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Senate Calendar

thursday, april 17, 2008

101st DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

UNFINISHED BUSINESS OF TUESDAY, APRIL 15, 2008

S. 278     Relating to financing campaigns (VETOED)..................................... 1483

                              Pending Question:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

UNFINISHED BUSINESS OF WEDNESDAY, APRIL 16, 2008

Third Reading

H. 884    Prekindergarten education programs through school districts............ 1483

                        Sen. Collins amendment......................................................... 1483

NEW BUSINESS

Second Reading

Favorable

H. 809    Fire safety inspections for independent residential schools................ 1484

                        Education Committee Report................................................. 1484

Favorable with Proposal of Amendment

H. 94      Retail sales and taxing of specialty beers.......................................... 1485

                        Ec. Dev., Housing & General Affairs Committee Report......... 1485

H. 149    Liquor and tobacco identification cards........................................... 1486

                        Ec. Dev., Housing & General Affairs Committee Report......... 1486

H. 257    Codification of existing community justice centers............................ 1487

                        Judiciary Committee Report................................................... 1487

H. 332    Sale and closure of mobile home parks............................................ 1489

                        Ec. Dev., Housing & General Affairs Committee Report......... 1489

H. 615    Relating to juvenile judicial proceedings........................................... 1503

                        Judiciary Committee Report................................................... 1503

H. 700    Sale of bottles of wine at festivals.................................................... 1544

                        Ec. Dev., Housing & General Affairs Committee Report......... 1544

                        Sen. Illuzzi amendment........................................................... 1544


H. 748    Permit students to possess and self-administer emergency meds....... 1547

                        Education Committee Report................................................. 1547

House Proposal of Amendment

S. 146     Advertising and producing musical performances............................. 1549

Resolutions for Action

JRS 63   Establishing a locally grown collaborative......................................... 1549

JRS 64   Observance of the 2008 National Crime Victims’ Rights Week....... 1549

Constitutional Amendment

Prop. 1   General assembly, organizational session......................................... 1549

                        Government Operations Committee Report............................ 1549

NOTICE CALENDAR

Favorable

H. 535    Creation of a state law enforcement study committee....................... 1551

                        Government Operations Committee Report............................ 1551

H. 558    Waste facility franchise tax exemption for mining waste.................... 1551

                        Natural Resources and Energy Committee Report.................. 1551

H. 704    Notices of transfer by an insurer on policies to an affiliate................. 1552

                        Finance Committee Report.................................................... 1552

JRH 30  Inclusion of international education programs at Vermont’s colleges ........                   and universities 1552

                        Education Committee Report................................................. 1552

Favorable with Proposal of Amendment

H. 11      Relating to the commissioner of health............................................. 1552

                        Health and Welfare Committee Report................................... 1552

H. 203    Relating to when a deceased spouse dies without a will.................... 1553

                        Judiciary Committee Report................................................... 1553

H. 290    Relating to underground utility damage prevention system................. 1562

                        Ec. Dev., Housing & General Affairs Committee Report......... 1562

H. 306    Relating to telemarketing................................................................. 1565

                        Ec. Dev., Housing & General Affairs Committee Report......... 1565

H. 330    Repeal of the law relating to municipal trailer park ordinances.......... 1566

                        Natural Resources and Energy Committee Report.................. 1566

H. 436    Misc. amendments to local election/municipal government laws........ 1566

                        Government Operations Committee Report............................ 1566

H. 515    Collection and disposal of mercury added thermostats..................... 1580

                        Natural Resources and Energy Committee Report.................. 1580

H. 711    Agricultural, forestry, and horticultural education.............................. 1587

                        Education Committee Report................................................. 1587


H. 806    Relating to public water systems...................................................... 1588

                        Natural Resources and Energy Committee Report.................. 1588

H. 879    Unnecessary duplicative reports of special education audits.............. 1589

                        Education Committee Report................................................. 1589

House Proposals of Amendment

S. 232     Relating to mobile polling stations.................................................... 1593

S. 240     Law enforcement exemption to social security breach notice act....... 1594

S. 290     Relating to agricultural water quality................................................. 1594

S. 291     Farm agronomic practices program at Agency of Agriculture, Food, .......                   and Markets     1595

Constitutional Amendments

(Fourth Day on Notice Calendar)

Prop. 5   Elections; voter’s oath; self-administration....................................... 1597

                        Government Operations Committee Report............................ 1597

ORDERED TO LIE

S. 70       Empowering municipalities to regulate pesticides.............................. 1598


S. 108     Electing U.S. Representative & U.S. Senator by instant runoff......... 1598

H. 331    Financing the purchase of a mobile home......................................... 1598

JRS 24   Congressional “fast track” review of trade agreements..................... 1598

Concurrent Resolutions for Notice

(For text of Resolutions, see Addendum to April 16, 2008 Calendar)

SCR 46    Congratulating QNEK on its 15th anniversary................................. 165

SCR 47    Caitlin Manahan on being named the 2008 Miss Hockey................. 166

SCR 48    Granite Center Garden Club on its 70th anniversary......................... 167

SCR 49    Congratulating Marlboro College on its 60th anniversary.................. 168

SCR 50    WVMT radio’s Charlie and Ernie In The Morning Program............. 170

SCR 51    Montpelier High School principal Peter Evans................................. 171

HCR 269  Mount Anthony Union H.S. wrestling team..................................... 172

HCR 270  Mount Anthony Union H.S. Nordic ski team.................................. 173

HCR 271  Mount Anthony girls’ basketball team............................................. 174

HCR 272  Former Bennington County Assistant Judge Ezekiel S. Cross.......... 176

HCR 273  Vermont Frost Heaves American Basketball Championship............ 177

HCR 274  Washington County Mental Health Services, Inc. 40th anniv........... 179

HCR 275  Retiring Weybridge town moderator Stanley James, Jr.................... 180

HCR 276  Recognizing he lifesaving efforts of William Woolsey....................... 181

HCR 277  In memory of Rep. David T. Clark of St. Johnsbury........................ 183

HCR 278  Vermont Woman on Newspaper of the Year Award..................... 184

HCR 279  FIRST Robotics Competition teams from Vermont......................... 185


 



 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF TUESDAY, APRIL 15, 2008

S. 278

An act relating to financing campaigns.

PENDING QUESTION:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

UNFINISHED BUSINESS OF WEDNESDAY, APRIL 16, 2008

Third Reading

H. 884

An act relating to ensuring quality in prekindergarten education programs offered by or through school districts.

PROPOSAL OF AMENDMENT TO H. 884 TO BE OFFERED BY SENATOR COLLINS ON BEHALF OF THE COMMITTEE ON EDUCATION BEFORE THIRD READING

Senator Collins on behalf of the Committee on Education, moves that the Senate propose to the House to amend the bill by adding two new section to be numbered Secs. 4 and 5 to read as follows:

Sec. 4.  16 V.S.A. § 4001(1)(C) is amended to read:

(C)  The full-time equivalent enrollment for each prekindergarten child as follows:  If a child is enrolled in 10 or more hours of prekindergarten education per week or receives 10 or more hours of essential early education services per week, the child shall be counted as one full-time equivalent pupil. If a child is enrolled in six or more but fewer than 10 hours of prekindergarten education per week or if a child receives fewer than 10 hours of essential early education services per week, the child shall be counted as a percentage of one full-time equivalent pupil, calculated as one multiplied by the number of hours per week divided by ten.  A child enrolled in prekindergarten education for fewer than six hours per week shall not be included in the district’s average daily membership.  Although there is no limit on the total number of children who may be enrolled in prekindergarten education or who receive essential early education services, the total number of prekindergarten children that a district may include within its average daily membership shall be limited as follows:

(i)  All children receiving essential early education services may be included.

(ii)  Of the children enrolled in prekindergarten education offered by or through a school district who are not receiving essential early education services, the greater of the following may be included:

(I)  ten children; or

(II)  the number resulting from:

(aa)  one plus the average annual percentage increase or decrease in the district’s first grade enrollment average daily membership as counted in the census period of the previous five years; multiplied by

(bb)  the most immediately previous year’s first grade census count average daily membership; or

(III)  the total number of four-year-olds in the district  the total number of children residing in the district who are enrolled in the prekindergarten program or programs and who are eligible to enter kindergarten in the district in the following academic year

Sec. 5.  16 V.S.A. § 4001(15) is amended to read:

(15)  “Prekindergarten child” means a three- or four-year-old child who is enrolled in a prekindergarten program offered by or through a public school district pursuant to rules adopted under section 829 of this title or who is receiving essential early education services offered pursuant to section 2956 of this title.  Prekindergarten child also means a five-year-old child who otherwise meets the terms of this definition if that child is not yet eligible for or enrolled in kindergarten.

NEW BUSINESS

Second Reading

Favorable

H. 809

An act relating to requiring annual fire safety inspections for approved independent residential schools.

Reported favorably by Senator Giard for the Committee on Education.

(Committee vote: 4-1-0)

(For House amendments, see House Journal for March 19, 2008, page 615.)


Favorable with Proposal of Amendment

H. 94

An act relating to retail sales and taxing of specialty beers.

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

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.  7 V.S.A. § 2(11), (14) and (20) are amended to read:

(11)  “Hotels”: a first class hotel as determined by the liquor control board Specialty beer” means a malt beverage that contains more than eight percent alcohol and not more than 16 percent alcohol by volume at 60 degrees Fahrenheit.  

(14)  “Malt beverages”:  all fermented beverages of any name or description manufactured for sale from malt, wholly or in part, or from any substitute therefor therefore, known as beer, porter, ale, and stout, containing not less than one percent nor more than eight 16 percent of alcohol by volume at 60 degrees fahrenheit Fahrenheit.  However, if such a beverage has an alcohol content of more than six percent and not more than eight percent and has a terminal specific gravity of less than 1.009, it shall be deemed to be a spirit and not a malt beverage.  The holder of the certificate of approval or the manufacturer shall certify to the liquor control board the terminal specific gravity of the beverage when the alcohol content is more than six percent and not more than eight percent.           

(20)  “Spirits”:  beverages for sale containing more than one percent of alcohol obtained by distillation, by chemical synthesis, or through concentration by freezing; and vinous beverages containing more than 16 percent of alcohol; and all vermouths of any alcohol content; malt beverages containing more than eight 16 percent of alcohol or more than six percent of alcohol if the terminal specific gravity thereof is less than 1.009; in each case measured by volume at 60 degrees fahrenheit Fahrenheit.

Sec. 2.  7 V.S.A. § 421(a) is amended to read:

§ 421.  TAX ON MALT AND VINOUS BEVERAGES

(a)  Every bottler and wholesaler shall pay to the commissioner of taxes the sum of 26 and one-half cents per gallon for every gallon or its equivalent of malt beverage containing not more than six percent of alcohol by volume at 60 degrees fahrenheit sold by them to retailers in the state and the sum of 55 cents per gallon for each gallon of malt beverage containing more than six percent and not more than eight percent of alcohol by volume at 60 degrees fahrenheit and each gallon of vinous beverages sold by them to retailers in the state and shall also pay to the liquor control board all fees for bottler’s and wholesaler’s licenses.

Sec. 3.  STUDY OF FLAVORED MALT BEVERAGES; DEPARTMENT OF  LIQUOR CONTROL

(a)  The department of liquor control shall study and identify best practices for the marketing, sale, and taxation of flavored malt beverages, commonly called “alcopops,” malt based beverages containing other ingredients such as flavored distilled spirits, and “alcohol energy drinks,”  which are malt beverages continuing other ingredients such as caffeine.  The department shall consider the following:

(1)  Whether these beverages should be considered spirits, malt beverages, or a completely separate category of alcoholic beverages.

(2)  Whether these beverages and other flavored malt beverages should be distributed by wholesalers or the department.

(3)  The impact and future implications of these beverages in regard to controlling underage drinking and other public health and safety concerns.

(4)  Whether these beverages should be taxed at the lower malt beverage rate, the higher spirits rate, or a different tax rate.

(5)  Legislative and regulatory activities undertaken by other states in regard to these beverages.

(b)  The department shall complete the study and issue a written report of its findings, conclusions, and recommendations on or before January 1, 2009.  The report shall be provided to the house committees on general, housing and military affairs, and on ways and means and the senate committees on economic development, housing and general affairs and on finance.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for April 11, 2007, page 591.)

H. 149

An act relating to liquor identification and tobacco licenses.

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

The Committee recommends that the Senate propose to the House to amend the bill in Sec. 1, 7 V.S.A. § 602, in the first sentence after the words: “operator’s license” by adding the following: , enhanced driver’s license,

(Committee Vote: 5-0-0)

(No House amendments.)

H. 257

An act relating to codification of existing community justice centers.

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

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.  24 V.S.A. chapter 58 is added to read:

CHAPTER 58.  COMMUNITY JUSTICE CENTERS

§ 1961.  Legislative findings

A system of community justice centers that operates under the authority of a single statute will:

(1)  Help each community justice center collaborate more closely with law enforcement and state’s attorneys, state agencies, social service providers, victim advocacy organizations, and other community resources.

(2)  Enhance the services each community justice center provides.

(3)  Help each community justice center further its policy interest of achieving restorative justice.

§ 1962.  Definitions

As used in this chapter:

(1)  “Legislative body” means the mayor and board of aldermen of a city, a city council, a town selectboard, the president and trustees of an incorporated village, or the legislative bodies of a group of municipalities.

(2)  “Municipality” means a city, town, incorporated village, or group of municipalities.

§ 1963.  Authority of municipalities

The legislative body of any municipality may create within its jurisdiction a community justice center to resolve civil disputes and address the wrongdoings of individuals who have committed municipal, juvenile, or criminal offenses.  A municipality may designate an organization to act as its community justice center.

§ 1964.  STRUCTURE OF THE COMMUNITY JUSTICE BOARDS

Each community justice center:

(1)  Shall have an advisory board comprised of at least 51 percent citizen volunteers.

(2)  May use a variety of restorative justice approaches, including community panels or boards, group conferencing, or mediation.

(3)  Shall include programs to resolve disputes, address the needs of victims, address the wrongdoing of the offender, and promote the rehabilitation of youthful and adult offenders.

§ 1965.  duties of the community justice centers

Each community justice center:

(1)  Shall work in close coordination with state agencies, law enforcement agencies, state’s attorneys, social service providers, victim advocacy organizations, and other community resources in administering the programs defined in subdivision 1964(3) of this title.

(2)  Shall, in collaboration with state and local agencies, provide training on the restorative justice process to citizen volunteers to enable their participation in the local community justice center.

(3)  May address quality of life issues in the community it serves by providing informational and educational resources to the community.

(4)  May apply for funding from private foundations, other governmental sources, or other sources.

§ 1966.  Community JUSTICE centers’ relationship with state government entities

(a)  The agency of human services shall provide to the community justice centers the information, analysis, and technical support which the community justice centers, in collaboration with the agency of human services, determine are necessary to further their policy of restorative justice.

(b)  Funding from the agency of human services.  The agency of human services may provide funding and authorize community justice centers to participate in the implementation of state programs related to juvenile and criminal offenses.

(c)  Access to information.  Community justice center employees and volunteers participating in state-funded programs shall have access to information, analysis, and technical support as necessary to carry out their duties within the program in accordance with state and federal confidentiality statutes and policies.  Victim information that is not part of the public record shall not be released without the victim’s consent.

(d)  Liability.

(1)  For the purposes of defining liability, community justice center volunteers participating in programs funded by the agency of human services pursuant to subsection (b) of this section shall be considered volunteers of that agency.

(2)  In all other cases, the state and the municipality shall each be liable for the acts and omissions of employees operating within the scope of their employment.

§ 1967.  CASES PROHIBITED

No case involving domestic violence, sexual violence, sexual assault, or stalking shall be referred to a community justice center except in department of corrections offender reentry programs pursuant to protocols protecting victims.  The community justice centers shall work with the department of corrections and the center for crime victim services or its designee to develop victim safety protocols for community justice centers that take into consideration victim needs such as safety, confidentiality, and privacy.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 19, 2008, page 619.)

H. 332

An act relating to sale and closure of mobile home parks.

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

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.  10 V.S.A. § 6201(5), (6) and (7) are amended to read:

(5)  “Leaseholder” means a resident lawfully occupying a mobile home owned by the park owner or the owner of a mobile home sited on a mobile home lot in a mobile home park regardless of whether the leaseholder has actual possession of a written lease.

(6)  “Mobile home park resident” or “resident” means an individual, individuals, or family who occupies a mobile home on a permanent or temporary basis in a mobile home park as that term is defined in subdivision (2) of this section.

(7)  “Mobile home park owner” or “park owner” means the owners, operators, officers, or managing agents of a mobile home park as well as any person acting through any corporate or other device who has the practical authority to establish rules, policies, or other requirements for the operation of the mobile home park.  The term shall not include a stockholder for a corporation owning stock in a mobile home park unless such stockholder has a controlling interest in the corporation and has the practical authority to establish rules, policies or other requirements for the operation of the mobile home park.

Sec. 2.  10 V.S.A. § 6204(c) is amended to read:

(c)  To the extent that they are consistent with this chapter, the provisions of chapter 137 of Title 9 (residential rental agreements) and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the occupancy and rental of a mobile home but not and the provisions of subchapter 3 of chapter 169 of Title 12 (eviction) shall apply to the rental of a mobile home lot.

Sec. 3.  10 V.S.A. § 6205(c) is amended to read:

(c)  A resident of a mobile home park leaseholder may bring an action against a the park owner for a violation of sections 6236-6243 of this title.  The action shall be filed in district court for the district in which the alleged violation occurred.  If the resident's leaseholder’s claim against the owner exceeds the jurisdictional limit of the district court, an action may be brought in superior court in the county in which the alleged violation occurred. No action may be commenced by the resident leaseholder unless the resident leaseholder has first notified the park owner of the violation by certified mail at least 30 days prior to bringing the action.  During the pendency of an action brought by a resident leaseholder, the resident leaseholder shall pay rent in an amount designated in the lease, or as provided by law, which rental amount shall be deposited in an escrow account as directed by the court.

