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Senate Calendar

tuesday, february 28, 2006

57th DAY OF ADJOURNED SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

UNFINISHED BUSINESS OF FRIDAY, FEBRUARY 24, 2006

Second Reading

Favorable with Recommendation of Amendment

S. 228     Relating to price gouging for petroleum products................................ 403

                  Ec. Dev., Housing & General Affairs Committee Report................. 403

                  Finance Committee Report............................................................ 407

NEW BUSINESS

Second Reading

Favorable with Recommendation of Amendment

S. 194     Sealing juvenile records relating to a delinquent act............................ 411

                  Judiciary Committee Report........................................................... 411

S. 218     Motor vehicle retail installment sales contracts................................... 418

                  Finance Committee Report............................................................ 418

Favorable with Proposal of Amendment

H. 544    Relating to the process for locating and altering municipal lines........... 419

                  Government Operations Committee Report.................................... 419

Senate Concurrent Resolution for Action

SCR 53  Recognizing Robert E. Miller for his contributions to Vermont............ 419

NOTICE CALENDAR

Favorable

H. 665    Permitting tastings of alcoholic beverages at Vermont events.............. 419

                  Ec. Dev., Housing & General Affairs Committee Report................. 419

                  Finance Committee Report............................................................ 419

Favorable with Recommendation of Amendment

S. 51       Relating to disability retirement benefits for state employees............... 420

                  Government Operations Committee Report.................................... 420

                  Appropriations Committee Report................................................. 422


S. 58       Relating to direct shipping of wine and beer....................................... 422

                  Ec. Dev., Housing and General Affairs Committee Report.............. 422

                  Finance Committee Report............................................................ 423

S. 188     Financial literacy & asset building of low income Vermonters............. 426

                  Health and Welfare Committee Report........................................... 426

S. 240     Continuing and expanding Vermont’s school choice options............... 427

                  Education Committee Report......................................................... 427

S. 262     Employer access to applicants’ criminal history records..................... 427                              Judiciary Committee Report     427

Favorable with Proposal of Amendment

H. 579    Relating to Vermont service medals................................................... 436

                  Government Operations Committee Report.................................... 436

ORDERED TO LIE

S. 112     Relating to the practice of optometry................................................. 439

S. 157     Relating to rulemaking for Vermont origin.......................................... 439



 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF FRIDAY, FEBRUARY 24, 2006

Second Reading

Favorable with Recommendation of Amendment

S. 228

An act relating to price gouging for petroleum products.

Reported favorably with recommendation of amendment by Senator Mullin for the Committee on Economic Development, Housing, and General Affairs.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  9 V.S.A. §§ 2461d, 2461e, and 2461f are added to read:

§ 2461d.  PRICE GOUGING OF PETROLEUM PRODUCTS AND HEATING FUEL PRODUCTS

(a)  (Purpose) The purpose of this section is to ensure that those entities involved in the sale or transfer of designated petroleum products do not take advantage of a purchaser during a market disruption.

(b)  (Definitions)  For the purposes of this section:

(1)  A “market emergency” shall be declared by the governor.  The market emergency shall continue for 30 days or until terminated by the governor.  The governor may extend the market emergency for additional 30‑day periods.  “Market emergency” means any abnormal disruption of any market for petroleum products or heating fuel products, including any actual or threatened shortage in the supply of petroleum products or heating fuel products or any actual or threatened increase in the price of petroleum products or heating fuel products resulting from severe weather, convulsion of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, supply manipulation, act of war, terrorist attack, national or local emergency, or other extraordinary adverse circumstances. 

(2)  “Petroleum or heating fuel product” means motor fuels, liquefied petroleum gas, fuel oil, kerosene, and used for heating or cooking purposes.

(3)  “Petroleum or heating fuel-related business” means any producer, supplier, wholesaler, distributor, or retail seller of any petroleum or heating fuel product.

(c)  It is an unfair and deceptive act and practice in commerce and a violation of section 2453 of this title for any petroleum or heating-fuel related business during a market emergency to sell or offer to sell any petroleum product or heating-fuel product for an amount that represents an unconscionably high price.

(c)  A price is unconscionably high if:

(1)  the amount charged represents a gross disparity between the price of the petroleum product or heating-fuel product charged by the petroleum or heating-fuel related business and:

(A)  the price at which the same product was sold or offered for sale by that business in the usual course of business immediately prior to the date of the market emergency declaration; or

(B)  the price at which the same or similar petroleum product or heating-fuel product is readily obtainable by the buyer and other buyers in the trade area in which the petroleum or heating-fuel related business markets product; and

(2)  the disparity is not substantially attributable to increased prices charged by the petroleum product or heating-fuel product suppliers or increased costs due to a market emergency.

§ 2461e.  REQUIREMENTS FOR PRICE PROTECTION AND PREPAID CONTRACTS

(a)(1)  A contract for the retail sale of home heating oil, kerosene, or liquefied petroleum gas that offers a guaranteed price plan, including fixed price contracts and any other similar terms, shall be in writing, and the terms and conditions of such price plans shall be disclosed.  Such disclosure shall be in plain language and shall immediately follow the language concerning the price or service that could be affected and shall be printed in no less than 12‑point boldface type of uniform font.  A solicitation for the retail sale of home heating oil or liquefied petroleum gas that offers a guaranteed price plan that could become a contract upon a response from a consumer, including fixed price contracts and any other similar terms, shall be in writing, and the terms and conditions of such offer shall be disclosed in plain language.

(2)  Subdivision (1) of this subsection does not preclude a first-come, first-serve offering.

(b)(1)  No home heating oil, kerosene, or liquefied petroleum gas dealer shall enter into a prepaid contract to provide home heating oil, kerosene, or liquefied petroleum gas to a consumer unless that dealer has either:

(A)  (futures contract) within seven days of the acceptance of the contract obtained and maintained heating oil, kerosene, or liquefied petroleum gas contracts or other similar commitments that allow the dealer to purchase, at a fixed price, heating oil, kerosene, or liquefied petroleum gas in an amount not less than 75 percent of the maximum number of gallons that the dealer is committed to deliver pursuant to all prepaid contracts entered into by the dealer; or

(B)  (surety bond option) obtained and maintained a surety bond in an amount not less than 50 percent of the total amount of funds paid to the dealer by consumers pursuant to prepaid heating oil, kerosene, or liquefied petroleum gas contracts; or

(C)  (letter of credit) obtained and maintained a letter of credit in an amount not less than 100 percent of the total amount of funds paid to the dealer by consumers.

(2)  A dealer shall maintain the amount of futures contracts, the surety bond, or letter of credit required by this subsection for the period of time for which the prepaid home heating oil, kerosene, or liquefied petroleum gas contracts are effective, except that the amount of the futures contracts, surety bond, or letter of credit may be reduced during such period of time to reflect any amount of home heating oil, kerosene, or liquefied petroleum gas already delivered to and paid for by the consumer.

(c)(1)  (Disclosure) A prepaid home heating oil, kerosene, or liquefied petroleum gas contract shall indicate: 

(A)  the amount of funds paid by the consumer to the dealer under the contract;

(B)  the maximum number of gallons of home heating oil, kerosene, or liquefied petroleum gas committed by the dealer for delivery to the consumer pursuant to the contract; and

(C)  that the performance of the prepaid contract is secured by one of the three options described in subsection (b) of this section. 

(2)  (Reimbursement default provision) Any contract described in this subsection shall provide that the contract price of any undelivered home heating oil, kerosene, or liquefied petroleum gas owed to the consumer under the contract at the end date of the contract shall be reimbursed to the consumer not later than 30 days after the end date of the contract, unless the parties to the contract agree otherwise.

(d)  (Private right of action under consumer fraud act) In addition to the remedies set forth in sections 2458 and 2461 of this title, a home heating oil, kerosene, or liquefied petroleum gas dealer may bring an action against its heating oil, kerosene, or liquefied petroleum gas supplier for failing to honor its contract with the home heating oil, kerosene, or liquefied petroleum gas dealer.  The home heating oil, kerosene, or liquefied petroleum gas dealer bringing the action may recover all remedies available to consumers under subsection 2461(b) of this title.

