratulating the Vermont Underground Storage Tank Program and the Vermont Petroleum Association on their receipt of an EPA Environmental Merit Award

Offered by: Representative Quaid of Williston

Whereas, the flow of gasoline and other fuels into the ground from leaking petroleum underground storage tanks can pose a severe environmental threat to the underground water supply, and

Whereas, to combat and alleviate these hazards, strict state and federal criteria have been adopted for the removal of outdated tanks and for their replacement with new tanks that meet very stringent health and safety standards, and

Whereas, the Vermont Underground Storage Tank Program, with the collaboration of the Petroleum Cleanup Fund Advisory Committee, the private Vermont Petroleum Association and the private sector have worked cooperatively in arranging for the removal and replacement of underground petroleum storage tanks, and

Whereas, due to the diligent work of these public and private sector organizations, all commercial underground petroleum storage tank systems were in compliance with all state and federal standards as of December 22, 1998, and

Whereas, in recognition of this very successful environmental partnership between private industry and a state regulatory authority, the U.S. Environmental Protection Agency has presented to the Underground Storage Tank Program and the Vermont Petroleum Association an Environmental Merit Award that will be presented to the recipients at Earth Day ceremonies at Fanueil Hall in Boston on April 22, 1999, and

Whereas, due to this special cooperative effort, Vermont is a national leader in complying with the federal underground storage tank requirements, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly congratulates the staff of the Underground Storage Tank Program, the Petroleum Cleanup Fund Advisory Committee and the Vermont Petroleum Association for their outstanding collaboration in bringing Vermont's underground storage tanks into compliance with state and federal health and safety standards, and be it further

Resolved: That the Secretary of State be directed to send a copy of this resolution to the staff of the Underground Storage Tank Program, to the Petroleum Cleanup Fund Advisory Committee and to the Vermont Petroleum Association.

Third Reading; Bill Passed

H. 290

House bill, entitled

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

Was taken up, read the third time and passed.

Bill Amended, Read Third Time and Passed

H. 302

House bill, entitled

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

Was taken up and pending third reading of the bill, Rep. Bourdeau of Hyde Park moved to amend the bill as follows:

On page 1, following line 13, by inserting the following:

When serving apple pie in Vermont, a "good faith" effort shall be made to meet one or more of the following conditions:

(a) with a glass of cold milk

(b) with a slice of cheddar cheese weighing a minimum of 1/2 ounce (c) with a large scoop of vanilla ice cream.

Which was agreed to. Thereupon, the bill was read the third time and passed.

Bill Amended, Read Third Time and Passed

H. 549

House bill, entitled

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

Was taken up and pending third reading of the bill, Rep. Hube of Londonderry moved to amend the bill as follows:

By adding a new Sec. 8a to the bill to read as follows:

Sec. 8a. 24 V.S.A. § 5051(10)(D) is amended to read:

(D) The retirement board shall determine any question as to whether a person is an employee as defined in this chapter. Employee does not include persons eligible for inclusion under the provisions of the state teachers' retirement system as provided in Chapter 55 of Title 16 other than beneficiaries of that system.

Which was agreed to.

Pending third reading of the bill, Rep. Atkins of Winooski, moved to amend the bill as follows:

by adding a new Sec. 5a to read:

Sec. 5a. STUDY; MAKING BENEFIT ENHANCEMENT AVAILABLE TO RETIREES

The House Committee on Government Operations, in consultation with appropriate standing committees, or any retirement study committee authorized by the 1999 General Assembly shall study the policies involved in and the costs associated with making benefits enhancements available to beneficiaries of the state employees' and the state teachers' retirement systems. The committee's findings and recommendations shall be filed with the General Assembly on or before January 15, 2000.

Which was agreed to.

Thereupon, the bill was read the third time and passed.

Third Reading; Bills Passed

House bills of the following titles were severally taken up, read the third time and passed:

H. 555

An act relating to city of Barre charter;

H. 558

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

Bills Messaged to Senate Forthwith

On motion of Rep. Freed of Dorset, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

H. 290

House bill, entitled

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

H. 302

House bill, entitled

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

H. 549

House bill, entitled

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

H. 555

House bill, entitled

An act relating to city of Barre charter.