Sec. 4. 10 V.S.A. § 6231 is amended to read:

§ 6231.  Rules

* * *

(b)  The department of housing and community affairs may adopt rules to carry out the provisions of sections 6236-6243 of this title into effect.  The department shall seek advice and comment from the advisory commission prior to adopting rules.

(c)  A mobile home park that has been closed pursuant to subdivision 6237(a)(5) section 6237a of this title and reduced to no more than two occupied leased lots, shall be required, if the number of occupied leased lots subsequently is increased to more than two, to obtain all state land use and environmental permits required for a mobile home park that has been established or expanded after May 31, 1970.

Sec. 5.  10 V.S.A. § 6236 is amended to read:

(a) All terms governing the rental use and occupancy of a mobile home lot shall be contained in a written lease which shall be furnished to all mobile home residents. Mobile home park owners shall promulgate reasonable and fair lease terms governing the rental use and occupancy of a mobile home lot and shall furnish an initial copy of the lease to all mobile home residents leaseholders. Any lease term which that prohibits or in any other manner obstructs the ability of any park leaseholder to act in accordance with the provisions of this chapter shall be unenforceable. Any lease term which that is not uniformly applied to all mobile home residents leaseholders of the same or a similar category shall be unenforceable, except that an a park owner may establish a different lot rent rate for a mobile home park constructed after June 1, 1995, or for new lots in an expanded mobile home park constructed after June 1, 1995.  Mobile home park owners shall not restrict access by representatives of the department to the leaseholders of the park.

(b)  A lease term requiring the removal from a mobile home park of a mobile home which that is detrimental to the other tenants residents of the park for either health, safety or aesthetic reasons shall not be considered unreasonable or unfair.

(c)  A prospective resident Prospective leaseholders shall be furnished with a copy of the proposed lease prior to any agreement to lease use or occupy a mobile home lot, and upon acceptance of the lease terms the lease shall be signed by the lessor and lessee.  Any provision in a lease governing rental and utility charges shall be effective for a minimum of one year, except in the case of a new tenant leaseholder in a mobile home park in which there is a uniform rent schedule which that affects all lots in that park simultaneously.  The initial lease for a new tenant leaseholder may include the anticipated increase in the rent and utility charge at the time it occurs for the other lots.  A mobile home park owner shall provide residents leaseholders with a minimum of 60 days notice prior to any rent increase.  Rent increase notices shall not be given within six months prior to the issuance of a closure notice or at any time during which the closure notice is in effect.  All rent increases received by the park owner during the six months prior to the issuance of a closure notice shall be returned to the affected leaseholders within seven days of issuance of the closure notice, except when the commissioner determines the rent increase is needed to help remedy an emergency situation that affects the resident’s health, safety, or welfare.  This subsection shall not apply to proprietary leases in mobile home parks owned by limited equity housing cooperatives established under chapter 14 of Title 11.  The rental and utility charge may be increased during a year if the operating expenses of the park increase 20 percent or more during that year as the result of legislative action taken during that year and the increase could not have been anticipated.  The rental and utility charge may be increased during a year only to the extent necessary to cover the increase in operating expenses of the park.

(d)  No person shall sell, lease, or sublease a mobile home resident may sublet the resident's mobile home without the express permission or sublease or assign a lease for a lot in a mobile home park without first obtaining the written approval of the park owner, which shall not be unreasonably withheld.  A violation of this subsection shall be grounds for eviction.

(e)  All mobile home lot leases shall contain the following:

* * *

(5)  The requirement of to obtain permission, if any, from the park owner for subletting prior to leasing or selling a mobile home or assigning or subleasing a lease for a mobile home lot to another person.

(6)  The notice required from a mobile home resident leaseholder in order to terminate the lease or occupancy arrangement.

* * *

(f)  A copy of all new lease terms shall be furnished to all mobile home residents leaseholders at least 30 days prior to the effective date of any amendment, addition, or deletion of the existing lease terms.  Upon request, the park owner shall provide to any leaseholder a copy of the current lease for his or her lot.

Sec. 6.  10 V.S.A. § 6237(a), (b), and (d) are amended to read:

(a)  A mobile home resident leaseholder may be evicted only for nonpayment of rent or for a substantial violation of the lease terms of the mobile home park, or if there is a change in use of the park land or parts thereof or a termination of the mobile home park, and only in accordance with the following procedure:

(1)  A resident leaseholder shall not be evicted by force or any other self-help measure.

(2)  Prior to the commencement of any eviction proceeding, the park owner must notify the mobile home resident leaseholder by certified or registered mail, except as provided in subdivision (3) of this subsection;

(A)  of the grounds for an eviction proceeding;

(B)  that an eviction proceeding may be commenced if the mobile home resident leaseholder does not pay the overdue rent within 20 days from the date of the mailing of the notice.

* * *

(5)  A mobile home park owner shall give to each affected leaseholder and to the commissioner of the department of housing and community affairs notice by certified mail at least 18 months prior to any voluntary change in use of all or part of the park land or termination of the mobile home park that would result in the removal of any or all of the mobile home units.  Upon request, the commissioner of housing and community affairs may waive the notice requirement if the change in use is necessary to assure the health, safety or welfare of the park residents.  No eviction proceedings may be commenced during the 18-month notice period, except for nonpayment of rent.

(b)  A mobile home resident leaseholder shall not be evicted when there is proof that the lease terms he is the leaseholder has been accused of violating are not enforced with respect to the other mobile home residents or nonresidents leaseholders or others on the park premises.

* * *

(d)  This section shall apply only to evictions undertaken by the park owner of a mobile home park. Evictions of a mobile home tenant resident by a mobile home owner who is not the park owner of the mobile home park shall be governed by 9 V.S.A. § 4467.

Sec. 7.  10 V.S.A. § 6237a is added to read:

§ 6237a.  MOBILE HOME PARK CLOSURES

(a)  At least 18 months prior to the closure of a mobile home park or any mobile home lot that will result in the eviction of a  resident or a leaseholder or removal of a mobile home, a park owner shall give notice of the closure to each affected resident or leaseholder and to the commissioner by certified mail.  Upon request, the commissioner may waive some or all of the 18-month notice period if the closure is necessary to assure the health, safety, or welfare of park residents.  No evictions may be commenced during the 18‑month closure period except for nonpayment of rent or a substantial violation of the lease terms.

(b)  Prior to issuing a closure notice pursuant to subsection (a) of this section, a park owner shall first notify all mobile home owners of the park owner’s intent to sell in accordance with section 6242 of this title.  However, if the park owner sends a notice of closure to the residents and leaseholders without first providing the mobile home owners with a notice of sale under section 6242, then the park owner must retain ownership of the land for five years after the date the closure notice was provided.  If required, the park owner shall record the notice of the five-year restriction in the land records of the municipality in which the park is located.  The park owner may apply to the commissioner for relief from the notice and holding requirements of this subsection if the commissioner determines that strict compliance is likely to cause undue hardship to the park owner or the leaseholders, or both.  This relief shall not be unreasonably withheld.

(c)  When a park owner gives notice of intent to sell pursuant to section 6242 of this title, any previous notice of closure and any evictions commenced pursuant to the closure notice are void.

(d)  A park owner who gives notice of intent to sell pursuant to section 6242 of this title shall not give notice of closure until after:

(1)  At least 45 days after giving notice of intent to sell.

(2)  If applicable, the commissioner receives notice from the mobile home owners and the park owner that negotiations have ended following the 90‑day negotiation period provided in subdivision 6242(c)(1) of this title.

(e)  A park owner who closes a mobile home park within five years of providing closure notice by selling the land on which the park was located without complying with subsection (b) of this section shall be liable to the state in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater, unless the commissioner has granted relief from strict compliance pursuant to subsection (b) of this section.

(f)  A park owner may bring an action for possession upon the expiration of the 18-month closure notice.  The only defense to an action for possession in the case of a park closure is improper notice.

Sec. 8.  10 V.S.A. § 6238(a) and (b)(4) are amended to read: 

(a)  A prospective resident leaseholder or other person may not be charged an entrance fee for the privilege of leasing or occupying a mobile home lot. A reasonable charge for the fair value of services performed in placing a mobile home on a lot shall not be considered an entrance fee.

(b) A qualified park owner may charge the initial lessee or occupant of an eligible site a site improvement fee.

* * *

(4)  A mobile home park owner who has collected a site improvement fee may not terminate the park or change the use of any site which that has paid the fee without offering to sell the park to the leaseholders mobile home owners in accordance with the provisions of section 6242 of this title.

Sec. 9.  10 V.S.A. § 6239 is amended to read: 

§ 6239.  GOODS AND SERVICES

A mobile home resident leaseholder shall not be restricted in his or her choice of vendors from whom he or she may purchase goods and services. This section shall not be construed to prohibit a mobile home park owner or operator from contracting with any or all mobile home residents leaseholders for the sale, supply or distribution of goods and services, but such contract shall not be required as a condition of entrance to the mobile home park.

Sec. 10.  10 V.S.A. § 6240 is amended to read:

§ 6240.  SALE OF HOMES LOCATED IN PARKS

(a)  Prior to selling a mobile home located in a mobile home park, the mobile home owner shall notify the park owner by certified or registered mail of the name and mailing address of the prospective purchaser.  The seller may be held liable by the purchaser or prospective purchaser for failure to comply with this section.

(b)  A purchaser or prospective purchaser of a mobile home located in a park shall not be refused entrance if except for the inability of the purchaser and his the purchaser’s household to meet the terms of the proposed lease or to qualify under the lease terms a valid admission policy of the park.  Upon approval for entrance into the mobile home park, the purchaser or prospective purchaser shall be offered a written lease pursuant to section 6236 of this title.  If the purchaser or prospective purchaser does not notify the park owner in writing of any objections to the lease terms prior to occupancy of the mobile home park, the purchaser shall be deemed to have accepted the lease, regardless of whether the purchaser signs and returns a copy of the lease to the park owner.  The seller’s failure to provide the notice required in subsection (a) of this section shall not be grounds to deny the purchaser or prospective purchaser’s application.

(c)  A park owner shall not charge or collect any commission on the sale of a mobile home located in a park unless he the park owner contracts to sell the home.

Sec. 11.  10 V.S.A. § 6241(a) and (b)(4) are amended to read:

(a) A park owner may enter a mobile home lot in the park with the tenant's resident’s consent, which shall not be unreasonably withheld.

(b) A park owner may also enter a mobile home lot in the park between the hours of 7:00 a.m. and 7:00 p.m. on no less than 12 hours' notice for any of the following purposes:

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(4)  To exhibit show the lot to prospective or actual purchasers, mortgagees, tenants residents, workers or contractors.

Sec. 12.  10 V.S.A. § 6242 is amended to read:

§ 6242.  LEASEHOLDER'S MOBILE HOME OWNERS’ RIGHT TO NOTIFICATION PRIOR TO PARK SALE

(a)  A mobile home park owner shall give to each leaseholder mobile home owner and to the commissioner of the department of housing and community affairs notice by certified mail of his or her intention to sell the mobile home park. For the purpose of this section, a leaseholder is the holder of a lease for a lot or a leasehold on which a mobile home owned by the leaseholder is sited. Nothing herein shall be construed to restrict the price at which the park owner offers the park for sale.  The notice shall state all the following:

(1)  that That the park owner intends to sell the park;.

(2)  the The price, terms and conditions under which the park owner offers the park for sale;.

(3)  a A list of the affected leaseholders mobile home owners and the number of leaseholds held by each;.

(4)  the The status of compliance with applicable statutes, regulations and permits, to the park owner's best knowledge, and the reasons for any noncompliance; and.

(5)  that That for 45 days following the notice the mobile home park owner shall not make a final unconditional acceptance of an offer to purchase the park and that if within the 45 days the park owner receives notice pursuant to subsection (c) of this section that a majority of the leaseholders mobile home owners intend to consider purchase of the park, the park owner shall not make a final unconditional acceptance of an offer to purchase the park for an additional 90 days, starting from the 46th day following notice, except one from a group representing a majority of the leaseholders mobile home owners or from a nonprofit corporation approved by a majority of the leaseholders mobile home owners.

(b)  The leaseholders mobile home owners shall have 45 days following notice under subsection (a) of this section in which to determine whether they intend to consider purchase of the park through a group representing a majority of the leaseholders mobile home owners or a nonprofit corporation approved by a majority of the leaseholders mobile home owners. A majority of the leaseholders mobile home owners shall be determined by one vote per leasehold and no leaseholder mobile home owner shall have more than three votes or 30 percent of the aggregate park vote, whichever is less.  During this 45-day period, the park owner shall not accept a final unconditional offer to purchase the park. A park owner shall not restrict representatives of the department from access to the park residents.

(c)  If the park owner receives no notice from the leaseholders mobile home owners during the 45-day period or if the leaseholders mobile home owners notify the park owner that they do not intend to consider purchase of the park, the park owner has no further restrictions regarding sale of the park pursuant to this section.  If during the 45-day period, the park owner receives notice in writing that a majority of the leaseholders mobile home owners intend to consider purchase of the park then the park owner shall do all the following:

(1)  shall not Not accept a final unconditional offer to purchase from a party other than leaseholders for 90 days following the 45-day period, a total of 135 days following the notice from the leaseholders;.

(2)  shall negotiate Negotiate in good faith with the group representing a majority of the leaseholders mobile home owners or a nonprofit corporation approved by a majority of the leaseholders mobile home owners concerning purchase of the park;.

(3)  shall consider Consider any offer to purchase from a group representing a majority of the leaseholders mobile home owners or from a nonprofit corporation approved by a majority of the leaseholders mobile home owners.

(d)  A park owner who sells a mobile home park without complying with this section shall be liable to the residents mobile home owners in the aggregate amount of $10,000.00 or 50 percent of the gain realized by the park owner from the sale, whichever is greater. A sale, an offer to sell, or an attempt to sell a mobile home park without complying with this section shall also be subject to the remedies of section 6205 of this title, including actual and punitive damages.

(e)  The provisions of this section do not apply when the sale, transfer or conveyance of the mobile home park is any one or more of the following:

(1)  through Through a foreclosure sale;.

(2)  to To a member of the park owner's family or to a trust for the sole benefit of members of the park owner's family;

(3)  among Among the partners who own the mobile home park;.

(4)  incidental Incidental to financing the park;.

(5)  between Between joint tenants or tenants in common;.

(6)  pursuant Pursuant to eminent domain.

(7)  Pursuant to a municipal tax sale.

(f)  No additional notice pursuant to subsection (a) of this section shall be required if the sale is in compliance with either of the following:

(1)  The mobile home park owner completes a sale of the park within one year from the expiration of the 45-day period following the date of the notice and the sale price is either of the following:

(A)  No less than the price for which the park was offered for sale pursuant to subsection (a) of this section.

(B)  Substantially higher than the final written offer from a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners.

(2)  The park owner has entered into a binding purchase and sale agreement with a group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners with a closing date later than one year from the date of the notice.

(g)  A majority of the leaseholders group representing a majority of the mobile home owners or a nonprofit corporation approved by a majority of the mobile home owners shall negotiate in good faith with the park owner for purchase of the park.

Sec. 13.  10 V.S.A. § 6244 is amended to read:

§ 6244.  SECURITY DEPOSITS

(a)  A security deposit is any advance, deposit or prepaid rent which is refundable to a mobile home resident leaseholder at the termination or expiration of the occupancy. A security deposit is to secure the resident's leaseholder’s obligation to pay rent and to maintain a rented mobile home or mobile home lot.

(b)  The mobile home park owner may retain all or a portion of the security deposit for any of the following reasons:

(1)  Nonpayment of rent.

(2)  Damage to property of the park owner, unless the damage is the result of normal wear and tear or the result of actions or events beyond the control of the resident leaseholder.

(3)  Nonpayment of utility or other charges which the resident leaseholder was required to pay directly to the park owner or to a utility.

(4)  Expenses for removal of articles abandoned by the resident leaseholder, including personal property, the mobile home, rubbish and motor vehicles from the mobile home lot.

(c)  A park owner shall return to the resident leaseholder the security deposit with a written statement itemizing any deductions within 14 days from the date on which the resident leaseholder:

* * *

(3)  has been removed from the park, together with the resident’s mobile home pursuant to a writ of possession.

(d)  The park owner shall comply with this section by hand-delivering or mailing the statement and any payment required to the last known address of the resident leaseholder.

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(f)  Upon termination of the park owner's interest in the park, the security deposit shall be transferred to the new park owner.  The new park owner shall give the resident leaseholder actual notice of the new park owner's name and address with a statement that the security deposit has been transferred to the new park owner.

(g)  A town or municipality may adopt an ordinance governing security deposits on mobile homes or mobile home lots.  The ordinance shall be supplemental to and not inconsistent with the minimum protections of the provisions of this section.  The ordinance may not limit how a security deposit is held.  The ordinance may authorize the payment of interest on a security deposit.  The ordinance may provide that a housing board of review constituted pursuant to 24 V.S.A. § 5005 may hear and decide disputes related to security deposits upon request for a hearing by a park owner or resident leaseholder. The board's actions shall be reviewable under 24 V.S.A. § 5006.

Sec. 14.  10 V.S.A. § 6245 is amended to read:

(a)  No park owner may wilfuly cause, directly or indirectly, the interruption or termination of any utility service to a resident mobile home except for temporary interruptions for necessary repairs.

(b)  No park owner may directly or indirectly deny a resident leaseholder access to and possession of the resident's rented or leased premises a mobile home, except through proper judicial process.

(c)  No park owner may directly or indirectly deny a resident leaseholder access to and possession of the resident's leaseholder’s rented or leased property, except through proper judicial process.

Sec. 15.  10 V.S.A. § 6246(a) is amended to read:

(a)  Any resident leaseholder who sustains damage or injury as a result of an illegal eviction, as defined in section 6245 of this title, may bring an action for injunctive relief, damages, costs, and reasonable attorney fees.