§ 2461f.  NOTICE OF ACQUISITION OF GASOLINE, HEATING OIL, AND LIQUIFIED PETROLEUM GAS ASSETS

(a)  (Purpose)  The purpose of this section is to provide the attorney general's office with notice of proposed acquisitions or transfers that result in market concentration sufficient to be an unfair method of competition.

(b)  (Definitions)  As used in this section, unless the context otherwise indicates, the following terms have the following meanings.

(1)  “Gasoline sales” means the retail sale of internal combustion fuel for motor vehicles.

(2)  “Heating oil sales” means the retail sale of #2 fuel oil used for heating residential, industrial, or commercial space or water.

(3)  “Liquefied petroleum gas sales” means the retail sale of liquefied petroleum gas.

(c)  (Prohibition)  A person may not acquire, directly or indirectly, from a business engaged in gasoline sales, heating oil, or liquefied petroleum gas sales in this state, without prior notice as required under subsection (c) of this section:

(1)  controlling stock; or

(2)  substantial assets that include those used in gasoline sales, heating oil sales, or liquefied petroleum gas sales.

(d)  (Report)  The person acquiring stock or assets under subsection (b) of this section shall provide notice of this acquisition to the attorney general’s office at least 7 days prior to the date of acquisition.  The period may be shortened with the consent of the attorney general.

(e)  (Confidentiality)  Information received by the attorney general’s office as a result of this reporting requirement is confidential.

(f)  (Penalty)  Violation of this section is a civil violation for which a civil penalty not to exceed $10,000.00 may be assessed.

and that upon passage the title be amended to read "AN ACT RELATING TO PRICE GOUGING OF PETROLEUM PRODUCTS AND HEATING FUEL PRODUCTS, REQUIREMENTS FOR PRE-BUY CONTRACTS, AND NOTICE OF ACQUISITION"

(Committee vote: 6-0-0)

Reported favorably with recommendation of amendment by Senator Cummings for the Committee on Finance.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  PURPOSE

The purpose of 9 V.S.A. § 2461d of this act is to ensure that those entities involved in the sale or transfer of designated petroleum products do not take advantage of a purchaser during a market emergency.

Sec. 2.  9 V.S.A. §§ 2461d, 2461e, and 2461f are added to read:

§ 2461d.  PRICE GOUGING OF PETROLEUM PRODUCTS AND HEATING FUEL PRODUCTS

(a)  Definitions.  For the purposes of this section:

(1)  A “market emergency” shall be declared by the governor.  The market emergency shall continue for 30 days or until terminated by the governor.  The governor may extend the market emergency for additional 30‑day periods.  “Market emergency” means any abnormal disruption of any market for petroleum products or heating fuel products, including any actual or threatened shortage in the supply of petroleum products or heating fuel products or any actual or threatened increase in the price of petroleum products or heating fuel products resulting from severe weather, convulsion of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, act of war, terrorist attack, national or local emergency, or other extraordinary adverse circumstances. 

(2)  “Petroleum or heating fuel product” means motor fuels, liquefied petroleum gas, fuel oil, kerosene, and wood pellets used for heating or cooking purposes.

(3)  “Petroleum or heating fuel-related business” means any producer, supplier, wholesaler, distributor, or retail seller of any petroleum or heating fuel product.

(b)  It is an unfair and deceptive act and practice in commerce and a violation of section 2453 of this title for any petroleum or heating fuel-related business during a market emergency to sell or offer to sell any petroleum product or heating fuel product for an amount that represents an unconscionably high price.

(c)  A price is unconscionably high if:

(1)  the amount charged represents a gross disparity between the price of the petroleum product or heating fuel product charged by the petroleum or heating fuel related business and:

(A)  the price at which the same product was sold or offered for sale by that business in the usual course of business immediately prior to the date of the declaration of the market emergency; or

(B)  the price at which the same or similar petroleum product or heating fuel product is readily obtainable by the buyer and other buyers in the trade area in which the petroleum- or heating-fuel‑related business markets the product; and

(2)  the disparity is not substantially attributable to increased prices charged by the petroleum product or heating fuel product suppliers or increased costs due to a market emergency.

(d)  It shall be a rebuttable presumption that a price is unconscionably high if:

(1)  The difference between the amount charged for the petroleum product or heating fuel product and the cost at which the product was obtained by the seller during the shorter of 15 days or the length of the market emergency is more than 25 percent greater than the difference between the amount charged for the petroleum product or heating fuel product and the cost at which the product was obtained by the seller immediately prior to the market emergency; or

(2)  The difference between the amount charged for the petroleum product or heating fuel product during the shorter of 15 days or the length of the market emergency and the amount charged for the petroleum product or heating fuel product immediately prior to the market emergency is more than 25 percent.

(e)  In addition to the remedies set forth in sections 2458 and 2461 of this title, a petroleum or heating fuel-related business may bring an action for a violation of this section against its petroleum or heating fuel product suppliers.  The petroleum or heating fuel-related business bringing the action may recover all remedies available to consumers under subsection 2461(b) of this title.

§ 2461e.  REQUIREMENTS FOR PRICE PROTECTION AND PREPAID CONTRACTS

(a)(1)  A contract for the retail sale of home heating oil, kerosene, or liquefied petroleum gas that offers a guaranteed price plan, including fixed price contracts and any other similar terms, shall be in writing, and the terms and conditions of such price plans shall be disclosed.  Such disclosure shall be in plain language and shall immediately follow the language concerning the price or service that could be affected and shall be printed in no less than 12‑point boldface type of uniform font.  A solicitation for the retail sale of home heating oil or liquefied petroleum gas that offers a guaranteed price plan that could become a contract upon a response from a consumer, including fixed price contracts and any other similar terms, shall be in writing, and the terms and conditions of such offer shall be disclosed in plain language.

(2)  Subdivision (1) of this subsection does not preclude a first come, first served offering.

(b)(1)  No home heating oil, kerosene, or liquefied petroleum gas dealer shall enter into a prepaid contract to provide home heating oil, kerosene, or liquefied petroleum gas to a consumer unless that dealer has any one of the following:

(A)  within seven days of the acceptance of the contract obtained and maintained heating oil, kerosene, or liquefied petroleum gas contracts or other similar commitments that allow the dealer to purchase, at a fixed price, heating oil, kerosene, or liquefied petroleum gas in an amount not less than 75 percent of the maximum number of gallons that the dealer is committed to deliver pursuant to all prepaid contracts entered into by the dealer;

(B)  within seven days of the acceptance of the contract obtained and maintained a surety bond in an amount not less than 50 percent of the total amount of funds paid to the dealer by consumers pursuant to prepaid heating oil, kerosene, or liquefied petroleum gas contracts; or

(C)  within seven days of the acceptance of the contract obtained and maintained a letter of credit in an amount not less than 100 percent of the total amount of funds paid to the dealer by consumers.

(2)  A dealer shall maintain the amount of futures contracts, the amount of the surety bond, or the letter of credit required by this subsection for the period of time for which the prepaid home heating oil, kerosene, or liquefied petroleum gas contracts are effective, except that the amount of the futures contracts, surety bond, or letter of credit may be reduced during such period of time to reflect any amount of home heating oil, kerosene, or liquefied petroleum gas already delivered to and paid for by the consumer.

(3)  Subdivision (b)(1) of this section shall not apply to budget plans under which consumers pay 1/12th of their yearly heating fuel cost each month.

(c)(1)  A prepaid home heating oil, kerosene, or liquefied petroleum gas contract shall indicate: 

(A)  the amount of funds paid by the consumer to the dealer under the contract;

(B)  the maximum number of gallons of home heating oil, kerosene, or liquefied petroleum gas committed by the dealer for delivery to the consumer pursuant to the contract; and

(C)  that the performance of the prepaid contract is secured by one of the three options described in subsection (b) of this section. 

(2)  Any contract described in this subsection shall provide that the contract price of any undelivered home heating oil, kerosene, or liquefied petroleum gas owed to the consumer under the contract at the end date of the contract shall be reimbursed to the consumer not later than 30 days after the end date of the contract, unless the parties to the contract agree otherwise.