H. 558

House bill, entitled

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

Bill Recommitted

H. 43

House bill, entitled

An act relating to driver licenses;

Was taken up, and pending reading of the committee reports, Rep. Moore of Rutland City moved to recommit the bill to Transportation, which was agreed to.

Bill Amended; Third Reading Ordered

H. 188

Rep. Flaherty of South Burlington, for the committee on Transportation, to which had been referred House bill, entitled

An act relating to diesel fuel tax;

Reported in favor of its passage when amended as follows:

First: In Sec. 2, page 4, lines 8 and 9 by striking the strikethrough

Second: In Sec. 3, page 5, lines 8 and 19 by striking the number "26,000" and inserting in lieu thereof the number "26,001"

Third: In Sec. 4, page 8, line 7 by striking the number "26,000" and inserting in lieu thereof the number "26,001"

Fourth: In Sec. 5, page 11, line 12 by striking the number "26,000" and inserting in lieu thereof the number "26,001"

Fifth: In Sec. 8, page 15, line 12 by striking the number "26,000" and inserting in lieu thereof the number "26,001" and on line 15 by striking the word "three" and inserting in lieu thereof the word "four"

Rep. Perry of Richford, for the Committee on Ways and Means, recommends the bill ought to pass when amended as recommended by the Committee on Transportation.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time, report of the committees on Transportation and Ways and Means agreed to and third reading ordered.

Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

and Messaged to Senate Forthwith

H. 169

The Senate proposes to the House to amend House bill, entitled

An act relating to farm employee housing;

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. PURPOSE

This act creates a more expeditious process for a farm employer to remove a former farm employee from farm housing provided as a benefit of employment when the farm employer can prove that he or she has suffered actual hardship because of the unavailability of the farm housing for a replacement employee.

Sec. 2. 9 V.S.A. § 4469 is added to read:

§ 4469. TERMINATION OF OCCUPANCY OF FARM EMPLOYEE HOUSING

(a) For the purposes of this section:

(1) "Farm employer" means an individual who earns at least one-half of his or her annual gross income from the business of farming as that term is defined in Section 1.175-3 of the regulations issued by the United States Department of the Treasury under the Internal Revenue Code of the United States, as amended.

(2) "Farm employee" means an individual employed by a farm employer in farming operations.

(3) "Housing provided as a benefit of farm employment" means housing owned or controlled by the farm employer, whether located on or off the farm premises, and provided for the occupancy of the farm employee and his or her family or household members for no consideration other than the farm employee's labor. Payment of utility and fuel charges paid by the farm employee does not affect the designation of housing provided as a benefit of farm employment.

(b) Unless otherwise provided in a written employment contract, a farm employer who provides housing to a farm employee and his or her family or household members as a benefit of the employment may terminate that benefit and all rights of the employee and the employee's family or household members to occupy the housing when the employee's employment is terminated.

(c) The termination of the housing benefit shall be by written notice served upon the former farm employee by a law enforcement officer in accordance with Rule 4 of the Vermont Rules of Civil Procedure. The notice shall be served together with a summons and complaint seeking a writ of possession under this section to remove the former farm employee from occupancy of the farm housing. The notice shall include the following statements, in boldface print:

(1) YOUR EMPLOYMENT AND HOUSING BENEFIT HAVE BEEN TERMINATED.

(2) YOUR EMPLOYER HAS FILED A LEGAL PROCEEDING IN__________ COUNTY SUPERIOR COURT TO OBTAIN A COURT ORDER DIRECTING YOU AND ANY FAMILY OR HOUSEHOLD MEMBER COHABITATING IN THE DWELLING TO VACATE AND LEAVE THE DWELLING AND REMOVE ALL OF YOUR POSSESSIONS. THE ADDRESS AND TELEPHONE NUMBER OF THE COURT ARE AS FOLLOWS:

(3) THE COURT WILL HOLD A HEARING ON YOUR FORMER EMPLOYER'S REQUEST FOR A COURT ORDER DIRECTING YOU TO LEAVE AND VACATE THE DWELLING. THE HEARING WILL BE HELD ON __________________ at ____________ in the ________AM/PM AT THE COURTHOUSE AT THE ADDRESS LISTED ABOVE. YOU HAVE THE RIGHT TO BE SERVED WITH NOTICE OF THE HEARING AT LEAST TEN DAYS PRIOR TO THE HEARING DATE. YOU HAVE THE RIGHT TO APPEAR AT THIS HEARING. AT THE HEARING, YOUR FORMER EMPLOYER MUST PROVE THAT THE DWELLING IS NEEDED FOR HOUSING A REPLACEMENT EMPLOYEE AND THAT YOUR FAILURE TO VACATE IS CAUSING ACTUAL HARDSHIP.

(4) IF YOU BELIEVE THAT YOUR EMPLOYMENT WAS TERMINATED WRONGFULLY, THAT YOUR DWELLING HOUSE WAS NOT HABITABLE OR IF YOU HAVE ANY OTHER CLAIM AGAINST YOUR FORMER EMPLOYER, YOU MAY FILE A COUNTERCLAIM AGAINST YOUR FORMER EMPLOYER AS EXPLAINED IN THE SUMMONS AND COMPLAINT THAT ARE BEING SERVED UPON YOU WITH THIS NOTICE.

(5) YOU MAY WISH TO SEEK LEGAL ADVICE FROM A LICENSED ATTORNEY. IF YOU BELIEVE YOU CANNOT AFFORD AN ATTORNEY, YOU MAY CONTACT THE CLERK OF THE COURT LISTED ABOVE FOR INFORMATION ABOUT THE AVAILABILITY OF AN ATTORNEY AT PUBLIC EXPENSE, ALTHOUGH YOU MAY NOT BE ENTITLED TO AN ATTORNEY AT PUBLIC EXPENSE.

(d) A farm employer shall be entitled to a show cause hearing on an expedited basis for the purpose of demonstrating that the failure of the former farm employee to vacate the farm housing is causing an actual hardship to the farm employer. The show cause hearing shall be held not less than 10 calendar days after service on the former employee of the notice described in subsection (c) of this section. The issues before the court at the hearing shall be whether the farm employer has suffered actual hardship because of the unavailability of the farm housing for a replacement employee and whether the farm employee can demonstrate that there is a genuine issue of material fact concerning whether he or she has a meritorious defense to the action for possession.

(e) If the court finds that the farm employer has suffered actual hardship because of the unavailability of the farm housing for a replacement employee, and that there is no genuine issue of material fact concerning the existence of a meritorious defense to the action for possession, the court shall enter an order approving a writ of possession which shall be executed no sooner than five days nor later than 30 days after the writ is served, to put the plaintiff into possession.

(f) In the event that the court does not make a finding on behalf of the farm employer, the court may set the matter for a further hearing on the issue of actual hardship. Any time after an initial hearing where the court does not make a finding on behalf of the farm employer, the farm employer may seek an eviction pursuant to sections 4467 and 4468 of this chapter and subchapter 3 of chapter 169 of Title 12. In any action pursuant to this section, the farm employer may file a motion for payment of the reasonable rental value of the premises into court pursuant to 12 V.S.A. § 4853a

(g) The right of a former farm employee to pursue any claim that he or she may have against the former farm employer by way of a counterclaim in a civil action brought pursuant to this section is expressly preserved. A former employee who prevails on a counterclaim shall be entitled to relief as provided by applicable law.

(h) Sections 4455, 4461 and 4467 of this chapter shall not apply to housing provided to a farm employee as a benefit of the employment.

Sec. 3. CONSTRUCTION

This act shall control in the event of any inconsistencies or conflicts with the provisions of Title 9 or Title 12.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Little of Shelburne moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Edwards of Swanton

Rep. Howrigan of Fairfield

Rep. Little of Shelburne

On motion of Rep. Tracy of Burlington, the rules were suspended and the bill was ordered messaged to the Senate forthwith.

Adjournment

At ten o'clock and twenty-five minutes in the forenoon, on motion of Rep. Fyfe of Newport City, the House adjourned until tomorrow at nine o'clock and thirty minutes in the forenoon.