Sec. 16.  10 V.S.A. § 6247(a) is amended to read:

(a)  A park owner may not retaliate by establishing any of the following:

(1)  Establishing or changing terms of a rental agreement or by bringing.

(2)  Bringing or threatening to bring an action against a resident who has done any of the following:

(1)  has complained (A)  Complained in writing to a governmental agency charged with responsibility for enforcement of a building, housing or health regulation of a violation applicable to the premises materially affecting health and safety;.

(2)  has complained (B)  Complained in writing to the park owner of a violation of this chapter; or.

(3)  has organized (C)  Organized or become a member of a resident’s association or similar organization.

Sec. 17.  10 V.S.A. § 6252(a) is amended to read:

(a)  If the percentage of a proposed lot rent increase is more than one percentage point above the U.S. Consumer Price Index for all Urban Consumers, Housing Component, published by the U.S. Bureau of Labor Statistics in the periodical "Monthly Labor Review and Handbook of Labor Statistics" as established annually by the department, and if, within 15 business days after receipt by the commissioner of the notice required pursuant to subsection 6251(a) of this title, a majority of the affected leaseholders of the occupied leased lots files with the commissioner and the park owner a written petition that includes the name of the person who will act as the representative of the leaseholders and a statement that they dispute the proposed lot rent increase, the commissioner shall send a list of qualified professional mediators compiled by the department in cooperation with park owners and leaseholders to the park owner and to the leaseholders' representative. Within five business days of receipt of the list, the park owner and the leaseholders' representative shall agree on a mediator from the list provided by the commissioner and notify the commissioner of the name, address and telephone number of the mediator selected, accompanied by the mediator's agreement to conduct the mediation.  If the commissioner has not been notified of a mediator as required by this subsection, the commissioner shall appoint a mediator from the department's list.  The mediator may not have any interest, direct or indirect, in the mobile home park at issue and shall disclose to the park owner, the leaseholders and the commissioner, any experience as a mobile home park owner, resident or leaseholder, or any other circumstance that may create a real or perceived conflict of interest.  The department shall pay the reasonable fees for professional mediation services based on a schedule established by rule of the department.

Sec. 18.  10 V.S.A. § 6253(a) is amended to read:

(a)  If the parties are unable to resolve the disputed proposed lot rent increase pursuant to the process provided in section 6252 of this title, an action for abatement of some or all of the proposed lot rent increase based on a claim that the increase is clearly excessive may be initiated by the number a majority of the affected mobile home park leaseholders that corresponds to a majority of the occupied leased lots by filing a complaint in the superior court in the county in which the mobile home park is located within 30 days after the effective date of the proposed lot rent increase.

Sec. 19.  10 V.S.A. § 6254 is amended to read:

§ 6254.  REGISTRATION OF MOBILE HOME PARKS; REPORT

(a)  No later than September 1, 1995, and every three years thereafter on September 1, each year, each mobile home park owner shall register with the department on a form provided by the department.  The form shall include the following information:

* * *

(9)  The services provided to the mobile home park residents leaseholders for payment of lot rent.

(10)  Additional charges for services paid by residents leaseholders in addition to lot rent.

* * *

(c)  The department may charge a mobile home park owner an annual fee of no more than $9.00 for each occupied leased lot in the park on September 1 of each year.  The mobile home park owner may charge this fee to the affected mobile home park residents leaseholders.  The fee shall be submitted to the department with the registration form required in subsection (a) of this section. If a mobile home park owner charges the fee under this subsection to the mobile home park residents, the fee shall not be deemed to be a lot rent increase and shall not be included in any calculation of a lot rent increase pursuant to section 6251 of this title. A mobile home park owner shall not be charged the fee under this subsection for any mobile home park in which all the mobile homes are owned by the mobile home park owner.  The commissioner may enforce filing of the registration form and payment of the fee under subsection 6205(a) of this title.  A special fund shall be created for these fees, to be used by the department of housing and community affairs for its expenses in administering the laws regarding mobile home parks, and to pay any fees required in the mediation process pursuant to section 6252 of this title and for legal representation for leaseholders pursuant to section 6253 of this title.  This special fund shall be managed in accordance with subchapter 5 of chapter 7 of Title 32.

Sec. 20.  10 V.S.A. § 6262(c) is amended to read:

(c)  No rental agreement shall contain any provision by which the resident leaseholder waives the protections of the implied warranty of habitability. Any such waiver shall be deemed contrary to public policy and shall be unenforceable and void.

Sec. 21.  10 V.S.A. § 6263 is amended to read:

§ 6263.  HABITABILITY; TENANT LEASEHOLDER REMEDIES

(a)  If the mobile home park owner fails to comply with the obligation of habitability, the park owner shall be deemed to have notice of the noncompliance if the park owner receives actual notice of the noncompliance from the resident leaseholder, a governmental entity, or a qualified independent inspector.  If the park owner has received notice from any of those sources and fails to make repairs within a reasonable time and the noncompliance materially affects health and safety, the resident leaseholder may pursue any of the following remedies:

* * *

(b)  The remedies under this section are not available to a resident leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the resident leaseholder or of a person on the premises with the resident's leaseholder’s consent.

Sec. 22.  10 V.S.A. § 6264 is amended to read:

§ 6264.  MINOR DEFECTS; REPAIR AND DEDUCT

(a)  If the park owner fails to repair a minor defect or noncompliance with this chapter or noncompliance with a material provision of the rental agreement within 30 days of receipt of written notice, the resident leaseholder may repair the defect or noncompliance and deduct from the rent the actual and reasonable cost, not to exceed one-half of one month's lot rent.  No major work on water, sewer, or electrical systems may be performed under this section. The resident leaseholder shall provide the owner with written notice of the cost of the repair or service when the cost is deducted from the rent.  The resident leaseholder shall be responsible for any damage caused by the repair or attempts to repair.

(b)  The remedies under this section are not available to a resident leaseholder if the noncompliance was caused by the negligent or deliberate act or omission of the resident leaseholder or a person on the premises with the resident's  leaseholder’s consent.

Sec. 23.  10 V.S.A. § 6265 is amended to read:

§ 6265.  CONDEMNATION AND RELOCATION OF RESIDENTS

(a)  The owner of a lot or rented mobile home which that is condemned by a governmental agency due to the wilful failure or refusal of the owner to comply with any obligations imposed by law shall provide for reasonable relocation costs of affected leaseholders and residents, except when the owner can demonstrate that he or she has no financial capacity to comply.  The affected leaseholders and residents shall have the right to recover the reasonable costs of relocation, including court costs and reasonable attorney fees.  The agency of natural resources shall grant to the owner in a timely fashion all permits necessary to correct violations under this subchapter.

(b)  The commissioner may require a park owner who commences a closure of a mobile home park pursuant to section 6237a of this title within one year of receiving from a state or municipal enforcement official a notice of a violation of health, safety, or environmental laws or of section 6262 of this title to pay reasonable relocation costs not to exceed $3,500.00 to each affected leaseholder, except when the park owner can demonstrate that he or she has no financial capacity to comply.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 19, 2008, page 635.)

H. 615

An act relating to juvenile judicial proceedings.

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

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

First:  In Sec. 1, 33 V.S.A. § 5102, in subdivision (5), by adding a second sentence to read:

Any conditions and limitations shall be directed to the individual to whom custody is granted.

and in the same section by adding a new subdivision (28) to read as follows:

(28)  “Youth” shall mean a person who is the subject of a motion for youthful offender status or who has been granted youthful offender status.

and by renumbering the remaining subdivision to be numerically correct.

Second:  In Sec. 1, 33 V.S.A. § 5104(a), by striking out the number “19” and inserting in lieu thereof the number 22

Third:  In Sec. 1, 33 V.S.A. § 5108(b), after the first sentence, by adding a (c) so that the second sentence of subsection (b) becomes new subsection (c); and by relettering the remaining subsections of § 5108 to be alphabetically correct.

Fourth:  In Sec. 1, 33 V.S.A. § 5110(b), after the words “work of the court” by adding the following words , including a foster parent or a representative of a residential program where the child resides,

Fifth:  In Sec. 1, 33 V.S.A. § 5114, in subdivision (a)(4), by striking out the word “affection” and inserting in lieu thereof the words emotional support and in subsection (b) by striking out the word “affection” and inserting in lieu thereof the words emotional support

Sixth:  In Sec. 1, 33 V.S.A. § 5115(e) after the words “pursuant to this section who” by adding the word intentionally

Seventh:  In Sec. 1, 33 V.S.A. § 5117, in subdivision (b)(2) by striking out the words “Records and files” and inserting in lieu thereof the word Files and in subsection (c), after the first sentence by adding the following:  Files inspected under this subsection shall be marked:  UNLAWFUL DISSEMINATION OF THIS INFORMATION IS A CRIME PUNISHABLE BY A FINE OF UP TO $2,000.00.

Eighth:  By adding a new Sec. 2 to read as follows:

Sec. 2.  33 V.S.A. chapter 52 is added to read:

Chapter 52.  DELINQUENCY PROCEEDINGS

Subchapter 1.  Commencement of Proceedings

§ 5201.  Commencement of Delinquency Proceedings  

(a)  Proceedings under this chapter shall be commenced by:

(1)  transfer to the court of a proceeding from another court as provided in section 5203 of this title; or

(2)  the filing of a delinquency petition by a state’s attorney.

(b)  If the proceeding is commenced by transfer from another court, no petition need be filed; however, the state’s  attorney shall provide to the court the name and address of the child’s custodial parent, guardian, or custodian and the name and address of any noncustodial parent if known. 

(c)  Consistent with applicable provisions of Title 4, any proceeding concerning a child who is alleged to have committed an act specified in subsection 5204(a) of this title after attaining the age of 14, but not the age of 18, shall originate in district or superior court, provided that jurisdiction may be transferred in accordance with this chapter.

(d)  If the state requests that custody of the child be transferred to the department, a temporary care hearing shall be held as provided in subchapter 3 of this chapter.   

(e)  A petition may be withdrawn by the state’s attorney at any time prior to the hearing thereon, in which event the child shall be returned to the custodial parent, guardian, or custodian, the proceedings under this chapter terminated, and all files and documents relating thereto sealed under section 5119 of this title.

§ 5202.  Order of adjudication; noncriminal

(a)(1)  An order of the juvenile court in proceedings under this chapter shall not:

(A)  be deemed a conviction of crime;

(B)  impose any civil disabilities sanctions ordinarily resulting from a conviction; or

(C)  operate to disqualify the child in any civil service application or appointment.

(2)  Notwithstanding subdivision (1) of this subsection, an order of delinquency in proceedings transferred under subsection 5203(b) of this title, where the offense charged in the initial criminal proceedings was a violation of those sections of Title 23 specified in subdivision 801(a)(1), shall be an event in addition to those specified therein, enabling the commissioner of motor vehicles to require proof of financial responsibility under chapter 11 of Title 23.

(b)  The disposition of a child and evidence given in a hearing in a juvenile proceeding shall not be admissible as evidence against the child in any case or proceeding in any other court except after a subsequent conviction of a felony in proceedings to determine the sentence.

§ 5203.  Transfer from other courts

(a)  If it appears to a district court that the defendant was under the age of 16 years at the time the offense charged was alleged to have been committed and the offense charged is not one of those specified in subsection 5204(a) of this title, that court shall forthwith transfer the case to the juvenile court under the authority of this chapter.

(b)  If it appears to a district court that the defendant was over the age of 16 years and under the age of 18 years at the time the offense charged was alleged to have been committed, or that the defendant had attained the age of 14 but not the age of 16 at the time an offense specified in subsection 5204(a) of this title was alleged to have been committed, that court may forthwith transfer the proceeding to the juvenile court under the authority of this chapter, and the minor shall thereupon be considered to be subject to this chapter as a child charged with a delinquent act.

(c)  If it appears to the state’s attorney that the defendant was over the age of 16 and under the age of 18 at the time the offense charged was alleged to have been committed and the offense charged is not an offense specified in subsection 5204(a) of this title, the state’s attorney may file charges in a juvenile court or the district court.  If charges in such a matter are filed in district court, the district court may forthwith transfer the proceeding to the juvenile court under the authority of this chapter, and the person shall thereupon be considered to be subject to this chapter as a child charged with a delinquent act.

(d)  Any such transfer shall include a transfer and delivery of a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case.  Upon any such transfer, that court shall order that the defendant be taken forthwith to a place of detention designated by the juvenile court or to that court itself, or shall release the child to the custody of his or her parent or guardian or other person legally responsible for the child, to be brought before the juvenile court at a time designated by that court.  The juvenile court shall then proceed as provided in this chapter as if a petition alleging delinquency had been filed with the court under section 5223 of this title on the effective date of such transfer.

(e)  Motions to transfer a case to family court for youthful offender treatment shall be made under section 5281 of this title.  

(1)  The defendant enters a plea of guilty or nolo contendere to the offense charged pursuant to Rule 11 of the Vermont Rules of Criminal Procedure.

(2)  The defendant is amenable to treatment or rehabilitation as a youthful offender.

(3)  Public safety will be secured by treating the defendant as a youthful offender.

§ 5204.  Transfer from juvenile court 

(a)  After a petition has been filed alleging delinquency, upon motion of the state’s attorney and after hearing, the juvenile court may transfer jurisdiction of the proceeding to district court, if the child had attained the age of 10 but not the age of 14 at the time the act was alleged to have occurred, and if the delinquent act set forth in the petition was any of the following:

(1)  arson causing death as defined in 13 V.S.A. § 501;

(2)  assault and robbery with a dangerous weapon as defined in 13 V.S.A. § 608(b);

(3)  assault and robbery causing bodily injury as defined in 13 V.S.A. § 608(c);

(4)  aggravated assault as defined in 13 V.S.A. § 1024;

(5)  murder as defined in 13 V.S.A. § 2301;

(6)  manslaughter as defined in 13 V.S.A. § 2304;

(7)  kidnapping as defined in 13 V.S.A. § 2405;

(8)  unlawful restraint as defined in 13 V.S.A. § 2406 or 2407;

(9)  maiming as defined in 13 V.S.A. § 2701;

(10)  sexual assault as defined in 13 V.S.A. § 3252(a)(1) or (a)(2);

(11)  aggravated sexual assault as defined in 13 V.S.A. § 3253; or

(12)  burglary into an occupied dwelling as defined in 13 V.S.A. § 1201(c).

(b)  The state’s attorney of the county where the juvenile petition is pending may move in the juvenile court for an order transferring jurisdiction under subsection (a) of this section within ten days of the filing of the petition alleging delinquency.  The filing of the motion to transfer jurisdiction shall automatically stay the time for the hearing provided for in section 5225 of this title, which stay shall remain in effect until such time as the juvenile court may deny the motion to transfer jurisdiction.

(c)  Upon the filing of a motion to transfer jurisdiction under subsection (b) of this section, the juvenile court shall conduct a hearing in accordance with procedures specified in subchapter 2 of this chapter to determine whether:

(1)  there is probable cause to believe that the child committed an act listed in subsection (a) of this section; and

(2)  public safety and the interests of the community would not be served by treatment of the child under the provisions of law relating to juvenile courts and delinquent children.

(d)  In making its determination as required under subsection (c) of this section, the court may consider, among other matters:

(1)  The maturity of the child as determined by consideration of his or her age, home, environment; emotional, psychological and physical maturity; and relationship with and adjustment to school and the community.

(2)  The extent and nature of the child’s prior record of delinquency.

(3)  The nature of past treatment efforts and the nature of the child’s response to them.

(4)  Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.

(5)  The nature of any personal injuries resulting from or intended to be caused by the alleged act.

(6)  The prospects for rehabilitation of the child by use of procedures, services, and facilities available through juvenile proceedings.

(7)  Whether the protection of the community would be better served by transferring jurisdiction from the juvenile court to the district court.

(e)  A transfer under this section shall terminate the jurisdiction of the juvenile court over the child only with respect to those delinquent acts alleged in the petition with respect to which transfer was sought.

(f)  The juvenile court, following completion of the transfer hearing, shall make written findings and, if the court orders transfer of jurisdiction from the juvenile court, shall state the reasons for that order.  If the juvenile court orders transfer of jurisdiction, the child shall be treated as an adult.  The state’s attorney shall commence criminal proceedings as in cases commenced against adults.

(g)  The order granting or denying transfer of jurisdiction shall not constitute a final judgment or order within the meaning of Rules 3 and 4 of the Vermont Rules of Appellate Procedure.

(h)  If a person who has not attained the age of 16 at the time of the alleged offense has been prosecuted as an adult and is not convicted of one of the acts listed in subsection (a) of this section but is convicted only of one or more lesser offenses, jurisdiction shall be transferred to the juvenile court for disposition.  A conviction under this subsection shall be considered an adjudication of delinquency and not a conviction of crime, and the entire matter shall be treated as if it had remained in juvenile court throughout.  In case of an acquittal for a matter specified in this subsection and in case of a transfer to juvenile court under this subsection, the court shall order the sealing of all applicable files and records of the court, and such order shall be carried out as provided in subsection 5119(e) of this title.

(i)  The record of a hearing conducted under subsection (c) of this section and any related files shall be open to inspection only by persons specified in subsections 5117(b) and (c) of this title in accordance with section 5119 of this title and by the attorney for the child.

§ 5205.  Fingerprints; photographs

(a)  Fingerprint files of a child under the jurisdiction of the court shall be kept separate from those of other persons under special security measures limited to inspection by law enforcement officers only on a need-to-know basis unless otherwise authorized by the court in individual cases.

(b)  Copies of fingerprints shall be maintained on a local basis only and not sent to central state or federal depositories except in national security cases.

(c)  Fingerprints of persons under the jurisdiction of the court shall be removed and destroyed when:

(1)  the petition alleging delinquency with respect to which such fingerprints were taken does not result in an adjudication of delinquency; or

(2)  jurisdiction of the court is terminated, provided that there has been no record of a criminal offense by the child after reaching 16 years of age.