(d)  In addition to the remedies set forth in sections 2458 and 2461 of this title, a home heating oil, kerosene, or liquefied petroleum gas dealer may bring an action against its heating oil, kerosene, or liquefied petroleum gas suppliers for failing to honor its contract with the home heating oil, kerosene, or liquefied petroleum gas dealer.  The home heating oil, kerosene, or liquefied petroleum gas dealer bringing the action may recover all remedies available to consumers under subsection 2461(b) of this title.

§ 2461f.  NOTICE OF ACQUISITION OF GASOLINE, HEATING OIL, AND LIQUEFIED PETROLEUM GAS ASSETS

(a)  Definitions.  As used in this section, unless the context otherwise indicates, the following terms have the following meanings.

(1)  “Gasoline sales” means the retail sale of internal combustion fuel for motor vehicles.

(2)  “Heating oil sales” means the retail sale of #2 fuel oil used for heating residential, industrial, or commercial space or water.

(3)  “Liquefied petroleum gas sales” means the retail sale of liquefied petroleum gas.

(b)(1)  Prohibition.  A person may not acquire, directly or indirectly, from a business engaged in gasoline sales, heating oil sales, or liquefied petroleum gas sales in this state, without prior notice as required under subsection (c) of this section:

(A)  Controlling stock; or

(B)  Substantial assets that include those used in gasoline sales, heating oil sales, or liquefied petroleum gas sales.

(2)  Exemption.  Subdivision (b)(1) and subsection (c) shall not apply to acquisitions of substantial assets or controlling stock of a business that would come within subdivision (b)(1) solely because the business is engaged in retail gasoline sales to consumers at a fixed location, unless the acquirer owns retail gasoline assets within 10 miles of the business whose assets or controlling stock is being acquired.

(c)  Report.  The person acquiring stock or assets under subsection (b) of this section shall provide notice of this acquisition to the attorney general’s office at least 30 days prior to the date of acquisition.  That period may be shortened with the consent of the attorney general.

(d)  Confidentiality.  Information received by the attorney general’s office as a result of this reporting requirement is confidential.

(e)  Penalty.  Violation of this section is a civil violation for which a civil penalty not to exceed $10,000.00 may be assessed.

(Committee vote: 5-1-1)

NEW BUSINESS

Second Reading

Favorable with Recommendation of Amendment

S. 194

An act relating to sealing juvenile records relating to a delinquent act.

Reported favorably with recommendation of amendment by Senator Sears for the Committee on Judiciary.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  As stated in 33 V.S.A. § 5501, one of the primary purposes of Vermont’s current approach to the juvenile system of justice is “to remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior and to provide a program of treatment, training, and rehabilitation consistent with the protection of the public interest.”  This policy recognizes that children are not simply small adults and that they should be given special consideration by the courts due to their youth, immaturity, and amenability to rehabilitation.

(2)  Currently, applications for sealing are filed in less than five percent of delinquency adjudications.  The general assembly believes this is because children or adults who have a past adjudication of delinquency are often under the false impression that such records are completely sealed under our current system. 

(3)  This act establishes a system that favors the sealing of juvenile records if, after a period of time, the juvenile does not commit a serious crime or offense, while allowing a judge the discretion to deny the sealing if he or she believes the juvenile has not been rehabilitated.  The act shifts the burden from the child to the state to prove that the child’s records should not be used against the child in the future.  If the state presents strong evidence that the child has not been rehabilitated, the general assembly is confident that the court will wisely order that the record not be sealed.

Sec. 2.  33 V.S.A. § 5538 is amended to read:

§ 5538.  SEALING OF RECORDS

(a)  On application of a child who has been adjudicated delinquent or in need of care or supervision, or on the court’s own motion, and after notice to all parties of record and hearing  In matters relating to a child who has been adjudicated delinquent on or after July 1, 2004, the court shall order the sealing of all files and records of the court applicable to the proceeding if it two years have elapsed since the final discharge of the person unless, on motion, the court finds;:

(1)  Two years have elapsed since the final discharge of the person,

(2)  He the person has not been convicted of a felony or misdemeanor involving moral turpitude listed crime or adjudicated delinquent or in need of care or supervision of such an offense after such initial adjudication and prior to the hearing and no, or a proceeding is pending seeking such conviction or adjudication, and; or

(3)(2)  His rehabilitation of the person has not been attained to the satisfaction of the court. 

(b)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 2004, on application of the child or on the court’s own motion, and after notice to all parties of record and hearing, the court shall order the sealing of all files and records of the court applicable to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(c)  On application of a person who, while a child, was found to be in need of care or supervision, or on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records of the court applicable to the proceeding if it finds:

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(d)  The application or motion and the order may Orders issued in accordance with this section shall include the files and records specified in sections 5536 and 5537 of this title.

(b)  Notice of a hearing held under this section shall in any event be given to:

(1)  The state’s attorney having jurisdiction,

(2)  If the final discharge was from an institution or from parole, the authority granting the discharge, and

(3)  If the files and records specified in sections 5536 and 5537 of this title are included in the application or motion, the law enforcement officers or department having custody of the files and records.

(c)(e)  Upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.  Copies of the order shall be sent to each agency or official named therein.

(d)(f)(1)  Inspection of the files and records included in the order may thereafter be permitted by the court only either upon petition by the person who is the subject of such records, and only to those persons named therein, or upon petition of the commissioner for children and families for good cause shown.  Good cause shown shall be limited to:

(A)  circumstances in which the department for children and families requires access to such files and records to prepare a defense to a legal action filed against the department in relation to incidents or persons that are the subject of such files and records; or                            

(B)  extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.

(2)  The order unsealing a record must state whether the record is unsealed entirely or in part.  If the court's order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(e)(g)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, the files and records may be sealed after proceedings in conformity with and subject to the limitations of subsections (a), (b), (c) and (d) of this section after notice to all parties of record and hearing, the court shall order the sealing of all files and records of the court applicable to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication, and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(h)  The court shall provide assistance to persons who seek to file an application for sealing under this section.

Sec. 3.  3 V.S.A. § 163(e) is amended to read:

§ 163.  JUVENILE COURT DIVERSION PROJECT

* * *

(e)  Within 30 days of the two-year anniversary of a successful completion of juvenile diversion, the court shall provide notice to all parties of record of the court’s intention to order the sealing of all court files and records, law enforcement records other than entries in the juvenile court diversion project’s centralized filing system, fingerprints, and photographs applicable to a juvenile court diversion proceeding.  The court shall give the state’s attorney an opportunity for a hearing to contest the sealing of records.  The court shall seal the records if it unless, upon motion, the court finds:

(1)  two years have elapsed since the successful completion of the juvenile court diversion program by the participant and the dismissal of the case by the state’s attorney;

(2)  the participant has not been convicted of a subsequent felony or misdemeanor during the two-year period, and no or proceedings are pending seeking such conviction; and or

(3)(2)  rehabilitation of the participant has not been attained to the satisfaction of the court.

Sec. 4.  33 V.S.A. § 5514 is amended to read:

§ 5514. DETENTION; TEMPORARY CARE PENDING HEARING

(a)  A child taken into custody under section 5510 of this title and not immediately released to his the child’s parents, guardian or custodian, or delivered to a designated shelter, shall be by order of the court provided temporary shelter care or detention prior to a detention hearing on a petition held under this chapter or a hearing before a probate or other court upon a transfer thereto under section 5529(b) of this title in one or more of the following places:

(1)  The home of his the child’s parents, guardian, custodian, or other suitable person designated by the court, upon their undertaking to bring the child before the court at the detention hearing,

(2)  A licensed foster home or a home approved by the court,.

(3)  A facility operated by a licensed child caring agency,.

(4)  A detention home or center for delinquent children which is under the direction or supervision of or approved by the department of social and rehabilitation services, or

(5)  In the event that the child has been or will be or may be transferred under section subsection 5529(b) of this title, in any other suitable place designated by the court; or shall transfer legal custody of the child to the commissioner of social and rehabilitation services, if the court believes the child may be found delinquent, if the court believes the child may be found in need of care or supervision, pending such detention or other hearing.