(d)  If latent prints are found at the scene of an offense and there is reason to believe that a particular child was involved, the child may be fingerprinted for purposes of immediate comparison, and, if the result is negative, the fingerprint card shall be immediately destroyed.

(e)  No photograph shall be taken of any child when taken into custody without the consent of the judge unless the case is transferred for criminal proceeding.

(f)  A person who violates this section shall be imprisoned not more than six months or fined not more than $500.00, or both.

Subchapter 2.  Petition, Merits, and Disposition

§ 5221.  Citation and Notice to Appear at Preliminary Hearing 

(a)  Citation.  If an officer has probable cause to believe that a child has committed or is committing a delinquent act and the circumstances do not warrant taking the child into custody pursuant to subchapter 3 of this chapter, the officer may issue a citation to appear before a judicial officer in lieu of arrest.

(b)  Appearance in court.  A child who receives a citation described in this section shall appear at the court designated in the citation at the time and date specified in the citation unless otherwise notified by the court.

(c)  Notice to parent.  The officer who issues the citation shall also issue or cause to be issued a notice to the child’s parent, guardian, or custodian.  The notice shall indicate the date, time, and place of the preliminary hearing and shall direct the responsible adult to appear at the hearing with the child.

(d)  Form.  The citation to appear shall be dated and signed by the issuing officer and shall direct the child to appear before a judicial officer at a stated time and place.  The citation shall state the name of the child to whom it is addressed, the delinquent act that the child is alleged to have committed, and a notice that the child is entitled to be represented by an attorney at the hearing and that an attorney will be appointed for the child if the parent or guardian is indigent and cannot afford an attorney.

(e)  Filing of citation.  The issuing officer shall sign the citation and file the citation and an affidavit as to probable cause with the state’s attorney.

§ 5222.  Petition; contents

(a)  The petition shall be supported by an affidavit as to probable cause.   The petition shall contain the following:

(1)  A concise statement of the facts which support the conclusion that the child has committed a delinquent act, together with a statement that it is in the best interests of the child that the proceedings be brought.

(2)  The name, date of birth, telephone number, and residence address, if known, of the child and the custodial and noncustodial parents or the guardian or custodian of the child, if other than parent.   If a parent is a participant in the Safe At Home Program pursuant to 15 V.S.A. § 1152, the petition shall so specify.

(b)  If a temporary care order has been issued or the state is requesting that custody be transferred to the commissioner, the petition shall contain jurisdictional information as required by the Uniform Child Custody Jurisdiction Act, 15 V.S.A. § 1032 et seq.

(c)  A petition alleging a delinquent act may not be amended to allege that a child is in need of care or supervision, and a child who has been adjudged a delinquent child as a result of a delinquency petition may not be subsequently adjudged a child in need of care or supervision, unless a separate petition alleging that the child is in need of care or supervision is filed.

§ 5223.  Filing of Petition 

(a)  When notice to the child is provided by citation, the state’s attorney shall file the petition and supporting affidavit at least ten days prior to the date for the preliminary hearing specified in the citation.

(b)  The court shall send or deliver a copy of the petition and affidavit to all persons required to receive notice as soon as possible after the petition is filed and at least five days prior to the date set for the preliminary hearing..

§ 5224.   Failure to Appear at Preliminary Hearing  

If a child or parent fails to appear at the preliminary hearing as directed by a citation, the court may issue a summons to appear, an order to have the child brought to court, or a warrant as provided in section 5108 of this title.

§ 5225.  Preliminary Hearing  

(a)  A preliminary hearing shall be held at the time and date specified on the citation or as otherwise ordered by the court.  If a child is taken into custody prior to the preliminary hearing, the preliminary hearing shall be at the time of the temporary care hearing. 

(b)  Counsel for the child shall be assigned prior to the preliminary hearing. 

(c)  At the preliminary hearing, the court shall appoint a guardian ad litem for the child.  The guardian ad litem may be the child’s parent.  On its own motion or motion by the child’s attorney, the court may appoint a guardian ad litem other than a parent. 

(d)  At the preliminary hearing, a denial shall be entered to the allegations of the petition, unless the juvenile, after adequate consultation with the guardian ad litem and counsel, enters an admission.

(e)  The court may order the child to abide by conditions of release pending a merits or disposition hearing.

§ 5226.  Notification of conditions of release to victim in delinquency proceedings

A victim in a delinquency proceeding based on a listed crime shall be notified promptly by the prosecutor’s office when conditions of release are initially ordered or modified by the court and of the identity of the child when the conditions of release relate to the victim or a member of the victim’s family or current household.  A victim in a delinquency proceeding based on an act that is not a listed crime shall be notified promptly by the court when conditions of release are initially ordered or modified by the court and shall be notified promptly of the identity of the child when the conditions of release relate to the victim or a member of the victim’s family or current household.  Victims are entitled only to information contained in the conditions of release that pertain to the victim or a member of the victim’s family or current household.

§ 5227.  Timelines for pretrial and merits hearing  

(a)  Pre-trial hearing.  At the preliminary hearing, the court shall set a date for a pretrial hearing on the petition.  The pretrial hearing shall be held within 15 days of the preliminary hearing.  In the event there is no admission or dismissal at the pretrial hearing, the court shall set the matter for a hearing to adjudicate the merits of the petition.

(b)  Merits hearing.  Except for good cause shown, a merits hearing shall be held and merits adjudicated no later than 60 days from the date of the preliminary hearing.

§ 5228.  Constitutional Protections for a Child in Delinquency Proceedings

A child charged with a delinquent act need not be a witness against, nor otherwise incriminate, himself or herself.  Any extrajudicial statement, if constitutionally inadmissible in a criminal proceeding, shall not be used against the child.  Evidence illegally seized or obtained shall not be used over objection to establish the charge against the child.  A confession out of court is insufficient to support an adjudication of delinquency unless corroborated in whole or in part by other substantial evidence.

§ 5229.  Merits Adjudication  

(a)  The parties at a merits hearing in a delinquency proceeding shall be limited to the state’s attorney and the child who is the subject of the petition.  A merits adjudication hearing shall not proceed forward unless the child who is the subject of the delinquency petition is present in court.  

(b)  The state shall have the burden of establishing beyond a reasonable doubt that the child has committed a delinquent act. 

(c)  If the child who is the subject of the delinquency petition enters an admission to the petition, the court shall not accept the admission without first addressing the child personally in open court and determining that:

(1)  the plea is voluntary;

(2)  the child understands the nature of the delinquent act charged, the right to contest the charge, and the rights which will be waived if the admission is accepted by the court; and

(3)  there is a factual basis for the delinquent act charged in the petition.

(d)  A merits hearing shall be conducted in accordance with the Vermont Rules of Evidence. 

(e)  If the merits are contested, the court, after hearing the evidence, shall make its findings on the record. 

(f)  If the court finds that the allegations made in the petition have not been established beyond a reasonable doubt, the court shall dismiss the petition and vacate any orders transferring custody to the state or other person or any conditional custody orders.

(g)  If, based on the child’s admission or the evidence presented, the court finds beyond a reasonable doubt that the child has committed a delinquent act, the court shall order the department to prepare a disposition case plan within 28 days of the merits adjudication and shall set the matter for a disposition hearing.  In no event, shall a disposition hearing be held later than 35 days after a finding that a child is delinquent.

(h)  The court may proceed directly to disposition providing that the child, the custodial parent, the state’s attorney, and the department agree.

§ 5230.  Disposition Case Plan

(a)  Filing of case plan.  The department shall file a disposition case plan no later than 28 days from the date of the finding by the court that a child is delinquent.  The disposition case plan shall not be used or referred to as evidence prior to a finding that a child is delinquent.

(b)  Content of case plan.  A disposition case plan shall include, as appropriate:

(1)  An assessment of the child’s medical, psychological, social, educational, and vocational needs.

(2)  An assessment of the impact of the delinquent act on the victim and the community, including, whenever possible, a statement from the victim.

(3)  A description of the child’s home, school, community, and current living situation.

(4)  An assessment of the child’s and family’s strengths and risk factors.

(5)  Proposed conditions of probation which address the identified risks and provide for, to the extent possible, repair of the harm to victims and the community.  Proposed conditions may include a recommendation as to the term of probation. 

(6)  The plan of services shall describe the responsibilities of the child, the parents, the department, other family members, and treatment providers, including a description of the services required to achieve successful completion of the goals of probation and, if the child has been placed in the custody of the department, the permanency goal.

(c)  Case plan for child in custody.  If a child is in the custody of the commissioner at the time of disposition or if a transfer of custody is requested, the case plan shall include the following additional information:

(1)  A permanency goal if the child is in custody.  The long-term goal for a child found to be delinquent and placed in the custody of the department is a safe and permanent home.  A disposition case plan shall include a permanency goal and an estimated date for achieving the permanency goal.  The plan shall specify whether permanency will be achieved through reunification with a parent, custodian, or guardian; adoption; permanent guardianship; or other permanent placement.  In addition to a primary permanency goal, the plan may identify a concurrent permanency goal.

(2)  A recommendation with respect to custody for the child and a recommendation for parent-child contact if appropriate.

(3)  A request for child support if the child has been placed in the custody of the department or the department recommends a transfer of custody.

§ 5231.  Disposition Hearing

(a)  Timeline.  A disposition hearing shall be held no later than 35 days after a finding that a child is delinquent.

(b)  Hearing procedure.  If disposition is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.   If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.

(c)  Standard of proof.  If the court terminates the parental rights of one or both parents, the standard of proof on the issue of such termination shall be clear and convincing.  On all other issues, the standard of proof shall be a preponderance of the evidence. 

(d)  Termination of parental rights.  If the commissioner or the attorney for the child seeks an order terminating parental rights of one or both parents and transfer of custody to the commissioner without limitation as to adoption, the court shall consider the best interests of the child in accordance with section 5114 of this title.

(e)  Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.  The court shall make an appropriate order for the temporary care of the child pending a final disposition order.  The court shall give scheduling priority to cases in which the child has been removed from the home.

§ 5232.  Disposition Order 

(a)  If a child is found to be a delinquent child, the court shall make such orders at disposition as may provide for:

(1)  the child’s supervision, care, and rehabilitation;

(2)  the protection of the community;

(3)  accountability to victims and the community for offenses committed; and

(4)  the development of competencies to enable the child to become a responsible and productive member of the community. 

(b)  In carrying out the purposes outlined in subsection (a) of this section, the court may:

(1)  Place the child on probation subject to the supervision of the commissioner, upon such conditions as the court may prescribe.  The length of probation shall be as prescribed by the court or until further order of the court.

(2)  Order custody of the child be given to the custodial parent, guardian, or custodian.  For a fixed period of time following disposition, the court may order that custody be subject to such conditions and limitations as the court may deem necessary and sufficient to provide for the safety of the child and the community.   Conditions may include protective supervision for up to one year following the disposition order unless further extended by court order.    The court shall schedule regular review hearings to determine whether the conditions continue to be necessary.

(3)  Transfer custody of the child to a noncustodial parent, relative, or person with a significant connection to the child.

(4)  Transfer custody of the child to the commissioner.

(5)  Terminate parental rights and transfer custody and guardianship to the department without limitation as to adoption.

(c)  If the court orders the transfer of custody of the child pursuant to subdivisions (b)(4) and (5) of this section, the court shall establish a permanency goal for the child and adopt a case plan prepared by the department designed to achieve the permanency goal.  If the court determines that the plan proposed by the department does not adequately support the permanency goal for the child, the court may reject the plan proposed by the department and order the department to prepare and submit a revised plan for court approval.

§ 5233.  Victim’s statement at disposition proceeding; victim notification

(a)  Upon the filing of a delinquency petition, the court shall notify a victim of his or her rights as provided by law and his or her responsibilities regarding the confidential nature of juvenile proceedings.

(b)  A victim of a delinquent act has the right in a disposition proceeding to file with the court a written or recorded statement of the impact of the delinquent act on the victim and the need for restitution.  A victim of a delinquent act involving a listed crime also has the right to be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution.  A victim of a delinquent act that is not a listed crime may be present at the disposition hearing for the sole purpose of presenting to the court the impact of the delinquent act on the victim and the need for restitution if the court finds that the victim’s presence at the disposition hearing is in the best interests of the child and the victim.  The court shall take a victim’s views into consideration in the court’s disposition order.  A victim shall not be allowed to be personally present at any portion of the disposition hearing except to present the impact statement unless authorized by the court.

(c)  After an adjudication of delinquency has been made involving an act that is not a listed crime, the court shall inform the victim of the disposition of the case.  Upon request of the victim, the court may release to the victim the identity of the child if the court finds that release of the child’s identity to the victim is in the best interests of both the child and the victim.

(d)  After an adjudication of delinquency has been made involving an act that is a listed crime, the state’s attorney’s office shall inform the victim of the disposition in the case.  Upon request of the victim, the state’s attorney’s  office shall release to the victim the identity of the child. 

(e)  For the purposes of this section, disposition in the case shall include whether the child was placed on probation and information regarding conditions of probation relevant to the victim.

§ 5234.  Rights of victims in delinquency proceedings involving a  listed crime

The victim in a delinquency proceeding involving a listed crime shall have the following rights:

(1)  To be notified by the prosecutor’s office in a timely manner when a predispositional or dispositional court proceeding is scheduled to take place and when a court proceeding of which he or she has been notified will not take place as scheduled.

(2)  To be notified by the prosecutor’s office as to whether delinquency has been found and disposition has occurred, including any conditions or restitution relevant to the victim.

(3)  To present a victim’s impact statement at the disposition hearing in accordance with subsection 5233(b) of this title and to be notified as to the disposition pursuant to subsection 5233(d) of this title.

(4)  Upon request, to be notified by the agency having custody of the delinquent child before he or she is discharged from a secure or staff-secured residential facility. The name of the facility shall not be disclosed.  An agency’s inability to give notification shall not preclude the release.  However, in such an event, the agency shall take reasonable steps to give notification of the release as soon thereafter as practicable.  Notification efforts shall be deemed reasonable if the agency attempts to contact the victim at the address or telephone number provided to the agency in the request for notification.

(5)  To obtain the name of the child in accordance with sections 5226 and 5233 of this title.

(6)  To be notified by the court of the victim’s rights under this section.

§ 5235.  JUVENILE RESTITUTION

(a)  Restitution shall be considered in every case in which a victim of a delinquent act has suffered a material loss.  For purposes of this section, “material loss” means uninsured property loss, uninsured out-of-pocket monetary loss, uninsured lost wages, and uninsured medical expenses.

(b)  When ordered, restitution may include:

(1)  return of property wrongfully taken from the victim;

(2)  cash, credit card, or installment payments paid to the restitution unit; and

(3)  payments in kind, if acceptable to the victim.

(c)  In awarding restitution, the court shall make findings in accordance with subdivision 5262(b)(2) of this title.

(d)  If restitution is ordered, the victim shall be entitled to payment from the crime victims’ restitution fund, pursuant to 13 V.S.A. § 5363.  An order of restitution shall establish the amount of material loss incurred by the victim, which shall be the restitution judgment order.  Every order of restitution shall include:

(1)  the juvenile’s name and address;

(2)  the name of the victim;

(3)  the amount ordered; and

(4)  any co-defendant names if applicable.

(e)  In the event the juvenile is unable to pay the restitution judgment order at the time of disposition, the court shall fix the amount thereof, which shall not exceed an amount the juvenile can or will be able to pay, and shall fix the manner of performance or refer to a restorative justice program that will address how loss resulting from the delinquency will be addressed, subject to modification under section 5264 of this title.

(f)  The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim in accordance with 13 V.S.A. § 5363.

(g)  To the extent that the victims’ compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of Title 13, restitution, if imposed, shall be paid to the restitution unit, which shall make payment to the crime victims’ compensation fund.

(h)  When restitution is requested but not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(i)  Any information concerning restitution payments made by a juvenile shall be available to the Vermont restitution unit for purposes of determining restitution obligations of adult and juvenile co-defendants.

(j)  In accordance with 13 V.S.A. § 5363, the restitution unit is authorized to make payments to victims of delinquent acts where restitution was ordered by a court prior to July 1, 2008, and the order was first entered on or after July 1, 2004.

Subchapter 3.  Children in Custody

§ 5251.  Taking into custody

A child may be taken into custody by an officer:

(1)  pursuant to the laws of arrest of this state;

(2)  pursuant to an order of the court under the provisions of this chapter and chapters 52 and 53 of this title; or

(3)  when the officer has reasonable grounds to believe that the child has committed a delinquent act; and that the child’s immediate welfare or the protection of the community, or both, require the child’s removal from the child’s current home.   

§ 5252.  Request for Emergency Care Order 

(a)  If an officer takes a child who is alleged to be delinquent into custody, the officer shall immediately notify the child’s parents, guardian, or custodian and release the child to the care of child’s parent, guardian, or custodian unless the officer determines that the child’s immediate welfare or the protection of the community, or both, require the child’s continued removal from the home.

(b)  If the officer determines that the child’s immediate welfare, the protection of the community, or both, require the child’s continued removal from the home, the officer shall:

(1)  Take the child into custody pending either issuance of an emergency care order or direction from the state’s attorney to release the child.

(2)  Prepare an affidavit in support of a request for an emergency care order.  The affidavit shall include the reasons for taking the child into custody and, if known, placements with which the child is familiar, the names, addresses, and phone numbers of the child’s parents, guardians, or custodians, and the name, address, and phone number of any relative who has indicated an interest in taking temporary custody of the child.  The officer shall contact the department, and, if the department has knowledge of the reasons for the removal of the child, the department may prepare an affidavit as a supplement to the affidavit of the law enforcement officer.

(3)  Provide the affidavit to the state’s attorney. 