(b)  If the court concludes that a child taken into custody under section 5510 of this title may be found delinquent or in need of care or supervision, the court may transfer legal custody of the child to the commissioner pending a detention hearing.  Unless ordered otherwise at or after the detention hearing, the commissioner shall have sole authority to place the child in a family home, a treatment, rehabilitative, detention, or educational institution or facility, subject to the provisions of section 5535 of this title.

(c)  If a parent, guardian or custodian fails, when requested to bring a child before the court as provided in subdivision (1) of subsection (a) of this section, the court may issue its warrant directing that the child be taken into custody and brought before the court.

(c) (d)  A child shall not be detained under this section in a jail or other facility intended or used for the detention of adults, unless the child is alleged to have committed a crime punishable by death or life imprisonment, and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(d) (e)  The official in charge of a jail or other facility intended or used for the detention of adult offenders or persons charged with crime shall inform the court immediately when a minor, who is or appears to be under the age of 18 years, is received at the facility other than pursuant to subsection (c) (d) of this section or section 5530 of this title, and shall deliver the minor to the court upon request of the court, or transfer the minor to the detention facility designated by the court by order.

Sec. 5.  33 V.S.A. § 5515(d) is amended to read:

(d)  If a petition with respect to the child has been filed with the court under section 5517 of this title during or prior to the detention hearing, and in the event the court finds, upon the detention hearing, that the continued detention of the child would be to his the child’s best interests and welfare or that public safety and protection reasonably require such detention, he it shall forthwith order the continued detention or custody of the child pending the full hearing held under section 5519 of this title.  Upon a finding at the detention hearing that no other suitable placement is available and the child presents a risk of injury to him or herself, to others or to property, the court may order that the child be placed in a secure facility used for the detention of delinquent children until the commissioner determines that a suitable placement is available for the child.  Alternatively, the court may order that the child be placed at a secure facility used for the detention of delinquent children for up to seven days.  Any order for placement at a secure facility shall expire at the end of the seventh day following its issuance unless, after hearing, the court extends the order for a time period not to exceed seven days. 

Sec. 6.  33 V.S.A. § 5515(f)(4) is amended to read:

(f)  At the conclusion of the detention hearing, the court shall make written findings on whether reasonable efforts were made to prevent unnecessary removal of the child from the home.  "Reasonable efforts" means the exercise of due diligence by the department for children and families to use appropriate and available services to prevent unnecessary removal of the child from the home.  When making the reasonable efforts determination, the court may find that no services were appropriate or reasonable considering the circumstances. If the court makes written findings that aggravated circumstances are present, the court may make, but shall not be required to make, written findings as to whether reasonable efforts were made to prevent removal of the child from the home.  Aggravated circumstances may include:

* * *

(4)  the parental rights of the parent with respect to a sibling have been terminated involuntarily.

Sec. 7.  STUDY

(a)  A committee shall be established for the purpose of studying and recommending legislative changes to chapter 55 of Title 33 relating to juvenile delinquency and children in need of care or supervision proceedings. 

(b)  The committee shall include:

(1)  the administrative judge or his or her designee;

(2)  the juvenile defender;

(3)  the executive director of the department of state’s attorneys and sheriffs or his or her designee;

(4)  the commissioner of the department for children and families or his or her designee;

(5)  the director of juvenile justice;

(6)  the attorney general or his or her designee;

(7)  an attorney specializing in representing children in juvenile proceedings appointed by the Vermont bar association; and

(8)  an attorney specializing in representing parents in juvenile proceedings appointed by the Vermont bar association.

(c)  The committee shall report its findings and recommendations to the house and senate committees on judiciary by January 15, 2007, whereafter the committee shall cease to exist.

Sec. 8.  EFFECTIVE DATE

Sec. 7 of this act shall take effect upon passage, and the remainder of the act shall take effect August 1, 2006.

(Committee vote: 5-0-1)

S. 218

An act relating to motor vehicle retail installment sales contracts.

Reported favorably with recommendation of amendment by Senator Cummings for the Committee on Finance.

The Committee recommends that the bill be amended by striking out Sec. 1 in its entirety and inserting a new Sec. 1 to read as follows:

Sec. 1.  9 V.S.A. § 2355(f)(1)(D) is amended and (F) is added to read:

(D)  The amount, if any, paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest, lien interest, or lease interest on the traded-in motor vehicle, the amount, if any, for insurance including the cost of credit life insurance at a rate authorized by rate schedules then in effect and on file with the commissioner of banking, insurance, securities, and health care administration, the cost, if any, of physical damage insurance specifying the type or types and the term of coverage, the cost, if any, for service contracts as defined in section 4247 of Title 8, and the reasonable cost, if any, for a debt protection agreement as set forth in section 10405 of Title 8;

* * *

(F)  A disclosure form completed by the automobile dealership containing at least the allowance for trade-in, amount owed on the trade-in or lease, cash price, amount financed on the motor vehicle retail installment contract, the amount financed on the motor vehicle retail installment contract as a percentage of the cash price of the vehicle and signature blocks for the buyer or buyers will be provided to all buyers who finance a motor vehicle utilizing a motor vehicle retail installment sales contract.  The disclosure form will be provided at the time the motor vehicle retail installment contract is signed by the buyer or buyers.  The disclosure will initially be on the form prescribed by the commissioner pending the adoption of the form by rule.

(Committee vote: 5-2-0)


Favorable with Proposal of Amendment

H. 544

An act relating to the process for locating and altering municipal lines.

Reported favorably with recommendation of proposal of amendment by Senator Condos for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 1, 24 V.S.A. § 1461(a), by striking out the third sentence in its entirety and inserting in lieu thereof a new sentence to read as follows: “Following the meetings, the legislative bodies shall conduct a, or ratify an existing, survey of the municipal line and file certified copies of the minutes of the meetings, the survey, and a list of property owners, the legal location of whose property is changed by the agreement with the secretary of state, the clerk of each of the municipalities, and the Vermont enhanced 911 board.

Second:  In Sec. 1, 24 V.S.A. § 1461(g), by striking out the word “subdivisions” and inserting in lieu thereof the word subsections

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for May 25, 2005, page 1376.)

Concurrent Resolution for Action

S.C.R. 53

Senate concurrent resolution recognizing Robert E. Miller for his contributions to Vermont.

(For text of Resolution, see Senate Calendar Addendum for February 23, 2006)

NOTICE CALENDAR

Favorable

H. 665

An act relating to promoting gourmet food and beverage products by permitting tastings of alcoholic beverages at Vermont food and wine events.

Reported favorably by Senator Mullin for the Committee on Economic Development, Housing and General Affairs.

(Committee vote: 6-0-0)

Reported favorably by Senator MacDonald for the Committee on Finance.

(Committee vote: 5-0-2)

(For House amendments, see House Journal for February 7, 2006, page 238)

Favorable with Recommendation of Amendment

S. 51

An act relating to disability retirement benefits for state employees.

Reported favorably with recommendation of amendment by Senator Kitchel for the Committee on Government Operations.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS; INTENT

(a)  The general assembly finds that:

(1)  The disability retirement system for state employees found in chapter 16 of Title 3 requires an injured employee to choose between disability retirement benefits and workers’ compensation benefits for temporary disability (pursuant to chapter 9 of Title 21).  Eligible employees, who wish to collect disability retirement benefits to provide a stream of income while they are unable to work and who want to continue their health care coverage are required to forfeit their right to appeal the denial of their workers’ compensation benefits.

(2)  The disability retirement system for state employees found in chapter 16 of Title 3 requires a catastrophically injured employee to choose between disability retirement benefits and permanent total workers’ compensation benefits beyond 330 weeks, up to lifetime (pursuant to chapter 9 of Title 21).  If a workers’ compensation claim is denied and the employee has to accept disability retirement to have an income while he or she appeals the workers’ compensation claim, the employee would be waiving significant future workers’ compensation benefits with no ability to choose the higher workers’ compensation benefit if the claim is ultimately determined to be compensable.

(b)  By this act, the general assembly intends to allow an eligible employee to accept disability retirement benefits during the pendency of the employee’s compensation appeal.  Upon resolution of the workers’ compensation claim, the employee would either continue in the disability retirement or resume his or her employee status and receive workers’ compensation benefits which the employee would have received if the claim had been accepted at the outset.  While an employee will still waive access to workers’ compensation benefits under Title 21 in excess of 330 weeks if the employee chooses to accept disability retirement benefits, this waiver applies only to the period after 330 weeks of permanent partial or permanent total disability benefits have been paid.  An employee may receive both disability retirement and permanent partial or permanent total benefits under the workers’ compensation system for up to 330 weeks. 

(c)  By this act the general assembly does not intend to enable the concurrent receipt of retirement disability benefits and temporary workers’ compensation disability benefits or permanent total benefits beyond 330 weeks.

Sec. 2.  3 V.S.A. § 466 is amended to read:

§ 466. OFFSETS Coordination of disability retirement benefits with workers' compensation BENEFITS

Acceptance of disability retirement benefits under this chapter shall act as a waiver of any additional claim under sections 642 or 646 of Title 21 or any additional claim for benefits in excess of 330 weeks under sections 644 and 645 of Title 21.

(a)  Disability pension and annuity retirement benefits payable under this chapter shall not commence until workers' compensation benefits have been exhausted under sections 642 or 646 of Title 21.

(b)  Notwithstanding subsection (a) of this section, disability retirement benefits payable under this chapter shall be paid to a member who applies for and meets all of the eligibility criteria for disability retirement under section 460 or 461 of this title, has filed a claim for temporary disability workers' compensation benefits under section 642 or 646 of Title 21, and for whom no such benefits have been or are being paid pursuant to any of these sections.  If the disability retiree receives temporary workers’ compensation benefits pursuant to sections 642 or 646 of Title 21, disability retirement pension and annuity benefit payments shall cease immediately and the retiree shall be immediately restored to his or her employment position and status as existed immediately preceding separation from service as an employee, including restoration of all benefits that existed at that time.  Acceptance of disability retirement benefits prior to being restored to state service shall not act as a waiver under subsection (d) of this section.

(c)  No employee shall concurrently receive both disability retirement benefits payable under this chapter and workers' compensation benefits payable under sections 642 or 646 of Title 21.  If an employee receives disability retirement pension and annuity benefits and later receives an award for temporary disability workers’ compensation benefits for the same period, the Vermont state retirement system shall have a lien against any retroactive workers' compensation award under sections 642 or 646 of Title 21 for the same period that the employee received disability retirement benefits in the amount of the disability retirement pension and annuity benefits paid.  Any recovery under sections 642 or 646 of Title 21 against the employer or the employer’s workers' compensation insurance carrier shall, after deducting expenses of recovery, reimburse the Vermont state retirement system for disability retirement pension and annuity benefits for all retroactive periods of time included in the recovery.  The state treasurer shall notify the department of buildings and general services when a disability retirement application is approved for an employee who has filed a workers compensation claim.  The department of buildings and general services or its workers’ compensation insurance carrier, shall notify the state treasurer of commencement or termination of any workers’ compensation payments or awards to an employee who has been reported by the state treasurer as eligible to receive disability retirement benefit. 

(d)  An employee who chooses to accept disability retirement benefits payable under this chapter, except as otherwise described under this section and subsection (b) of this section, shall waive any claim for benefits in excess of 330 weeks under sections 644 and 645 of Title 21.  Under this subsection, an employee may receive benefits from both systems simultaneously for up to 330 weeks.  Prior to actual payment of disability retirement benefits, the disability retiree shall make an election of what benefit he or she wants to receive after 330 weeks by indicating on a form provided by the state treasurer at the time of application.  The form shall advise the disability retiree in conspicuous print that he or she may wish to consult with legal counsel prior to making the election.

(Committee vote: 5-0-1)

Reported without recommendation by Senator Kitchel for the Committee on Appropriations.

(Committee Vote: 6-0-1

S. 58

An act relating to direct shipping of wine and beer.

Reported favorably with recommendation of amendment by Senator Dunne for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  CONSUMER IMPORTATION OF BEER AND WINE; DEPARTMENT OF LIQUOR CONTROL; STUDY

(a)  The Commissioner of Liquor Control shall conduct a study and issue a report regarding the advisability and implementation of direct shipping of wine and beer to Vermont consumers from out-of-state producers.  The commissioner shall hold at least three public forums in order to solicit comments from the public and interested parties and shall consider any written comments submitted.  The commissioner shall include both of the following in the study:

(1)  The impact of direct importation of wine and beer on restricting underage access to alcohol, collecting taxes on imports, enforcement, and any other related issues and recommendations as to how to solve those problems if direct importation is implemented.

(2)  Recommendations for a direct importation system that would be in  compliance with Vermont’s liquor control laws and would assure reasonable oversight and enforcement.

(b)  The commissioner shall file the written report with the House Committee on General, Housing and Military Affairs and with the Senate Committee on Finance on or before January 15, 2006.

(Committee vote: 5-0-1)

Reported favorably with recommendation of amendment by Senator Ayer for the Committee on Finance.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  PURPOSE

The purpose of this act is to make statutory changes in the Vermont shipping laws to equalize all the shipping laws so that Vermont will be in compliance with the federal constitutional requirements regarding direct shipping of alcoholic beverages as laid out in Granholm v. Heald.

Sec. 2.  7 V.S.A. § 67 is added to read:

§ 67.  VINOUS BEVERAGE SHIPPING LICENSE; IN-STATE; OUT-OF-STATE; PROHIBITIONS; PENALTIES

(a)  A manufacturer or producer of vinous beverages licensed in Vermont may be granted an in-state shipping license by filing with the department of liquor control an application in a form determined by the department accompanied by an application fee of $300.00 and a copy of the applicant’s current Vermont manufacturer’s license.  This shipping license may be renewed annually by filing a renewal fee of $300.00 accompanied by a copy of the licensee’s current Vermont manufacturer’s license.

(b)  A manufacturer or producer of vinous beverages licensed in another state that operates a winery in the United States and holds valid state and federal permits and licenses may be granted an out-of-state shipping license by filing with the department of liquor control an application in a form determined by the department accompanied by a $300.00 application fee and copies of the applicant’s current out-of-state manufacturer’s license.  This shipping license may be renewed annually by filing a renewal fee of $300.00 accompanied by the licensee’s current out-of-state manufacturer’s license.  As used in this section, “out-of-state” means any state other than Vermont, any territory, or possession of the United States, but does not include a foreign country.

(c)  A holder of any license issued under this section shall:

(1)  Ship vinous beverages produced by the licensee to private residences to be used only for personal use and not for resale.

(2)  Ship no more than 24 cases of vinous beverages produced by the license holder to any one Vermont resident in any calendar year.

(3)  Ensure that all containers of alcoholic beverages shipped under this section are clearly labeled:  “CONTAINS ALCOHOL; SIGNATURE OF INDIVIDUAL AGE 21 OR OLDER REQUIRED FOR DELIVERY.”

(4)  Ensure that delivery is made by common carrier only and require that the common carrier:

(A)  Deliver vinous beverages pursuant to an invoice that includes the name of the licensee and the name and address of the purchaser.

(B)  Require valid form of photographic identification from a recipient who appears to be under the age of 30, on delivery.

(C)  Require the recipient to sign an electronic or paper form or other acknowledgement of receipt as approved by the department of liquor control.

(5)  Retain a copy of each record of sale for a minimum of five years from the date of shipping.

(6)  Report at least twice a year to the department of liquor control in a manner and form determined by the department all the following information:

(A)  The total amount of vinous beverages shipped into or within the state for the preceding six months.

(B)  The names and addresses of the purchasers to whom the vinous beverages were shipped.

(C)  The date purchased, the name of the common carrier used to make each delivery; and the quantity and value of each shipment.

(7)  Pay directly to the commissioner of taxes the amount of tax on the vinous beverages shipped under this section pursuant to chapter 233 of Title 32 and subsection 421(a) of this title.  Delivery in this state by the holder of a license issued under this section shall be deemed to constitute a sale in this state at the place of delivery and shall be subject to all excise and sales taxes levied by the state of Vermont.

(8)  Permit the state treasurer, the department of liquor control, and the department of taxes, separately or jointly, upon request to perform an audit of the records of the holder of a license issued under this section.

(9)  Be deemed to have consented to the jurisdiction of the department of liquor control or any other state agency and the Vermont state courts concerning enforcement of this or other related laws and regulations. 