(c)  If the child is taken into custody during regular court hours, the state’s attorney shall immediately file a request for an emergency care order accompanied by the supporting affidavit or direct the immediate return of the child to the child’s parent, guardian, or custodian.    If the child is taken into custody after regular court hours or on a weekend or holiday, the state’s attorney or officer shall contact a judge to request an emergency care order or return the child to the child’s parent, guardian, or custodian.  If an order is granted, the state’s attorney shall file the supporting affidavit with the family court on the next day that the court is open.  

(d)  If the judge denies a request for an emergency care order, the state’s attorney shall direct the immediate return of the child to the child’s custodial parent, guardian, or custodian.    

§ 5253.  Emergency Care Order; CONDITIONAL CUSTODY ORDER

(a)(1)  Transfer of temporary custody.  The court may issue an emergency care order transferring temporary custody of the child to the department pending a temporary care hearing if the court determines that:

(A)  there is probable cause that the child has committed a delinquent act; and

(B)  continued residence in the home is contrary to the child’s welfare because:

(i)  the child cannot be controlled at home and is at risk of harm to self or others; or

(ii)  continued residence in the home will not safeguard the

well-being of the child and the safety of the community because of the serious and dangerous nature of the act the juvenile is alleged to have committed. 

(2)  The determination may be made without hearing or notice to the custodial parent, guardian, or custodian, provided that it is reasonably supported by the affidavit prepared in accordance with subsection 5152(b) of this title. 

(b)  Contents of emergency care order.  The emergency care order shall contain:  

(1)  A written finding that the child’s continued residence in the home is contrary to the child’s welfare and the factual allegations that support that finding.

(2)  The date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title.

(3)  Notice of a parent’s right to counsel at the temporary care hearing.

(c)  Conditional custody order.  If the court determines that the child may safely remain in the custody of the custodial parent, guardian, or custodian, the court may deny the request for an emergency care order and issue an emergency conditional custody order.  The order shall contain:

(1)  Conditions and limitations necessary to protect the child, the community, or both.

(2)  The date, hour, and place of the temporary care hearing to be held pursuant to section 5255 of this title.

(3)  Notice of a parent’s right to counsel at the hearing. 

§ 5254.  Notice of Emergency Care Order and Temporary Care Hearing

(a)  Notice to custodial parent.  An officer shall deliver a copy of the emergency care order or conditional custody order to the parent, guardian, or custodian of the child.  If delivery cannot be made in a timely manner, the officer shall otherwise notify the parent, guardian or custodian or cause them to be notified of the order, the date, time, and place of the temporary care hearing, and the parent’s right to counsel.  If the custodial parent, guardian, or custodian cannot be located, the officer shall so certify to the court in an affidavit describing the efforts made to locate the parent, guardian, or custodian.

(b)  Notice to noncustodial parent.  The department shall make reasonable efforts to locate any noncustodial parent and provide the noncustodial parent with notice of the date, hour, and place of the temporary care hearing and of the right to counsel.

(c)  Notice to other parties.  The court shall notify the following persons of the date and time of the temporary care hearing:

(1)  The state’s attorney.

(2)  The department.

(3)  An attorney to represent the child.

(4)  A guardian ad litem for the child.

(5)  An attorney to represent the custodial parent. 

§ 5255.  Temporary Care Hearing     

(a)  A temporary care hearing shall be held within 72 hours of the issuance of an emergency care order or conditional custody order under section 5253 of this title.  State holidays shall be excluded from the computation of 72 hours.  If the custodial parent, guardian, or custodian has not been notified in accordance with section 5254 of this title and does not appear or waive appearance at the temporary care hearing and files thereafter with the court an affidavit so showing, the court shall hold another temporary care hearing within one business day of the filing of the affidavit as if no temporary care hearing had theretofore been held.

(b)  If the state’s attorney is seeking a temporary care order, the state’s attorney shall file a petition on or before the temporary care hearing.  If the state’s attorney elects not to file a petition, the state’s attorney shall so notify the court and the court shall vacate any emergency orders.

(c)  The following persons shall be present at the temporary care hearing:

(1)  The child.

(2)  The child’s custodial parent, guardian, or custodian, unless he or she cannot be located or fails to appear in response to notice.

(3)  The child’s guardian ad litem.

(4)  An attorney for the child.

(5)  An attorney for the custodial parent, if requested.

(6)  A representative of the department.

(7)  The state’s attorney.

(d)   A noncustodial parent shall have the right to be present at the hearing.  The hearing shall not be delayed by reason of the inability of the department to locate the noncustodial parent. 

(e)  The department shall provide the following information to the court at the hearing:

(1)  Any reasons for the child’s removal which are not set forth in the affidavit required pursuant to section 5252 of this title.

(2)  Services, if any, provided to the child and the family in an effort to prevent removal.

(3)  The need, if any, for continued custody of the child with the department pending a hearing to adjudicate the merits of the petition.

(4)  Services which could facilitate the return of the child to the custody of the parent or guardian.

(5)(A)  The identity of a noncustodial parent and any relatives known to the department who may be suitable, willing, and available to assume temporary custody of the child.

(B)  With respect to any person whom the department identifies pursuant to this subdivision, the department shall conduct an assessment of the suitability of the person to care for the child.  The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home.  The court may continue the hearing if necessary to permit the department to complete the assessment.

(C)  The department shall request from the Vermont criminal information center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision.  The request shall be in writing and shall be accompanied by a release signed by the person.  The department through the Vermont criminal information center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed.  If no disqualifying record is identified at the state level, the department through the Vermont criminal information center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history.  The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center.  The Vermont criminal information center shall send the department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the department that no record exists.  The department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont criminal information center.  Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

(6)  Additional information as required by the Uniform Child Custody Jurisdiction Act pursuant to 15 V.S.A. § 1037 and the Indian Child Welfare Act pursuant to 25 U.S.C. Section 1901 et seq. 

(f)  All parties shall have the right to present evidence on their own behalf and examine witnesses.  Hearsay, to the extent it is deemed relevant and reliable by the court, shall be admissible.  The court may in its discretion limit testimony and evidence to only that which goes to the issues of removal, custody, and the child’s welfare. 

(g)  The temporary care hearing shall also be a preliminary hearing on the petition.

§ 5256.  Temporary Care Order

(a)  The court shall order that custody be returned to the child’s parent, guardian, or custodian unless the court finds by a preponderance of the evidence that return to the home would be contrary to the welfare of the child because of any of the following:

(1)  The child cannot be controlled at home and is at risk of harm to self or others.

(2)  Continued residence in the home will not protect the community because of the serious and dangerous nature of the act the child is alleged to have committed.

(3)  The child’s welfare is otherwise endangered.

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including:

(1)  A conditional custody order returning custody of the child to the parent, guardian, or custodian, subject to such conditions and limitation as the court may deem necessary and sufficient to protect the child and the community.

(2)  An order transferring temporary custody of the child to a noncustodial parent or a relative.

(3)  A temporary care order transferring temporary custody of the minor child to the commissioner.

(c)(1)  If the court transfers custody of the child to the commissioner, the court shall issue a written temporary care order.  The order shall include:

(A)  a finding that remaining in the home is contrary to the child’s welfare and the facts upon which that finding is based; and

(B)  a finding as to whether reasonable efforts were made to prevent unnecessary removal of the child from the home.

(2)  If at the conclusion of the hearing the court lacks sufficient evidence to make findings on whether reasonable efforts were made to prevent the removal of the child from the home, that determination shall be made at the next scheduled hearing in the case but, in any event, no later than 60 days after the issuance of the initial order removing a child from the home.

(3)  The order may include such other provisions as may be necessary for the protection and welfare of the child, including:

(A)  Conditions of release.

(B)  An order for parent-child contact under such terms and conditions as are necessary for the protection of the child.

(C)  An order that the department provide the child with services.

(D)  An order that the department refer a parent to services.

(E)  A genetic testing order if parentage of the child is at issue.

(F)  An order that the department make diligent efforts to locate the noncustodial parent.

(G)  An order that the custodial parent provide the department with names of all potential noncustodial parents and relatives of the child.

§ 5257.  Filing of Initial Case Plan

(a)  If a temporary care order is issued granting custody to the commissioner, the department shall prepare and file with the court an initial case plan for the child and the family within 60 days of the child’s removal from the home.  The department shall provide a copy of the case plan to the parties, their attorneys, and the guardian ad litem.

(b)  The initial case plan shall not be used or referred to as evidence prior to a finding that the child has committed a delinquent act.

§ 5258.  PostDisposition Review and Permanency Review for Delinquents in Custody

Whenever custody of a delinquent child is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title.  At the permanency review, the court shall consider only the permanency goal and whether the department should continue to maintain custody of the child and shall not consider the appropriateness of the particular placement chosen by the department.

Subchapter 4.  Probation

§ 5261.  Powers and responsibilities of the commissioner regarding juvenile probation

The commissioner shall be charged with the following powers and responsibilities regarding the administration of juvenile probation:

(1)  To maintain supervision of juveniles placed on probation.

(2)  To supervise the administration of juvenile probation services, including the authority to enter into contracts with community-based agencies to provide probation services which may include restitution and community service programs and to establish policies and standards and adopt rules regarding juvenile probation investigation, supervision, casework and caseloads, record-keeping, and the qualification of juvenile probation officers.

(3)  To prescribe rules, consistent with any orders of the court, governing the conduct of juveniles on probation.

§ 5262.  Conditions of probation

(a)  The conditions of probation shall be such as the court in its discretion deems necessary to ensure to the greatest extent reasonably possible that the juvenile will be provided a program of treatment, training, and rehabilitation consistent with the protection of the public interest. The court shall provide as an explicit condition of every juvenile probation certificate that if the juvenile is adjudicated a delinquent or is convicted of an adult crime while on probation, then the court may find the juvenile in violation of the conditions of probation.

(b)  The court may, as a condition of probation, require that the juvenile:

(1)  Work faithfully for a prescribed number of hours at a community service activity acceptable to the court or, if so ordered by the court, at a community service activity acceptable to a probation officer.

(2)  Make restitution or reparation to the victim of the juvenile’s conduct for the damage or injury which was sustained. When restitution or reparation is a condition of probation, the court shall fix the amount thereof.  The court shall further determine the amount the juvenile can or will be able to pay and fix the manner of performance.  In the alternative, the court may refer the determination of the amount, the ability to pay, and the manner of performance to a restorative justice panel.

(3)  Participate in programs designed to develop competencies to enable the child to become a responsible and productive member of the community. 

(4)  Refrain from purchasing or possessing a firearm or ammunition, any destructive device, or any dangerous weapon unless granted written permission by the court or juvenile probation officer.

(5)  Report to a juvenile probation officer at reasonable times as directed by the court or the probation officer.

(6)  Permit the juvenile probation officer to visit the juvenile at reasonable times at home or elsewhere.

(7)  Remain within the jurisdiction of the court unless granted permission to leave by the court or the probation officer.

(8)  Answer all reasonable inquiries by the juvenile probation officer and promptly notify the probation officer of any change in address or employment.

(9)  Satisfy any other conditions reasonably related to the juvenile’s rehabilitation.

(10)  Reside at home or other location specified by the court.

(11)  Attend or reside at an educational or vocational facility or a facility established for the instruction, recreation, or residence of persons on probation.

(12)  Work faithfully at suitable employment or faithfully pursue a course of study or of vocational training that will equip the juvenile for suitable employment.

(13)  Undergo available medical treatment, participate in psychiatric treatment or mental health counseling, and participate in alcohol or drug abuse assessment or treatment on an outpatient or inpatient basis.

§ 5263.  Juvenile probation certificate 

(a)  When a juvenile is placed on probation, the court shall issue a written juvenile probation certificate setting forth:

(1)  the name of the juvenile;

(2)  the nature of the delinquent act committed by the juvenile;

(3)  the date and place of the juvenile delinquency hearing;

(4)  the order of the court placing the juvenile on probation; and

(5)  the conditions of the juvenile’s probation.

(b)  The juvenile probation certificate shall be furnished to and signed by the juvenile and the parents or the guardian or custodian of the child, if other than parent.  It shall be fully explained to them, and they shall be informed about the consequences of violating the conditions of probation, including the possibility of revocation of probation.  A copy of the juvenile probation certificate shall also be furnished to the commissioner.  The probation certificate is not invalidated if it is not signed as required by this subsection.

(c)  The signature of a parent, guardian, or custodian on a probation certificate shall constitute verification that the parent, guardian, or custodian understands the terms of juvenile probation and agrees to facilitate and support the child’s compliance with such terms and to attend treatment programs with the child as recommended by the treatment provider.

(d)  The juvenile probation certificate shall be full authority for the exercise by the commissioner of all the rights and powers over and in relation to the juvenile prescribed by law and by the order of the court.

§ 5264.  Modification of conditions  

(a)  During the period of probation, the court, on application of a juvenile probation officer, the state’s attorney, the juvenile, or on its own motion may modify the requirements imposed upon the juvenile or add further requirements authorized by section 5262 of this title.  A juvenile may request modification of a restitution issue determined by a restorative panel.

(b)  Whenever the court proposes any modification of the conditions of probation, the juvenile probationer shall have a reasonable opportunity to contest the modification prior to its imposition.

§ 5265.  Violation of conditions of probation 

(a)  If the juvenile fails to comply with conditions of probation, the state’s attorney, a juvenile probation officer, or the court on its own motion may initiate a proceeding to establish that the juvenile is in violation of probation conditions.

(b)  A juvenile probationer shall not be found in violation of conditions of probation unless the juvenile probationer is found to have violated a condition of probation, is again adjudicated a delinquent, or is convicted of a crime.

§ 5266.  Summons, apprehension, and detention of juvenile probationer

At any time before the discharge of a juvenile probationer or the termination of the period of probation:

(1)  The court may summon the juvenile to appear before it or may issue an order for the juvenile’s detention.

(2)  Any juvenile probation officer may detain a juvenile probationer or may authorize any officer to do so by giving the officer a written statement setting forth that the juvenile has, in the judgment of the juvenile probation officer, violated a condition of probation.  The written statement delivered with the juvenile by the detaining officer to the supervisor of the juvenile facility or residential program to which the juvenile is brought for detention shall be sufficient authority for detaining the juvenile.

(3)  Any juvenile probationer apprehended or detained in accordance with the provisions of this chapter shall have no right of action against the juvenile probation officer or any other person because of such apprehension or detention.

§ 5267.  Detention hearing 

(a)  Whenever a juvenile probationer is detained on the grounds that the juvenile has violated a condition of probation, the juvenile shall be given a hearing before a judicial officer prior to the close of business on the next court business day in order to determine whether there is probable cause to hold the juvenile for a violation hearing.  The juvenile and the adult who signed the probation certificate shall be given:

(1)  notice of the detention hearing and its purpose and the allegations of violations of conditions of probation; and

(2)  notice of the juvenile’s right to be represented by counsel and right to be assigned counsel if the juvenile is unable to obtain counsel.

(b)  At the detention hearing the juvenile shall be given:

(1)  an opportunity to appear at the hearing and present evidence on his or her own behalf; and

(2)  upon request, the opportunity to question witnesses against him or her unless, for good cause, the judicial officer decides that justice does not require the appearance of the witness.

(c)  If probable cause is found to exist, the juvenile shall be held for a hearing to determine if the juvenile violated the conditions of probation.  If probable cause is not found to exist, the proceedings shall be dismissed.

(d)  A juvenile held in detention pursuant to a request to find the juvenile in violation of probation may be released by a judicial officer pending hearing or appeal.

§ 5268.  Notice; violation hearing 

(a)  The court shall not find a juvenile in violation of the juvenile’s probation without a hearing, which shall be held promptly in the court in which the probation was imposed.  If the juvenile is held in detention prior to the hearing, the hearing shall take place at the earliest possible time.  Prior to the hearing, the juvenile and the adult who signed the probation certificate shall receive a written notice of the hearing at his or her last known address stating that the juvenile has allegedly violated one or more conditions of probation and which condition or conditions have been violated.  At the hearing, the juvenile shall have:

(1)  The right to legal counsel if requested by the juvenile probationer or the adult who signed the probation certificate to be assigned by the court in the same manner as in criminal cases.

(2)  The right to disclosure of evidence against the juvenile.

(3)  The opportunity to appear and to present evidence on the juvenile’s behalf.

(4)  The opportunity to question witnesses against the juvenile.

(b)  The state’s attorney having jurisdiction or the commissioner shall establish the alleged violation by a preponderance of the evidence, if the juvenile probationer contests the allegation.

§ 5269.  Disposition alternatives upon violation of conditions of probation 

If a violation of conditions of probation is established, the court may, in its discretion, modify the conditions of probation or order any of the disposition alternatives provided for in section 5232 of this title.

§ 5270.  Final judgment 

An order placing a juvenile on probation and a finding that a juvenile violated a condition of probation shall constitute a final judgment.

§ 5271.  Discharge from probation 

(a)  The court placing a juvenile on probation may terminate probation and discharge the juvenile at any time.

(b)  Upon the termination of the period of probation, the juvenile probationer shall be discharged from probation.

§ 5272.  Juvenile justice unit; juvenile justice director 

(a)  A juvenile justice unit is created in the family services division of the department.  The unit shall be headed by a juvenile justice director.

(b)  The juvenile justice director shall have the responsibility and authority to monitor and coordinate all state and participating regional and local programs that deal with juvenile justice issues, including prevention, education, enforcement, adjudication, and rehabilitation.

(c)  The juvenile justice director shall ensure that the following occur:

(1)  Development of a comprehensive plan for a coordinated and sustained statewide program to reduce the number of juvenile offenders, involving state, regional, and local officials in the areas of health, education, prevention, law enforcement, corrections, teen activities, and community wellness.

(2)  Cooperation among state, regional, and local officials, court personnel, service providers, and law enforcement agencies in the formulation and execution of a coordinated statewide juvenile justice program.

(3)  Cooperation among appropriate departments, including the department and the departments of education, corrections, employment and training, developmental and mental health services, and public safety, and the office of alcohol and drug abuse programs.