(10)  Not have any financial interest either directly or indirectly in a Vermont wholesale dealer or retail dealer, including a first, second, or third class license.

(11)  Comply with all department of liquor control laws and regulations.

(d)  A common carrier shall not deliver vinous beverages until it has complied with the provisions of subsection 66(e) of this title and be certified by the department of liquor control.  No employee of a common carrier shall deliver vinous beverages until that employee completes the training required by subsection 239(c) of this title.  Common carriers shall only deliver vinous beverages in Vermont that have been shipped by the holder of a license issued under this section.

(e)  The department of liquor control and the department of taxes may adopt rules and forms necessary to implement this section.

(f)  Direct shipments of vinous beverages are prohibited if they are not specifically authorized and in compliance with this section.  Any person who knowingly makes, participates in, imports, or receives a direct shipment of vinous beverages from a person who is not licensed as required by this section may be fined no more than $1,000.00 or imprisoned no more than six months, or both, for the first offense and fined not more than $5,000.00 or imprisoned not more than three years, or both, for each subsequent offense.

(g)  A licensee under this section that ships vinous beverages to an individual under 21 years of age shall be fined not more than $5,000.00 or imprisoned no more than three years, or both, and shall have the license issued under this section revoked.

(h)  For any violation of this section, the board of liquor control may suspend or revoke a license issued under this section, among all other remedies available to the board.

Sec. 2.  7 V.S.A. § 63 is amended to read:

§ 63.  IMPORTATION OR TRANSPORTATION OF LIQUORS; PROHIBITIONS; PERSONAL IMPORT LIMIT; PENALTY

(a)  All spirituous liquors imported or transported into this state shall be imported or transported by and through the liquor control board.  A person, partnership, association, or corporation importing or transporting or causing to be imported or transported into this state any spirituous liquors shall be imprisoned not more than one year, or fined not more than $1,000.00, or both. However, it shall be lawful for a person to import or transport spirituous liquor into this state by first obtaining a permit from the liquor control board and a person may import or transport not more than eight quarts of spirituous liquors into this state in his or her own private vehicle or in his or her actual possession at the time of such importation without permit.

(b)  All Except as provided in section 67 of this title, all malt or vinous beverages, or both, imported or transported into this state shall be imported or transported by and through a wholesale dealer holding a wholesale dealer's license issued by the liquor control board.  A person, partnership, association or corporation importing or transporting or causing to be imported or transported into this state any malt or vinous beverages, or both, shall be imprisoned not more than one year or fined not more than $1,000.00, or both. Provided, however, that it shall be lawful for a person to import or transport malt or vinous beverages, or both, into this state by first obtaining a permit from the liquor control board and a person may import or transport not more than six gallons of malt or vinous beverages, or both, into this state in his or her own private vehicle or in his or her actual possession at the time of such importation without permit providing it is not for resale.

Sec. 3.  REPEAL

7 V.S.A. § 66 (shipping permit; vinous beverages; delivery requirements) is repealed.   

(Committee vote: 5-0-2)

S. 188

An act relating to the financial literacy and asset building of low income Vermonters.

Reported favorably with recommendation of amendment by Senator White for the Committee on Health and Welfare.

The Committee recommends that the bill be amended by striking out Secs. 2 and 3 in their entirety and inserting a new Sec. 2 to read:

Sec. 2.  33 V.S.A. § 1101(27) is amended to read:

(27)  "Work activities" means the following activities limited to the extent and degree that they are allowed and countable in accordance with

Part A of Title IV of the Social Security Act:

* * *

(L)  the provision, consistent with the department's rules applicable to self-employment, of child care services to an individual who is participating in a community service program; and

(M)  attendance at a financial literacy class; and

(M)(N)  any other work activity recognized in accordance with Part A of Title IV of the Social Security Act as amended.

(Committee vote: 4-0-3)

S. 240

An act relating to continuing and expanding Vermont’s school choice options.

Reported favorably with recommendation of amendment by Senator Collins for the Committee on Education.

The Committee recommends that the bill be amended in Sec. 1(d), after the second sentence, by inserting a new sentence to read:

The commissioner of education may allow a high school district to form a public high school transfer region with fewer than three other high school districts due to geographic constraints.

And that when so amended, the title of the bill shall be amended to read:  “AN ACT RELATING TO EXTENDING VERMONT’S SCHOOL TRANSFER OPTIONS”

(Committee vote:  5-0-0)

S. 262

An act relating to expanding employer access to applicants’ criminal history records.

Reported favorably with recommendation of amendment by Senator Cummings for the Committee on Judiciary.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  20 V.S.A. § 2056b(a) is amended to read:

(a)  The Vermont criminal information center may provide Vermont criminal history records as defined in section 2056a of this title to bona fide persons conducting research related to the administration of criminal justice, subject to conditions approved by the commissioner of public safety to assure the confidentiality of the information and the privacy of individuals to whom the information relates.

Sec. 2.  20 V.S.A. § 2056c is amended to read:

§ 2056c.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO EMPLOYERS

(a)  As used in this section:

(1)  “Applicant” means an individual seeking or being sought for employment or, a volunteer position with an employer, a professional license or certification, or admission to a course of instruction offered by the Vermont criminal justice training council.

(2)  “Criminal conviction record” means the record of convictions in Vermont and convictions in other jurisdictions.

(3)  “Employer” means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company doing business in or operating within this state, which has one or more individuals performing services for it within this state; and

(A)  the employer is a qualified entity that provides care or services to vulnerable classes as provided in 42 U.S.C. §§ 5119a and 5119c; or

(B)  the employer is a postsecondary school with student residential facilities or an authorized agent.

(4)  “The center” means the Vermont crime criminal information center.

(5)  “Vulnerable classes” means children, the elderly, and persons with disabilities as defined in 42 U.S.C. § 5119c.

(b)(1)  An employer may obtain from the center a Vermont criminal conviction record and an out-of-state criminal record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center.  The user’s agreement shall require the employer to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the employer.

(2)  An individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C.

§ 5119c may obtain from the center an out-of-state criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center and complies with all other provisions of this section.

(c)  The employer may obtain the criminal conviction record only:

(1)  after the applicant has been given an offer of employment conditioned on the record check or;

(2)  after a volunteer has been offered a position conditioned on the record check;

(3)  after an applicant has completed all other necessary requirements and is eligible to receive a professional license or certification conditioned on the record check; or

(4)  after an applicant has been accepted into a course of instruction offered by the Vermont criminal justice training council conditioned on the record check.

(d)(1)  Postsecondary school employers may obtain criminal records only for applicants who apply for employment or volunteer positions that provide access to student residential facilities.  Employers shall be provided with informational material by the center prior to authorization to request criminal conviction records.  The materials shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(2)  Employers shall certify on the user agreement that they have read and understood the materials prior to receiving authorization to request records from the center.

(e)  The release form shall contain the applicant’s name, signature, date of birth, place of birth, and the signature as attested to by a notary public.  The release form shall state that the applicant has the right to appeal the findings to the center, pursuant to rules adopted by the commissioner of public safety.

(f)  No (1)  Except as otherwise authorized by this chapter, no person shall confirm the existence or nonexistence of criminal conviction record information to any person who would not be eligible to receive the information pursuant to this subchapter or disclose the contents of a criminal conviction record without the record subject’s permission to any person other than the applicant and properly designated employees of the employer who have a documented need to know the contents of the record.

(2)  An employer who receives criminal conviction records pursuant to this section shall maintain a confidential log of all record requests as specified by the center.  The employer shall confidentially retain records relating to requests for criminal conviction records for a period of three years.  At the end of the retention period, if logs and records are to be destroyed, they shall be shredded.

(g)  A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority subsection (f) of this section shall be fined assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.