(4)  A study of issues relating to juvenile justice and development of recommendations regarding changes in law and rules, as deemed advisable.

(5)  Compilation of data on issues relating to juvenile justice and analysis, study, and organization of such data for use by educators, researchers, policy advocates, administrators, legislators, and the governor.

Subchapter 5.  Youthful Offenders

§ 5281.  MOTION IN DISTRICT COURT

(a)  A motion may be filed in the district court requesting that a defendant under 18 years of age in a criminal proceeding who had attained the age of 10 but not the age of 18 at the time the offense is alleged to have been committed be treated as a youthful offender.  The motion may be filed by the state’s attorney, the defendant, or the court on its own motion.

(b)  Upon the filing of a motion under this section and the entering of a conditional plea of guilty by the youth, the district court shall enter an order deferring the sentence and transferring the case to the family court for a hearing on the motion.  Copies of all records relating to the case shall be forwarded to the family court.  Conditions of release and any department of corrections supervision or custody shall remain in effect until the family court approves the motion for treatment as a youthful offender and orders conditions of juvenile probation pursuant to section 5284 of this title.

(c)  A plea of guilty entered by the youth pursuant to subsection (b) of this section shall be conditional upon the family court granting the motion for youthful offender status. 

(d)(1)  If the family court denies the motion for youthful offender treatment pursuant to subsection 5284 of this title, the case shall be returned to the district court and the youth shall be permitted to withdraw the plea.  The conditions of release imposed by the district court pursuant to subsection (b) of this section shall remain in effect, and the case shall proceed as though the motion for youthful offender treatment had not been made. 

(2)  Subject to Rule 11 of the Vermont Rules of Criminal Procedure and Rule 410 of the Vermont Rules of Evidence, the family court’s denial of the motion for youthful offender treatment and any information related to the youthful offender proceeding shall be inadmissible against the youth for any purpose in the subsequent criminal proceeding in district court.   

§ 5282.  REPORT FROM THE DEPARTMENT

(a)  Within 30 days after the case is transferred to family court, unless the court extends the period for good cause shown, the department shall file a report with the family court.

(b)  A report filed pursuant to this section shall include the following elements:

(1)  A recommendation as to whether youthful offender status is appropriate for the youth.

(2)  A disposition case plan including proposed services and proposed conditions of juvenile probation in the event youthful offender status is approved. 

(3)  A description of the services that may be available for the youth when he or she reaches 18 years of age.

(c)  A report filed pursuant to this section is privileged and shall not be disclosed to any person other than the department, the court, the state’s attorney, the youth, the youth’s attorney, the youth’s guardian ad litem, the department of corrections, or any other person when the court determines that the best interests of the youth would make such a disclosure desirable or helpful.

§ 5283.  HEARING IN FAMILY COURT

(a)  Timeline.  A hearing on the motion for youthful offender status shall be held no later than 35 days after the transfer of the case from district court.

(b)  Notice.  Notice of the hearing shall be provided to the state’s attorney; the youth; the youth’s parent, guardian, or custodian; the department; and the department of corrections.

(c)  Hearing procedure.   

(1)  If the motion is contested, all parties shall have the right to present evidence and examine witnesses.  Hearsay may be admitted and may be relied on to the extent of its probative value.   If reports are admitted, the parties shall be afforded an opportunity to examine those persons making the reports, but sources of confidential information need not be disclosed.

(2)  Hearings under subsection 5284(a) of this title shall be open to the public.  All other youthful offender proceedings shall be confidential.

(d)  The burden of proof shall be on the moving party to prove by a preponderance of the evidence that a child should be granted youthful offender status.  If the court makes the motion, the burden shall be on the youth.

(e)  Further hearing.  On its own motion or the motion of a party, the court may schedule a further hearing to obtain reports or other information necessary for the appropriate disposition of the case.    

§ 5284.  DETERMINATION AND ORDER

(a)  In a hearing on a motion for youthful offender status, the court shall first consider whether public safety will be protected by treating the youth as a youthful offender.  If the court finds that public safety will not be protected by treating the youth as a youthful offender, the court shall deny the motion and return the case to district court pursuant to subsection 5281(d) of this title.  If the court finds that public safety will be protected by treating the youth as a youthful offender, the court shall proceed to make a determination under subsection (b) of this section.

(b)(1)  The court shall deny the motion if the court finds that:

(A)  the youth is not amenable to treatment or rehabilitation as a youthful offender; or

(B)  there are insufficient services in the juvenile court system and the department to meet the youth’s treatment and rehabilitation needs.

(2)  The court shall grant the motion if the court finds that:

(A)  the youth is amenable to treatment or rehabilitation as a youthful offender; or

(B)  there are sufficient services in the juvenile court system and the department to meet the youth’s treatment and rehabilitation needs.

(c)  If the court approves the motion for youthful offender treatment, the court:

(1)  shall approve a disposition case plan and impose conditions of juvenile probation on the youth; and

(2)  may transfer legal custody of the youth to a parent, relative, person with a significant relationship with the youth, or commissioner, provided that any transfer of custody shall expire on the youth’s eighteenth birthday. 

(d)  The department shall be responsible for supervision of and providing services to the youth until he or she reaches the age of 18.  A lead case manager shall be designated who shall have final decision-making authority over the case plan and the provision of services to the youth.  The youth shall be eligible for appropriate community-based programming and services provided by the department.

(e)  The youth shall not be permitted to withdraw his or her plea of guilty after youthful offender status is approved except to correct manifest injustice pursuant to rule 32(d) of the Vermont Rules of Criminal Procedure. 

§ 5285.  Modification or revocation of disposition

(a)  If it appears that the youth has violated the terms of juvenile probation ordered by the court pursuant to subdivision 5284(c)(1) of this title, a motion for modification or revocation of youthful offender status may be filed in family court.  The court shall set the motion for hearing as soon as practicable. The hearing may be joined with a hearing on a violation of conditions of probation under section 5265 of this title.  A supervising juvenile or adult probation officer may detain in an adult facility a youthful offender who has attained the age of 18 for violating conditions of probation.  

(b)  A hearing under this section shall be held in accordance with section 5268 of this title.

(c)  If the court finds after the hearing that the youth has violated the terms of his or her probation, the court may:

(1)  maintain the youth’s status as a youthful offender, with modified conditions of juvenile probation if the court deems it appropriate;

(2)  revoke the youth’s status as a youthful offender status and return the case to the district court for sentencing; or

(3)  transfer supervision of the youth to the department of corrections.

(d)  If a youth’s status as a youthful offender is revoked and the case is returned to the district court under subdivision (c)(2) of this section, the district court shall hold a sentencing hearing and impose sentence.  When determining an appropriate sentence, the district court may take into consideration the youth’s degree of progress toward rehabilitation while on youthful offender status.  The district court shall have access to all family court records of the proceeding.  

§ 5286.  Review prior to the age of 18

(a)  The family court shall review the youth’s case before he or she reaches the age of 18 and set a hearing to determine whether the court’s jurisdiction over the youth should be continued past the age of 18.   The hearing may be joined with a motion to terminate youthful offender status under section 5285 of this title.  The court shall provide notice and an opportunity to be heard at the hearing to the state’s attorney, the youth, the department, and the department of corrections. 

(b)  After receiving a notice of review under this section, the state may file a motion to modify or revoke pursuant to section 5285 of this title.  If such a motion is filed, it shall be consolidated with the review under this section and all options provided for under section 5285 of this title shall be available to the court.

(c)  The following reports shall be filed with the court prior to the hearing:

(1)  The department shall report its recommendations, with supporting justifications, as to whether the family court should continue jurisdiction over the youth offender past the age of 18 and, if continued jurisdiction is recommended, whether the department or the department of corrections should   be responsible for supervision of the youthful offender.

(2)  If the department recommends that the department of corrections be responsible for supervision of the youthful offender past the age of 18, the department shall notify the department of corrections, which shall report on the services which would be available for the youth in the event supervision over him or her is transferred to the department of corrections.  

(d)  If the court finds that it is in the best interest of the youth and consistent with community safety to continue the case past the age of 18, it shall make an order continuing the court’s jurisdiction up to the age of 22.  The order shall specify whether the youth will be supervised by the department or the department of corrections.  Irrespective of which department is specified in the order, the department and the department of corrections shall jointly develop a case plan for the youth and coordinate services and share information to ensure compliance with and completion of the juvenile disposition.

(e)  If the court finds that it is not in the best interest of the youth to continue the case past the age of 18, it shall terminate the disposition order, discharge the youth, and dismiss the case in accordance with subsection 5287(c) of this title.

§ 5287.  Termination or continuance of PROBATION

(a)  A motion may be filed at any time in the family court requesting that the court terminate the youth’s status as a youthful offender and discharge him or her from probation.  The motion may be filed by the state’s attorney, the youth, the department, or the court on its own motion.  The court shall set the motion for hearing and provide notice and an opportunity to be heard at the hearing to the state’s attorney, the youth, and the department.   

(b)  In determining whether a youth has successfully completed the terms of probation, the court shall consider:

(1)  the degree to which the youth fulfilled the terms of the case plan and the probation order;

(2)  the youth’s performance during treatment;

(3)  reports of treatment personnel; and

(4)  any other relevant facts associated with the youth’s behavior.

(c)  If the court finds that the youth has successfully completed the terms of the probation order, it shall terminate youthful offender status, discharge the youth from probation, and file a written order dismissing the family court case.  The family court shall provide notice of the dismissal to the district court, which shall dismiss the district court case. 

(d)  Upon discharge and dismissal under subsection (c) of this section, all records relating to the case in the district court shall be expunged, and all records relating to the case in the family court shall be sealed pursuant to section 5119 of this title.

(e)  If the court denies the motion to discharge the youth from probation, the court may extend or amend the probation order as it deems necessary.

§ 5288.  Rights of victims in youthful offender proceedings

(a)  The victim in a proceeding involving a youthful offender shall have the following rights:

(1)  To be notified by the prosecutor in a timely manner when a court proceeding is scheduled to take place and when a court proceeding to which he or she has been notified will not take place as scheduled.

(2)  To be present during all court proceedings subject to the provisions of Rule 615 of the Vermont Rules of Evidence and to express reasonably his or her views concerning the offense and the youth.

(3)  To request notification by the agency having custody of the youth before the youth is released from a residential facility.

(4)  To be notified by the prosecutor as to the final disposition of the case.

(5)  To be notified by the prosecutor of the victim’s rights under this section.

(b)  In accordance with court rules, at a hearing on a motion for youthful offender treatment under section 5281 of this title, the court shall ask if the victim is present and, if so, whether the victim would like to be heard regarding disposition.  In ordering disposition, the court shall consider any views offered at the hearing by the victim.  If the victim is not present, the court shall ask whether the victim has expressed, either orally or in writing, views regarding disposition and shall take those views into consideration in ordering disposition.

(c)  No youthful offender proceeding shall be delayed or voided by reason of the failure to give the victim the required notice or the failure of the victim to appear.

(d)  For purposes of this section “victim” shall have the same meaning as in subdivision 5301(4) of Title 13.

Subchapter 6.  Placement of Minors in Secure Facilities

§ 5291.  Detention of Minors Charged as Delinquents in a   Secure Facility for the Detention of Delinquent Children

(a)  Unless ordered otherwise at or after a temporary care hearing, the commissioner shall have sole authority to place the child who is in the custody of the department in a secure facility for the detention of minors.

(b)  Upon a finding at the temporary care 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 in 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.

§ 5292.  Detention in Adult Facilities of Minors Charged or Adjudicated as Delinquents

(a)  A minor charged with a delinquent act shall not be detained under this chapter 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 life imprisonment and it appears to the satisfaction of the court that public safety and protection reasonably require such detention.

(b)  A minor who has been adjudicated as a delinquent child shall not by virtue of such adjudication be committed or transferred to an institution or other facility used primarily for the execution of sentences of persons convicted of a crime.

(c)  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 (a) of this section or section 5293 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.

§ 5293.  Disposition of minors adjudicated as adult offenders; separation of persons under 18 years from adults

(a)  Pretrial detention.

(1)  A minor who is under the age of 18 who has been arrested shall not be placed in a facility for adult offenders unless a felony charge has been filed in district court or the district court has exercised jurisdiction over the matter and the state’s attorney has determined that a felony charge will be filed without delay.  A minor who is eligible for release under chapter 229 of Title 13 shall be released.

(2)(A)  A minor who is under the age of 18 who has been arrested for a misdemeanor shall immediately and without first being taken elsewhere:

(i)  be released to his or her parents, guardian, or custodian; or

(ii)  be delivered to the district court.

(B)  If the minor is delivered to the district court, the arresting officer shall immediately file written notice thereof with the court together with a statement of the reason for taking the minor into custody.  A minor who is eligible for release under chapter 229 of Title 13 shall be released.  In the event that the minor is not released:

(i)  the minor shall not be detained in a facility for adult offenders; and

(ii)  The court shall defer to the commissioner of corrections concerning the facility in which the minor shall be detained.

(b)  Sentencing of minor.  If a minor is convicted of an offense in a court of criminal jurisdiction as an adult, the court shall sentence the minor as an adult.

(c)  Placement of minors under 16. The commissioner of corrections shall not place a minor under the age of 16 who has been sentenced to a term of imprisonment in a correctional facility used to house adult offenders.

(d)  Placement of minors over 16 convicted of felony. The commissioner of corrections may place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a felony and who has been sentenced to a term of imprisonment.

(e)  Placement of minor over 16 convicted of misdemeanor.  The commissioner of corrections shall not place in a facility for adult offenders a minor who has attained the age of 16 but is under the age of 18 who has been convicted of a misdemeanor

(f)  Transfer of minor at 18th birthday. At the 18th birthday of a minor convicted of a misdemeanor, the commissioner may transfer the minor to a facility for adult offenders.

(g)  Applicability. The provisions of this section shall apply to the commitment of minors to institutions within or outside the state of Vermont.

and by renumbering the remaining sections of the bill to be numerically correct.

Ninth:  In the renumbered Sec. 3, 33 V.S.A. § 5301(2), after the word “removal” by adding the words from the child’s current home

Tenth:  In the renumbered Sec. 3, 33 V.S.A. § 5302(b)(2), in the last sentence after the word “The” by adding the words officer shall contact the department and the

Eleventh:  In the renumbered Sec. 3, 33 V.S.A. § 5306, in subsection (a), in the first sentence, after the words “order to the” by inserting the word custodial and in the third sentence by striking out the words “the parents” and inserting in lieu thereof the words such persons and in subsection (b), in the first sentence, after the word “conditional” by striking out the word “care” and inserting in lieu thereof the word custody and, in the second sentence, by striking out the following: “, in writing,

Twelfth:  In the renumbered Sec. 3, 33 V.S.A. § 5307(e), by striking out subdivision (5) in its entirety and inserting in lieu thereof:

(5)(A)  The identity and location of a noncustodial parent, a relative, or a person with a significant relationship with the child known to the department who may be appropriate, capable, willing, and available to assume temporary legal custody of the child.  If the noncustodial parent cannot be located, the department shall provide to the court a summary of the efforts made to locate the parent.

(B)  With respect to any person whom the department identifies pursuant to this subdivision, the department shall conduct an assessment of the suitability of the person to care for the child.  The assessment shall include consideration of the person’s ability to care for the child’s needs, a criminal history record as defined in 20 V.S.A. § 2056a(a)(1) in accordance with subdivision (5)(C) of this subsection, and a check of allegations of prior child abuse or neglect by the person or by other adults in the person’s home.  The court may continue the hearing if necessary to permit the department to complete the assessment.

(C)  The department shall request from the Vermont criminal information center criminal history record information for any person being considered to assume temporary legal custody of the child pursuant to this subdivision.  The request shall be in writing and shall be accompanied by a release signed by the person.  The department through the Vermont criminal information center shall request criminal history record information from the appropriate state criminal repositories in all states in which it has reason to believe the person has resided or been employed.  If no disqualifying record is identified at the state level, the department through the Vermont criminal information center shall request from the Federal Bureau of Investigation a national criminal history record check of the person's criminal history.  The request to the FBI shall be accompanied by a set of the person's fingerprints and a fee established by the Vermont criminal information center.  The Vermont criminal information center shall send the department the criminal history record from any state repository and the FBI of a person about whom a request is made under this subdivision or inform the department that no record exists.  The department shall promptly provide a copy of the criminal history record, if any, to the person and shall inform the person that he or she has the right to appeal the accuracy and completeness of the record through the Vermont criminal information center.  Upon completion of the process under this subdivision, the person's fingerprint card shall be destroyed.

Thirteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5308, by striking out subsection (b) in its entirety and inserting in lieu thereof:

(b)  Upon a finding that any of the conditions set forth in subsection (a) of this section exists, the court may issue such temporary orders related to the custody of the child as it deems necessary and sufficient to protect the welfare and safety of the child including:

(1)  A conditional custody order returning custody of the child to the parent, guardian, or custodian, subject to such conditions and limitations as the court may deem necessary and sufficient to protect the child.

(2)  An order transferring temporary custody of the child to a noncustodial parent or a relative who is appropriate, capable, willing, and available to care for the child.

(3)  A temporary care order transferring temporary custody of the minor child to the commissioner. 

Fourteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5308(c), in subdivision (2)(B) after the words “with services” by adding the following: , if legal custody of the child has been transferred to the commissioner  and by adding a new subdivision (3) to read: 

(3)  In his or her discretion, the commission may provide assistance and services to children and families to the extent that funds permit notwithstanding subdivision (2)(B) of this subsection.

Fifteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5308(c)(2)(C), after the word “disabilities” by adding the words provided that the child’s needs are given primary consideration

Sixteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5309(d), in the first sentence after the words “request of the” by adding the words secretary of the and in the last sentence by striking out the words “requirements of subdivision 5102(2)(C)” and inserting in lieu thereof the words criteria of subdivision 5102(2)(B)(ii)

Seventeenth:  In the renumbered Sec. 3, 33 V.S.A. § 5311, in the catchline by striking out the following:  “; PRELIMINARY HEARING

Eighteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5313(b), after the words “is issued” by adding the words except for good cause shown

Nineteenth:  In the renumbered Sec. 3, 33 V.S.A. § 5316, in subdivision (b)(4) after the word “disabilities” by adding the words provided that the child’s needs are given primary consideration and by striking out subdivision (b)(9) in its entirety

Twentieth:  In the renumbered Sec. 3, 33 V.S.A. § 5319(b), at the end of the subsection by adding the following: The court may allocate the costs of supervised visitation.

Twenty-first:  In the renumbered Sec. 3, by adding a new 33 V.S.A. § 5322 to read as follows:

§ 5322.  PostDisposition Review and Permanency Review for CHILDREN in NEED OF CARE AND SUPERVISION 

Whenever custody of a child in need of care or supervision is transferred to the commissioner, the custody order of the court shall be subject to a postdisposition review hearing pursuant to section 5320 of this title and permanency reviews pursuant to section 5321 of this title.  At the permanency review, the court shall consider only the permanency goal and whether the department should continue to maintain custody of the child and shall not consider the appropriateness of the particular placement chosen by the department.

and by renumbering the remaining statutory section to be numerically correct.

Twenty-second:  By deleting the renumbered Sec. 4, REPORT FROM THE DEPARTMENT FOR CHILDREN AND FAMILIES, in its entirety, and by renumbering the remaining sections to be numerically correct.

Twenty-third:  In the renumbered Sec. 4, 13 V.S.A. § 1030, by amending the catchline to read:

§ 1030.  VIOLATION OF AN ABUSE PREVENTION ORDER OR, AN ORDER AGAINST STALKING OR SEXUAL ASSAULT, OR A PROTECTIVE ORDER CONCERNING CONTACT WITH A CHILD

Twenty-fourth:  By adding a new Sec. 5 to read as follows:

Sec. 5.  Rule (3)(c)(6) of the Vermont Rules of Criminal Procedure is amended to read:

(6)  The person has violated an order issued by a court in this state pursuant to 12 V.S.A. chapter 178, 15 V.S.A. chapter 21, or 33 V.S.A. chapter 69 or subsection 5115(e).

Twenty-fifth:  By adding a new Sec. 6 to read as follows:

Sec. 6.  33 V.S.A. § 3902 is amended as follows:

§ 3902. ASSIGNMENT OF SUPPORT RIGHTS BY PUBLIC ASSISTANCE RECIPIENTS; PROCEEDINGS TO ESTABLISH SUPPORT OBLIGATION

* * *

(e)  When a responsible parent is receiving welfare assistance under Title XVI of the Social Security Act or chapter 11 of this title, on the parent’s own behalf or on behalf of a dependent child, no amounts shall accrue or be collected under the support order while the welfare assistance is being received.  The commissioner shall monitor receipt of welfare assistance by responsible parents to ensure collection action is not instituted while welfare assistance is being received and that collection action is instituted promptly when the responsible parent no longer receives assistance.

(f)  If a support order has been entered and the legal custodian and obligee relinquishes physical responsibility of the child to a caretaker without modifying the physical rights and responsibilities order, the office of child support may change the payee of support upon the caretaker’s receipt of Reach Up family assistance (RUFA) from the department for children and families.  The obligor’s obligation under the support order to pay child support and medical support continues but shall be payable to the office of child support upon the caretaker’s receipt of RUFA and shall continue so long as the assignment is in effect.  The office of child support shall notify the obligor and obligee under the support order, by first class mail at last known address, of the change of payee.

Twenty-sixth:  By adding a new Sec. 7 to read as follows:

Sec. 7.  33 V.S.A. § 3903 is amended to read:

§ 3903.  CHILD SUPPORT DEBT

(a)  Except as otherwise provided in this section, any payment of Reach Up financial assistance made to or for the benefit of a dependent child creates a debt due and owing to the department for children and families by any responsible parent in an amount equal to the amount of Reach Up financial assistance paid.

(1)  A debt shall not be incurred by any responsible parent while that parent receives public assistance for the benefit of any of his or her dependent children.  A debt previously incurred by any responsible parent shall not be collected from the responsible parent while that parent receives public assistance for the benefit of his or her dependent children, or assistance under Title XVI of the Social Security Act.

(2)(b)  Collection of child support debts shall be made as provided by this section and section 3902 of this title and by subchapter 7 of chapter 11 of Title 15.  Regardless of the amount of Reach Up financial assistance paid, the court may limit the child support debt, taking into consideration the criteria of section 659 of Title 15.  The department for children and families and the responsible parent may limit the child support debt by stipulation which shall be enforceable on its terms unless it is modified.

And by renumbering the remaining sections to be numerically correct.


H. 700

An act relating to sale of bottles of wine at festivals.

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

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.  7 V.S.A. § 2(27) is amended to read:

(27)  “Special events permit”:  a permit granted by the liquor control board permitting a person holding a manufacturer’s or rectifier’s license to attend an event open to the public, which has been approved by the local licensing authority, to sell by the glass or by unopened bottle the malt or vinous beverage manufactured or rectified by the license holder.  No more than 12 special events’ permits shall be issued to a holder of a manufacturer’s or rectifier’s license during a year.  The fee for the permit is as required by subdivision 231(13) of this title, and shall be paid to the department of liquor control.  Requests for a special events’ permit shall be submitted to the department of liquor control and received by the department at least 15 days prior to the date of the event.  Each manufacturer or rectifier planning to attend a single special event under this permit may be listed on a single permit. However each attendance at a special event shall count toward the manufacturer’s or rectifier’s 12 special event permit limitation.

(Committee Vote: 5-0-0)

(No House amendments.)

PROPOSAL OF AMENDMENT TO H. 700 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves that the Senate propose to the House to amend the bill by adding two new sections to be numbered Secs. 2 and 3 to read as follows:

Sec. 2.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means:

     (A)  a licensed plumber, electrician, or HVAC contractor;

     (B)  An established and known building or construction contractor, demolition contractor, construction and demolition debris contractor;

     (C)  a public utility, transportation company, licensed peddler or broker;

     (D)  an established and known industrial or manufacturing company; marine, automobile, or aircraft salvage and wrecking company; or

     (E)  a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

(F)  Catalytic converters.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

Sec. 3.  4 V.S.A. § 1102(b) is amended to read:

(b)  The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

H. 748

An act relating to permitting students to possess and self-administer emergency medication.

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

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.  16 V.S.A. § 1387 is added to read:

§ 1387.  POSSESSION AND SELF-ADMINISTRATION OF EMERGENCY MEDICATION

(a)  Pursuant to the requirements of this section, each public and approved independent school in the state shall permit students with life-threatening allergies or with asthma to possess and self-administer emergency medication during the school day, on school grounds, at school-sponsored activities, on school-provided transportation, and during school-related programs.

(b)  In each school year for which possession and self‑administration of emergency medication is requested, the student’s parent or guardian shall provide the school with:

(1)  Written authorization, on a form to be provided by the school, for the student to possess and self-administer emergency medication. 

(2)  Written documentation from the student’s physician:

(A)  Stating that the student has one or more life-threatening allergies or asthma or both.

(B)  Providing the name of the emergency medication, the dosage, and the times and circumstances under which the medication is to be taken.

(C)  Affirming that the student:

(i)  Is capable of, and has been instructed by the physician in, the proper method of self-administration of the emergency medication.

(ii)  Has been advised of possible side-effects of the medication.

(iii)  Has been informed of when and how to access emergency services.

(D)  Affirming that the student has been instructed to inform the school nurse or another school employee or agent immediately after
self-administering the emergency medication.

(c)  In each school year for which possession and self‑administration of

emergency medication is requested, the student’s parent or guardian shall:

(1)  Develop, in consultation with the school nurse or the designated health care staff at an approved independent school, a plan of action regarding responding to the student’s life‑threatening allergy or allergies or asthma.  The plan of action shall be based upon the written documentation provided by the student’s physician and shall include the name of each emergency medication, the dosage, and the times and circumstances under which the medication is to be taken.  The written plan shall prominently state that the medication is solely for the use of the student covered by the plan. 

(2)  It shall be the responsibility of the student’s parent or guardian to provide a copy of the plan of action to any school employee or agent responsible for the student before or after the normal hours of the school day; provided, however, it shall be the school’s responsibility to give a copy of the plan to the drivers of a bus providing routine transportation between the student’s home and the school, regardless of whether the transportation is operated by the school or is a service for which it contracts.

(d)  The student’s parent or guardian shall sign a statement on a form to be provided by the school, releasing the school and its employees and agents, including volunteers, from liability as a result of any injury arising from the student’s self-administration of the emergency medication, except when the conduct of the school, school employee, or agent would constitute gross negligence, recklessness, or intentional misconduct. 

(e)  Nothing in this section shall prohibit a public school district or an approved independent school from adopting school policies and individual plans of action regarding the possession and self-administration of emergency medication for medical conditions other than asthma and life-threatening allergies.

Sec. 2.  EFFECTIVE DATE

This act shall apply during the 2008–2009 academic year and after.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 20, 2008, page 649.)

House Proposal of Amendment

S. 146

An act relating to advertising and producing musical performances.

The House proposes to the Senate to amend the bill as follows:

In Sec. 1. 9 V.S.A. § 2479a(b)(3) between the words “is” and “identified” by adding the word “conspicuously

Joint Resolutions for Action

J.R.S. 63

Joint resolution requesting the sustainable agriculture council to establish a locally grown collaborative to coordinate future policy pertaining to local food growth initiatives in Vermont.

(For text of Resolution, see Senate Journal of April 16, 2008, page 613.)

J.R.S. 64

Joint resolution in observance of the 2008 National Crime Victims’ Rights Week.

(For text of Resolution, see Senate Journal of April 16, 2008, page 615.)

Proposed Amendment To The Constitution

PROPOSAL 1

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

Subject:  General assembly; organizational session.

The Committee recommends that the proposal be amended by striking out the proposal in its entirety and inserting in lieu thereof the following:

PROPOSAL 1

Sec. 1.  PURPOSE

This proposal would amend the Constitution of the State of Vermont to provide for an organizational session of the Vermont General Assembly on the first Wednesday in December following each general election for the exclusive purposes of organization, swearing in of members, and selection of officers.

Sec. 2.  Section 7 of Chapter II of the Vermont Constitution is amended to read:

§ 7.  [ORGANIZATIONAL AND BIENNIAL SESSIONS]

On the first Wednesday in December following each general election, the General Assembly shall meet for one day for an organizational session for the exclusive purposes of organizing, swearing in members, and selecting officers.

The General Assembly shall meet biennially, for the commencement of a biennial session, on the first Wednesday next after the first Monday of January, beginning in A.D. 1915.

Sec. 3.  Section 17 of Chapter II of the Vermont Constitution is amended to read:

§ 17.  [OATH OF SENATORS AND REPRESENTATIVES]

The Representatives having met on the day appointed by law for the commencement of a biennial session of the General Assembly, and chosen their Speaker, and the Senators having met, shall, before they proceed to business, take and subscribe the following oath, in addition to the oath prescribed in the foregoing section oaths:

You do solemnly swear (or affirm) that you did not at the time of your election to this body, and that you do not now, hold any office of profit or trust under the authority of Congress. So help you God.  (Or in case of an affirmation) Under the pains and penalties of perjury.  The words “office of profit or trust under the authority of Congress” shall be construed to mean any office created directly or indirectly by Congress, and for which emolument is provided from the Treasury of the United States, other than that of a member of the commissioned or enlisted personnel in the reserve components of the armed forces of the United States while not on extended active duty.

You do solemnly swear (or affirm) that as a member of this Assembly, you will not propose, or assent to, any bill, vote, or resolution, which shall appear to you injurious to the people, nor do or consent to any act or thing whatever, that shall have a tendency to lessen or abridge their rights and privileges, as declared by the Constitution of this State; but will, in all things, conduct yourself as a faithful, honest Representative and guardian of the people, according to the best of your judgment and ability.  So help you God. (Or in the case of an affirmation) Under the pains and penalties of perjury.

You do solemnly swear (or affirm) that you will be true and faithful to the State of Vermont, and that you will not, directly or indirectly, do any act or thing injurious to the Constitution or Government thereof.  So help you God. (Or in case of an affirmation) Under the pains and penalties of perjury.

Sec. 4.  Section 46 of Chapter II of the Vermont Constitution is amended to read:

§ 46.  [TERMS OF SENATORS AND REPRESENTATIVES]

The term of office of Senators and Representatives shall be two years, commencing on the first Wednesday next after the first Monday of January in December following their election.

Sec. 5.  REPEAL

Chapter II § 16 of the Vermont Constitution (oath for members of the House of Representatives) is repealed.

Sec. 6.  EFFECTIVE DATE; TRANSITION

This proposal of amendment shall take effect from the date of its approval by a majority vote of the voters of the state.  The term of office of senators and representatives elected in the general election in November 2010 shall terminate on the first Tuesday of December 2012, and the term of office of senators and representatives elected in the general election in November 2012 shall convene on the first Wednesday in December 2012.

(Committee vote:  5-0-0)

NOTICE CALENDAR

Favorable

H. 535

An act relating to the creation of a state law enforcement study committee.

Reported favorably by Senator Flanagan for the Committee on Government Operations.

(Committee vote: 5-0-0)

(For House amendments, see House Journal for April 6, 2007, page 574; April 10, 2007, page 586)

H. 558

An act relating to wastewater facility franchise tax exemption for mining waste.

Reported favorably by Senator MacDonald for the Committee on Natural Resources and Energy.

(Committee vote: 5-0-0)

(For House amendments, see House Journal for March 25, 2008, page 743.)

H. 704

An act relating to notices of transfer by an insurer of policies to an affiliate.

Reported favorably by Senator Carris for the Committee on Finance.

(Committee vote: 5-1-1)

(For House amendments, see House Journal for March 18, 2008, page 595)

J.R.H. 30

Joint resolution encouraging the inclusion of international education programs in the curriculum and extracurricular activities of Vermont’s colleges and universities in order to meet the challenges of a global society.

Reported favorably by Senator Doyle for the Committee on Education.

(Committee vote: 5-0-0)

Favorable with Proposal of Amendment

H. 11

An act relating to the commissioner of health.

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

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.  18 V.S.A. § 104 is amended to read:

§ 104.  COMMISSIONER OF HEALTH; DUTIES

(a)  The secretary shall appoint a commissioner of health, as provided in 3 V.S.A. § 3051, who shall be either a physician licensed to practice medicine and surgery in this state or a health care professional who has at least a master’s degree in public health or a related health care field and who, in addition, has had educational and practical experience in the field of public health. 

(b)  The commissioner may delegate such powers and assign such duties to members of the department as may be deemed appropriate and necessary for the proper execution of the provisions of this title.  If the commissioner is not a physician licensed to practice medicine and surgery in this state, the commissioner shall fill an existing exempt position within the department by appointing a chief medical officer who shall be a physician licensed to practice medicine and surgery in this state and who shall report to the commissioner.

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for March 28, 2008, page 792.)

H. 203

An act relating to increasing the amount of an estate to which a surviving spouse is entitled when the deceased spouse dies without a will.

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

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.  REPEAL

Chapters 41, 43 and 45 of Title 14 are repealed.

Sec. 2.  14 V.S.A. chapter 42 is added to Part 2 to read:

Chapter 42.  Descent and Survivors’ Rights

Subchapter 1.  General Provisions

§ 301.  Intestate Estate

(a)  Any part of a decedent’s estate not effectively disposed of by will passes by intestate succession to the decedent’s heirs, except as modified by the decedent’s will.

(b)  A decedent’s will may expressly exclude or limit the right of an individual or a class to inherit property.  If such an individual or member of such a class survives the decedent, the share of the decedent’s intestate estate which would have passed to that individual or member of such a class passes subject to any such limitation or exclusion set forth in the will.

(c)  Nothing in this section shall preclude the surviving spouse of the decedent from making the election and receiving the benefits provided by section 319 of this title.

§ 302.  Dower and Curtesy Abolished

The estates of dower and curtesy are abolished.

§ 303.  Afterborn Heirs

For purposes of this chapter and chapter 1 of this title relating to wills, an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth.

Subchapter 2.  Survivors’ Rights and Allowances

§ 311.  Share of Surviving Spouse

After payment of the debts, funeral charges, and expenses of administration, the intestate share of the decedent’s surviving spouse is as follows.

(1)  The entire intestate estate if no descendant of the decedent survives the decedent or if all of the decedent’s surviving descendants are also descendants of the surviving spouse.

(2)  In the event there shall survive the decedent one or more descendants of the decedent, who are not descendants of the surviving spouse and are not excluded by decedent’s will from inheriting from the decedent, the surviving spouse shall receive one-half of the intestate estate.

§ 312.  Surviving Spouse to Receive Household Goods

Upon motion, the surviving spouse of a decedent may receive out of the decedent’s estate all furnishings and furniture in the decedent’s household when the decedent leaves no descendants who object.  If any objection is made by any of the descendants, the court shall decide what, if any, of such personally shall pass under this section.  Goods and effects so assigned shall be in addition to the distributive share of the estate to which the surviving spouse is entitled under other provisions of law.  In making a determination pursuant to this section, the court may consider the length of the decedent’s marriage, the sentimental and monetary value of the property, and the source of the decedent’s interest in the property.

§ 313.  Surviving spouse; vessel, snowmobile, or all-terrain vehicle

Whenever the estate of a decedent who dies intestate consists principally of a vessel, snowmobile, or all-terrain vehicle, the surviving spouse shall be deemed to be the owner of the vessel, snowmobile, or all-terrain vehicle, and title to the vessel, snowmobile, or all-terrain vehicle shall automatically pass to the surviving spouse.

§ 314.  Share of Heirs other than Surviving Spouse

(a)  The balance of the intestate estate not passing to the decedent’s surviving spouse under section 311 of this title passes to the decedent’s descendants by right of representation. 