(h)  The center shall provide notice of the penalty for unauthorized disclosure on a form accompanying any report of a criminal conviction record to an employer.  The notice shall include, in boldface print, the following statements:  THE REQUESTOR AGREES TO USE CRIMINAL CONVICTION RECORD INFORMATION RECEIVED FROM THE VERMONT CRIME CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW. THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL CONVICTION RECORD INFORMATION WITHOUT THE APPLICANT’S PERMISSION TO ANY PERSON OTHER THAN THE APPLICANT AND PROPERLY DESIGNATED EMPLOYEES WHO HAVE A DOCUMENTED NEED TO KNOW THE CONTENTS OF THE RECORD.  A VIOLATION MAY RESULT IN A FINE CIVIL PENALTY OF UP TO $5,000.00.  EACH UNAUTHORIZED DISCLOSURE SHALL CONSTITUTE A SEPARATE CIVIL VIOLATION.

(i)  Nothing in this section shall create a statutory duty for an employer to perform a criminal conviction record check on every job applicant hired by the employer.  An employer’s failure to obtain a criminal conviction record on an employee who subsequently commits a criminal offense shall not be the sole factor in determining civil or criminal liability unless otherwise authorized by law.

Sec. 3.  20 V.S.A. § 2056d(a) is amended to read:

(a)  Statewide criminal history records shall be released only by the Vermont criminal information center.

Sec. 4.  20 V.S.A. § 2056f is added to read:

§ 2056f.  DISSEMINATION OF CRIMINAL HISTORY RECORDS AND CRIMINAL CONVICTIONS RECORDS TO AN INDIVIDUAL

A person may obtain a copy of his or her own criminal history record as defined in section 2056a of this title or criminal conviction record as defined in section 2056c from the Vermont criminal information center.

Sec. 5.  20 V.S.A. § 2056g is added to read:

§ 2056g.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO LICENSED PRIVATE INVESTIGATORS

(a)  As used in this section:

(1)  “Applicant” means an individual seeking or being sought for employment or a volunteer position with a licensed private investigator or with a client who has hired the licensed private investigator.

(2)  “The center” means the Vermont crime information center.

(3)  “Client” means any individual, organization, or governmental body that hires a private investigator to provide investigative services, including obtaining criminal conviction records.

(4)  “Criminal conviction record” means the record of convictions in Vermont.

(5)  “Private investigator” means a person licensed under chapter 59 of Title 26 to provide private investigative services.

(b)  Except as provided in section 2056c of this title, a private investigator may obtain from the center a criminal conviction record for any person, provided that the following conditions have been met:

(1)  The private investigator and the private investigator’s client have each filed a user’s agreement with the center.  The user’s agreement shall require the private investigator and the client to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the private investigator and the client.

(2)  The private investigator shall complete a criminal conviction record request form specified by the center and signed by both the private investigator and the client.  The criminal record request form shall:

(A)  Specify the subject of the request and any identification required by the center.

(B)  Advise that the criminal conviction record information released by the center is subject to the conditions specified in the user agreement.

(C)  Advise that the criminal conviction record information released by the center is subject to the conditions specified in the negative action notification requirements in subsection (d) of this section, and that the center has the authority to audit recipients of criminal conviction records to enforce this requirement.

(3)  The private investigator shall complete a criminal conviction record training program conducted by the center prior to authorization to obtain criminal conviction records from the center.  The training program shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(F)  The negative action notification policy.

(c)  When a private investigator provides a client with a copy of a subject’s criminal conviction record, the private investigator shall provide the client with a copy of the signed criminal record request form which specifies the client’s obligations to the subject of the record in the event that the client takes a negative action against the subject based on the results of the record check.

(d)(1)  In the event that a negative action is taken against the subject of the record by the client as a result of the record check, the client shall provide the subject of the record with the following:

(i)  A written notification of negative action sent via certified mail to the subject of the record within five business days of the date that the client determined that negative action would be taken against the subject of the record.

(ii)  A copy of the criminal conviction record on which the negative action was based.

(iii)  A notice that the subject has the right to appeal to the center any errors that might appear on the record. 

(2)  Negative action shall mean any action which results in any adverse consequence to the subject of the record.

(3)  The negative action notification process specified in this subsection shall be subject to audit by the center.

(e)  A licensed private investigator or client who seeks to obtain from the center a criminal conviction record on an applicant must do so pursuant to section 2056c of this title.

(f)  No person shall confirm the existence or nonexistence of criminal record information to any person who would not be eligible to receive the information pursuant to this subchapter.

(g)  A person who violates the provisions of this section shall be assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure or failure to comply with notification regarding a negative action shall constitute a separate civil violation.

Sec. 6.  20 V.S.A. § 2063 is amended to read:

§ 2063.  CRIMINAL HISTORY RECORD FEES; CRIMINAL HISTORY RECORD CHECK FUND

(a)  Except as otherwise provided for in this section, the cost of each check for a criminal history check record as defined in section 2056a of this title or a criminal conviction record as defined in section 2056c of this title based on name and date of birth shall be $10.00.  Out-of-state criminal history record checks shall include any additional fees charged by the state from which the record is requested.

(b)  Requests made by criminal justice agencies for criminal justice purposes or other purposes authorized by state or federal law shall be exempt from all record check fees.  The following types of requests shall be exempt from the Vermont criminal record check fee:

(1)  Requests made by governmental agencies or entities regulated by governmental agencies in accordance with local, state or federal law or regulation which requires a criminal record check for employment or licensing any individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c.

(2)  Requests made by researchers approved by the Vermont criminal information center to conduct research related to the administration of criminal justice.  A fee, however, may be charged by the center which shall reflect the cost of generating the requested information.

(3)  Requests made by individuals to review their own record at the Vermont criminal information center; however, copies of the individual’s record are not exempt from the record check fee.

(c)  The criminal history record check fund is established and shall be managed by the commissioner of public safety in accordance with the provisions of Title 32, chapter 7, subchapter 5 of chapter 7 of Title 32.  All fees paid under this section shall be placed in the fund and used for personnel and equipment related to the processing, maintenance, and dissemination of criminal history records.  The commissioner of finance and management may draw warrants for disbursements from this fund in anticipation of receipts.

(d)  The department of public safety shall have the authority, with the approval of the secretary of administration, to establish limited service positions as are necessary to provide criminal record checks in a timely manner, provided that there are sufficient funds in the criminal history record check fund to pay for the costs of these positions.

Sec. 7.  DATA COLLECTION

The Vermont criminal information center shall report to the house and senate committees on judiciary on or before January 15, 2007 on the following:

(1)  All individuals, organizations, or governmental bodies entitled to obtain criminal record information from the center and the legal authority for such access.

(2)  The record information that is released to those identified by subdivision (1) of this section.

(3)  The number of record requests by a group of requestors.

(4)  The number of record requests without release forms.

(5)  An assessment of the cost of the criminal record check program compared to the revenues generated from record requests.

(6)  Any additional data that will assist the committees in engaging in a comprehensive review of access to statewide criminal record information.

Sec. 8.  REPORT

(a)  There is established an access to criminal history record information committee for the purpose of making findings and recommendations regarding public access to statewide criminal history records from the Vermont crime information center and the dissemination of electronic criminal case record information by the court.  The committee shall consider what information should be released, by what method and to whom, in a manner that is consistent, reliable, and sensitive to privacy issues.

(b)  The committee shall consist of the following members:

(1)  A judge or justice appointed by the chief justice of the Vermont supreme court.

(2)  The director of the Vermont crime information center.

(3)  The executive director of the Vermont bar association or his or her designee.

(4)  The executive director of the American Civil Liberties Union.

(5)  Two former legislators appointed jointly by the speaker of the house and the senate committee on committees.

(c)  The judge or justice shall be the chair of the committee.

(d)  The Vermont crime information center and the judiciary shall provide the committee with information and assistance necessary to accomplish its charge.

(e)  Former legislative members of the committee shall be entitled to per diem compensation and reimbursement for expenses in the same manner as current legislative members in accordance with 2 V.S.A. § 406.

(f)  The committee shall report its findings and recommendations to the house and senate committees on judiciary on or before January 15, 2007.

Sec. 9.  DISSEMINATION OF ELECTRONIC CASE RECORDS

The judiciary shall not permit public access via the internet to criminal case records or family court case records prior to June 1, 2007.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, internet access to criminal case records for criminal justice purposes, as defined in section 2056a. 

(Committee vote: 5-0-1)


Favorable with Proposal of Amendment

H. 579

An act relating to relating to Vermont service medals.

Reported favorably with recommendation of proposal of amendment by Senator Kitchel for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  20 V.S.A. § 1545 is amended to read:

§ 1545.  VERMONT DISTINGUISHED SERVICE MEDALS

(a)  The governor may present in the name of the state of Vermont a distinguished service medal, of appropriate design, and a separate ribbon that may be worn in place of the medal, lapel button, and certificate to an individual who was a resident of Vermont at the time of entry into military service, and, or the individual’s spouse, child, parent, sibling, or grandchild if the individual is deceased, provided the individual meets all the following eligibility criteria:

(1)  Served in a combat theater of operations during a war or emergency as a member of the federal active-duty military, as evidenced by copies of the person’s honorable discharge and severance papers, DD Form 214 or, for World War II veterans, WD Form 53; or service during any period of war prior to April 6, 1916; foreign service during World War I or World War II; or receipt of federal decorations showing combat related service since January 1, 1947.

(2)  Died in a combat theater of operations during a war or emergency, as evidenced by copies of the individual’s DD Form 1300; or Received an honorable discharge from the federal active-duty military, or died before separating from the federal active-duty military, or was declared missing in action by the United States Department of Defense; or is currently a member in good standing in the federal active-duty military with more than four years of service.

(3)  Was officially listed as a prisoner of war or missing in action by the United States Department of Defense while serving in a combat theater of operations during a war or emergency a resident of Vermont at the time of entry into military service, or was mobilized to federal active duty while a member of the Vermont National Guard or other reserve unit located in Vermont, regardless of the resident’s home of record.

(b)  The service medal for a deceased individual or an individual who has been listed as a prisoner of war or missing in action shall be issued to the individual’s parent, spouse, sibling or other relative who submits all the required forms and documentation on behalf of that individual.

(c)  The distinguished service medal shall conform to MIL-DTL-3943 and the state specification sheets; the ribbon shall conform to MIL-DTL-11589 as to quality and construction; and the lapel button shall conform to

MIL-DTL-11484.  The state specification sheets and original model shall be kept by the secretary of state.

(d)(c)  Application for a distinguished service medal may be made by a qualified individual under this section, or by the individual’s parent, spouse, sibling or other relative, to the office of veterans’ affairs of the office of the adjutant general.  The office of veterans’ affairs shall also design, cast, and procure the distinguished service medals, and maintain and verify records and documents pertaining to the medals and awards.  Approved applicants may choose to receive the medal by mail or in a ceremony with the governor or a representative of the governor.

Sec. 2.  20 V.S.A. § 1546 is amended to read:

§ 1546.  VERMONT VETERANS’ MEDAL

(a)  Each living individual who was a resident of Vermont at the time of entry into military service and was honorably discharged or transferred to a reserve status in the armed forces of the United States, and served an entire two-year tour of active duty unless discharged for the convenience of the government shall be eligible to receive the Vermont veterans’ medal, upon written request to the Vermont office of veterans’ affairs, accompanied by a copy of the individual’s DD Form 214 or WD Form 53, and any additional supporting information documenting residency if the DD Form 214 does not indicate a Vermont address as the individual’s home of record.  The office of veterans’ affairs may present in the name of the state of Vermont a veterans’ medal, ribbon, lapel button, and certificate to an individual or the individual’s spouse, child, parent, sibling, or grandchild if the individual is deceased and the individual meets all the following eligibility criteria:

(1)  Completed a minimum two-year tour of federal active military duty, unless discharged for the convenience of the government, and received an honorable discharge, died before separating from the federal active-duty military, or was declared missing in action by the United States Department of Defense; or the individual is currently on federal active military duty and in good standing with more than four years of service.

(2)  Was a resident of Vermont at the time of entry into military service, or was mobilized to federal active duty while a member of the Vermont National Guard or other reserve unit located in Vermont, regardless of the individual’s home of record.

(b)  The Vermont veterans’ medal shall be awarded for honorable service in the active military service of the United States, including any member of the Vermont National Guard or the ready reserves who was mobilized for active federal service during a time of conflict.  The Vermont veterans’ medal may be awarded regardless of length of service if the member dies while on active duty, becomes a prisoner of war, or is listed as missing in action.

(c)  The Vermont veterans’ medal shall conform to MIL-DTL-3943 and the state specification sheets, and shall be as follows:  the obverse shall be a relief replica of the coat of arms of the state of Vermont, and shall have the words “Vermont National Defense” in a circular style with “1777” at the bottom and centered.  The existing great seal of the secretary of state Vermont shall be the model for the reverse side.  The ribbon shall conform to MIL-DTL-11589 as to quality and construction, and shall consist of the four primary colors of the Vermont coat of arms:  green, blue, yellow, and red.  The lapel button shall conform to MIL-DTL-11484.  The state specification sheets and original model shall be kept by the secretary of state.

(d)(c)  Application for a Vermont veterans’ distinguished service medal may be made by a qualified individual under this section, or by the individual’s parent, spouse, sibling or other relative, to the office of veterans’ affairs of the office of the adjutant general.  The office of veterans’ affairs shall also procure and cast the medal according to the design prescribed by subsection (c) of this section, and maintain and verify records and documents pertaining to the medals and awards veterans’ medal will be made to the office of veterans’ affairs.  The office of veterans’ affairs shall also design, cast, and procure the veterans’ medals and maintain and verify records and documents pertaining to the medals.  Approved applicants may choose to receive the medal by mail or in a ceremony with a representative of the state of Vermont.

Sec. 3.  20 V.S.A. § 1547(a) is amended to read:

(a)  The governor, or his or her designee, at an appropriate time and place, shall present the Vermont patriot’s medal and accompanying certificate to the family of a Vermont resident member or nonresident member of the Vermont national guard or other reserve unit located in Vermont, who is killed in action while serving in the armed forces after February 28, 1961.

Sec. 4.  EFFECTIVE DATE

This act shall take effect upon passage.

(Committee Vote: 6-0-0)

(No House amendments.)

ORDERED TO LIE

S. 112

An act relating to the practice of optometry.

PENDING ACTION:  Second reading of the bill.

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading of the bill.

CONFIRMATIONS

     The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

     Robert Alberts of Bridport – Member of the Vermont Housing Finance Agency – By Sen. Ayer for the Committee on Finance.  (2/10)

     John Valente of Rutland – Member of the Vermont Municipal Bond Bank – By Sen. Maynard for the Committee on Finance.  (2/24)

CROSSOVER DEADLINES

1.  Bill Introduction Deadlines

          (a)  The deadline for filing drafting requests for new bills for the 2006 Session has expired under our Senate Rules.

          (b)  Accordingly, any new bill for the 2006 Session can now only be introduced with the consent of the Rules Committee, whether sponsored by an individual Senator or by any standing committee.

2.  Bill Reporting Deadlines

          (a)  A “bill reporting deadline” means the date by which a bill must be reported out of a committee and filed with the Secretary of the Senate in order to place that bill on the calendar for notice the next legislative day.

          (b)  For Senate bills introduced during this biennium, the following bill reporting deadlines are established for the 2006 adjourned session:

               (1)  From the standing committee of last reference (excluding the Committees on Appropriations and Finance), all bills must be reported out of committee on or before March 3, 2006.

               (2)  For bills referred pursuant to Senate Rule 31, all bills must be reported out of the Committees on Appropriations and Finance on or before March   17, 2006.

          (c)  These deadlines may be waived for any bill or committee only by consent given by the Committee on Rules.

REPORTS ON FILE

Pursuant to the provisions of 2 V.S.A. §20(c), one (1) copy of the following reports is on file in the office of the Secretary of the Senate:

100.   Report on Requests for Proposals to Lease the Cheney House, a state-owned property in Westmore, Vermont.  (Agency of Natural Resources, Dept. of Forests, Parks and Recreation).  (February 2006).

101.   Lake Champlain 2009 Strategic Plan.  (February 2006).

102.   Vermont State Housing Authority 2005 Annual Report.  (February 2006).

103.   Vermont Municipal Bond Bank 2005 Annual Report.  (February 2006).

104.   Vermont Educational & Health Buildings Financing Agency 2005 Annual Report.  (February 2006).



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us