(b)  If there is no taker under subsection (a) of this section, the intestate estate passes in the following order: 

(1)  to the decedent’s parents equally if both survive or to the surviving parent;

(2)  to the decedent’s siblings or the descendants of any deceased siblings by right of representation;

(3)  one-half of the intestate estate to the decedent’s paternal grandparents equally if they both survive or to the surviving paternal grandparent and one-half of the intestate estate to the decedent’s maternal grandparents equally if they both survive or to the surviving maternal grandparent and if decedent is survived by a grandparent, or grandparents on only one side, to that grandparent or those grandparents;

(4)  in equal shares to the next of kin in equal degree.

(c)  If property passes under this section by right of representation, the property shall be divided into as many equal shares as there are children or siblings of the decedent, as the case may be, who either survive the decedent or who predecease the decedent leaving surviving descendants.

§ 315.  Parent and Child Relationship

For the purpose of intestate succession, an individual is the child of his or her parents, regardless of their marital status, but a parent shall not inherit from a child unless the parent has openly acknowledged the child and not refused to support the child.  The parent and child relationship may be established in parentage proceedings under subchapter 3A of chapter 5 of Title 15.

§ 316.  Support of Surviving Spouse and Family During Settlement

The probate court may make reasonable allowance for the expenses of maintenance of the surviving spouse and minor children or either, constituting the family of a decedent, out of the personal estate or the income of real or personal estate from date of death until settlement of the estate, but for no longer a period than until their shares in the estate are assigned to them or, in case of an insolvent estate, for not more than eight months after administration is granted.  This allowance may take priority, in the discretion of the court, over debts of the estate.

§ 317.  Allowance to Children before Payment of Debts

When a person dies leaving children under 18 years of age, an allowance may be made for the necessary maintenance of such children until they become 18 years of age.  Such allowance shall be made before any distribution of the estate among creditors, heirs, or beneficiaries by will.

§ 318.  Allowance to Children After Payment of Debts

Before any partition or division of an estate among the heirs or beneficiaries by will, an allowance may be made for the necessary expenses of the support of the children of the decedent under 18 years of age until they arrive at that age.  The probate court may order the executor or administrator to retain sufficient estate assets for that purpose, except where some provision is made by will for their support.

§ 319.  Waiver of Will by Surviving Spouse

(a)  A surviving spouse may waive the provisions of the decedent’s will and instead elect to take one-half of the balance of the estate, after the payment of claims and expenses.

(b)  The surviving spouse must be living at the time this election is made.  If the surviving spouse is mentally disabled and cannot make the election personally, a guardian or attorney in fact under a valid durable power of attorney may do so.

(c)  The rights of election of the surviving spouse in subsection 319(a) of this chapter may be waived in whole or in part before marriage by a written contract or waiver signed by the surviving spouse that is witnessed and acknowledged.  Such an agreement is not enforceable if the surviving spouse proves any of the following:

(1)  the surviving spouse did not execute the written contract or waiver voluntarily;

(2)  the written contract or waiver was unfair when it was made;

(3)  one spouse did not have separate legal representation at the time the written contract or waiver was executed;

(4)  the surviving spouse was not provided with a full and fair financial disclosure of the property or financial obligations of the decedent; or

(5)  inadequate consideration was paid.

§ 320.  Effect of Divorce Order

A final divorce order from any state shall have the effect of nullifying a gift by will or inheritance by operation of law to an individual who was the decedent’s spouse at the time the will was executed if the decedent was no longer married to that individual at the time of death, unless his or her will specifically states to the contrary.

§ 321.  Conveyances to Defeat Spouse’s Interest

Except as provided in subsection 319(c) of this title, a voluntary transfer of any property by an individual during marriage, made without adequate consideration and for the primary purpose of defeating a surviving spouse in a claim to a share of the decedent’s property so transferred, shall be void and inoperative to bar the claim.  The decedent shall be deemed at the time of his or her death to be the owner and seised of an interest in such property sufficient for the purpose of assigning and setting out the surviving spouse’s share.

§ 322.  Unlawful Killing Affecting InheritancE

Notwithstanding sections 311 through 314 of this title or provisions otherwise made, in any case where an individual is entitled to inherit or receive property under the last will of a decedent, or otherwise, such individual’s share in the decedent’s estate shall be forfeited and shall pass to the remaining heirs or beneficiaries of the decedent if such person intentionally and unlawfully kills the decedent.  In any proceedings to contest the right of an individual to inherit or receive property under a will, the record of such person’s conviction of intentionally and unlawfully killing the decedent shall be admissible evidence that such person did intentionally kill the decedent.

Subchapter 3.  Descent, Omitted Issue and Lapsed Legacies

§ 331.  Degrees; How Computed:  Kindred of Half-Blood

Kindred of the half-blood shall inherit the same share they would inherit if they were of the whole blood.

§ 332.  Share of After-Born Child

When a child of a testator is born after the making of a will and provision is not therein made for that child, he or she shall have the same share in the estate of the testator as if the testator had died intestate unless it is apparent from the will that it was the intention of the testator that provision should not be made for the child.

§ 333.  Share of Child or Descendant of Child Omitted from Will

When a testator omits to provide in his or her will for any of his or her children, or for the descendants of a deceased child, and it appears that the omission was made by mistake or accident, the child or descendants, as the case may be, shall have and be assigned the same share of the estate of the testator as if the testator had died intestate.

§ 334.  After-born AND OMITTED Child; From What Part of Estate Share Taken

When a share of a testator's estate is assigned to a child born after the making of a will, or to a child or the descendant of a child omitted in the will, the share shall be taken first from the estate not disposed of by the will, if there is any.  If that is not sufficient, so much as is necessary shall be taken from the devisees or legatees in proportion to the value of the estate they respectively receive under the will.  If the obvious intention of the testator, as to some specific devise, legacy, or other provision in the will, would thereby be defeated, the specific devise, legacy, or provision may be exempted from such apportionment and a different apportionment adopted in the discretion of the court.

§ 335.  Beneficiary Dying before Testator: Descendants to Take

When a testamentary gift is made to a child or other kindred of the testator, and the designated beneficiary dies before the testator, leaving one or more descendants who survive the testator, such descendants shall take the gift that the designated beneficiary would have taken if he or she had survived the testator, unless a different disposition is required by the will.

§ 336.  Individual Absent and Unheard of; Share of Estate

If an individual entitled to a distributive share of the estate of a decedent is absent and unheard of for six years, two of which are after the death of the decedent, the probate court in which the decedent’s estate is pending may order the share of the absent individual distributed in accordance with the terms of the decedent’s will or the laws of intestacy as if such absent individual had not survived the decedent.  If the absent individual proves to be alive, he or she shall be entitled to the share of the estate notwithstanding prior distribution, and may recover in an action on this statute any portion thereof which any other individual received under order.  Before an order is made for the payment of distribution of any money or estate as authorized in this section, notice shall be given as provided by the Vermont Rules of Probate Procedure.

§ 337.  Requirement that Individual Survive Decedent for 120 hours

Except as provided in the decedent’s will, an individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, intestate succession, and taking under decedent’s will, and the decedent’s heirs and beneficiaries shall be determined accordingly.  If it is not established by clear and convincing evidence that an individual who would otherwise be an heir or beneficiary survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period.  This section is not to be applied if its application would result in escheat.

§ 338.  DISTRIBUTION; ORDER IN WHICH ASSETS APPROPRIATED; ABATEMENT

(a)(1)  Except as provided in subsection (b) of this section, shares of distributes given under a will abate, without any preference or priority as between real and personal property, in the following order:

(A)  property not disposed of by the will;

(B)  residuary devises and bequests;

(C)  general devises and bequests;

(D)  specific devises and bequests.

(2)  For purpose of abatement, a general devise or bequest charged on any specific property or fund is a specific devise or bequest to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise or bequest to the extent of the failure or insufficiency.  Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.

(b)  If the will expresses an order of abatement or if the testamentary plan or the express or implied purpose of a devise or bequest would be defeated by the order of abatement listed in subsection (a) of this section, the shares of the distributees shall abate as may be necessary to give effect to the intention of the testator.

(c)  If the subject of a preferred devise or bequest is sold or used incident to administration, abatement shall be achieved by appropriate adjustments in, or contribution from, other interests in the remaining assets.

§ 339.  REFERRAL TO STATE’S ATTORNEY

A probate judge who finds there is good cause to believe that an individual has misapplied fiduciary property in violation of 13 V.S.A. § 2540 shall make a report to the state’s attorney.

Sec. 3.  13 V.S.A. § 2540 is added to read:

§ 2540.  MISAPPLICATION OF FIDUCIARY PROPERTY

(a)  For purposes of this section:

(1)  “fiduciary” includes:

(A)  a trustee, a guardian, an administrator, an executor, a conservator, and a receiver;

(B)  an attorney in fact or an agent appointed under a durable power of attorney as provided by section 3508 of Title 14; and

(C)  any other person acting in a fiduciary capacity, but not a commercial bailee.

(2)  “Misapply” means deal with property contrary to:

(A)  an agreement under which the fiduciary holds the property; or

(B)  a law prescribing the custody or disposition of the property.

(b)  A person commits an offense if he or she intentionally or recklessly misapplies property he or she holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.

(c)  A person who violates subsection (b) of this section shall be imprisoned not more than one year or fined not more than $1,000.00 or both if the value of the property misapplied does not exceed $900.00 in value.

(d)  A person who violates subsection (b) of this section shall be imprisoned not more than ten years or fined not more than $5,000.00 or both if the value of the property misapplied exceeds $900.00 in value.

Sec. 4.  13 V.S.A. § 2578 is amended to read:

§ 2578.  RESTITUTION

(a)  A sentencing court may order reasonable restitution where:

(1)  merchandise stolen is not recovered or is recovered in damaged condition.  Damages shall be calculated based on retail value; or

(2)  fiduciary property has been misapplied pursuant to section 2540 of this title.  Damages shall be based on the value of the property misapplied.

(b)  Restitution may be ordered in addition to any other penalties imposed.

(c)  Restitution shall be supervised by the department of corrections.

Sec. 5.  23 V.S.A. § 2023 is amended to read:

§ 2023.  TRANSFER OF INTEREST IN VEHICLE

(a)  If an owner transfers his or her interest in a vehicle, other than by the creation of a security interest, he or she shall, at the time of delivery of the vehicle, execute an assignment and warranty of title to the transferee in the space provided therefor on the certificate or as the commissioner prescribes, and of the odometer reading or hubometer reading or clock meter reading of the vehicle at the time of delivery in the space provided therefor on the certificate, and cause the certificate and assignment to be mailed or delivered to the transferee or to the commissioner.  Where title to a vehicle is in the name of more than one person, the nature of the ownership must be indicated by one of the following on the certificate of title:

(1)  TEN ENT (tenants by the entirety);

(2)  JTEN (joint tenants);

(3)  TEN COM (tenants in common); or

(4)  PTNRS (partners); or

(5)  TOD (transfer on death).

(b)  Upon request of the owner or transferee, a lienholder in possession of the certificate of title shall, unless the transfer was a breach of his or her security agreement, either deliver the certificate to the transferee for delivery to the commissioner or, upon receipt from the transferee of the owner's assignment, the transferee's application for a new certificate and the required fee, mail or deliver them to the commissioner.  The delivery of the certificate does not affect the rights of the lienholder under his security agreement.

(c)  If a security interest is reserved or created at the time of the transfer, the certificate of title shall be retained by or delivered to the person who becomes the lienholder, and the parties shall comply with the provisions of section 2043 of this title.

(d)  Except as provided in section 2024 of this title and as between the parties, a transfer by an owner is not effective until the provisions of this section and section 2026 of this title have been complied with; however, an owner who has delivered possession of the vehicle to the transferee and has complied with the provisions of this section and section 2026 of this title requiring action by him or her is not liable as owner for any damages thereafter resulting from operation of the vehicle.

(e)  Notwithstanding other provisions of the law, whenever the estate of an individual who dies intestate consists principally of an automobile, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the same shall automatically and by virtue hereof pass to said surviving spouse.  Registration of the vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00.  This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.

(1)  Notwithstanding other provisions of the law, and except as provided in subdivision (2) of this subsection, whenever the estate of an individual consists in whole or in part of a motor vehicle, and the person's will or other testamentary document does not specifically address disposition of motor vehicles, the surviving spouse shall be deemed to be the owner of the motor vehicle and title to the motor vehicle shall automatically pass to the surviving spouse. Registration and title of the motor vehicle in the name of the surviving spouse shall be effected by payment of a transfer fee of $7.00.  This transaction is exempt from the provisions of the purchase and use tax on motor vehicles.

(2)  This subsection shall apply to no more than two motor vehicles, and shall not apply if the motor vehicle is titled in the name of one or more persons other than the decedent and the surviving spouse.

(f)  Where the title identifies a person who will become the owner upon the death of the principal owner (transfer on death), the principal owner shall have all rights of ownership and rights of transfer until his or her death.  The designated transferee shall have no rights of ownership until such time as the principal owner has died as established by a valid death certificate.  At that time, the transferee shall become the owner of the vehicle subject to any existing security interests.

Sec. 6.  EFFECTIVE DATE

Sec. 2 of this act shall only apply to the estates of persons dying after September 1, 2008.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 18, 2008, page 600.)

H. 290

An act relating to legislative appointments to the human rights commission.

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

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.  30 V.S.A. § 7001(4) is amended and (11), (12), (13), and (14) are added to read:

(4)  "Excavation activities" means activities involving the removal of earth, rock or other materials in the ground, disturbing the subsurface of the earth, or the demolition of any structure, by the discharge of explosives or the use of powered or mechanized equipment, including but not limited to digging, trenching, blasting, boring, drilling, hammering, post driving, wrecking, razing, or tunneling, within 100 feet of an underground utility facility.  Excavation activities shall not include the tilling of the soil for agricultural purposes, routine gardening outside easement areas and public rights-of-way, activities relating to routine public highway maintenance, or the use of hand tools by a company, or the company’s agent or a contractor working under the agent’s direction, to locate or service the company’s facilities, provided the company has a written damage prevention program.

(11)  “Powered or mechanized equipment” means equipment that is powered or energized by any motor, engine, or hydraulic or pneumatic device and that is used for excavation or demolition work.

(12)  “Hand tools” means tools powered solely by human energy.

(13)  “Verified” means the location and depth has been physically determined.

(14)  “Damage prevention program” means a program established to ensure employees involved in excavation activities are aware of and utilize appropriate and safe excavating practices.

Sec. 2.  30 V.S.A. § 7004(e) is added to read:

(e)  Notice of excavation activities shall be valid for an excavation site until one of the following occurs:

(1)  The excavation is not completed within 30 days of the notification;

(2)  The markings become faded, illegible, or destroyed; or

(3)  The company installs new underground facilities in a marked area still under excavation.

Sec. 3.  30 V.S.A. § 7006b is amended to read:

§ 7006b.  EXCAVATION AREA PRECAUTIONS

Any person engaged in excavating activities in the approximate location of underground utility facilities marked pursuant to section 7006 of this title shall take reasonable precautions to avoid damage to underground utility facilities, including but not limited to any substantial weakening of the structural or lateral support of such facilities or penetration, severance or destruction of such facilities.  When excavation activities involve horizontal or directional boring, the person engaged in excavation activities shall expose underground facilities to verify their location and depth, in a safe manner, at each location where the work crosses will cross a facility and at reasonable intervals when paralleling an underground facility.  Powered or mechanized equipment may only be used within the approximate location where the facilities have been verified.

Sec. 4.  30 V.S.A. § 7008 is amended to read:

§ 7008.  PENALTIES

(a)  Vermont Digsafe Program.  Any person who violates any provisions of sections 7004, 7006a, 7006b, or 7007 of this title shall be subject to a civil penalty of up to $1,000.00, in addition to any other remedies or penalties provided by law or any liability for actual damages.  Notices of probable violation shall be issued within 12 months from the date the department receives the underground facility damage report, unless an ongoing investigation requires an extension of time.

(b)  Any company which does not mark the location of its underground facilities as required by section 7006 or 7006a of this title shall be subject to a civil penalty of up to $1,000.00.  Notices of probable violation shall be issued within 12 months from the date the department receives the underground facility damage report, unless an ongoing investigation requires an extension of time.

* * *

(e)  Any person who violates any provisions of sections 7004 through 7007 of this title as to an underground gas distribution or transmission facility shall also be subject to the civil penalties described in section 2816 of this title.  However, a person who has been assessed a civil penalty pursuant to section 2816 of this title shall not be subject to the payment of an assessed penalty under the provisions of this section for the same violation.

Sec. 5.  30 V.S.A. § 2816(a) is amended to read:

(a)  Gas Pipeline Safety Program.  Any person who violates any statute, rule, regulation or order of the public service board relating to safety standards or safety practices applicable to transportation of gas through gas pipeline facilities subject to the jurisdiction of the public service board is subject to a civil penalty of not more than $10,000.00 $100,000.00 for each violation for each day that the violation persists.  However, the maximum civil penalty shall not exceed $500,000.00 $1,000,000.00 for any related series of violations.  The penalty may be imposed by the board after notice to the offending person of the alleged violations and opportunity for hearing.

Sec. 6.  REPEAL

30 V.S.A. § 7004(d)(2) is repealed January 1, 2010.

After passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO THE VERMONT DIG SAFE PROGRAM AND THE FEDERAL GAS PIPELINE SAFETY PROGRAM.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for April 17, 2007, page 612.)

H. 306

An act relating to telemarketing.

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

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

First:  In Sec. 1, 9 V.S.A. § 2464(a)(1)(B), at the end after the period by adding Isolated and inadvertent failure to comply with this record-keeping requirement shall not give rise to liability under this subsection, provided that the telemarketer has in place reasonable procedures designed to comply with this requirement.

Second:  By adding a new section, to be Sec. 2, to read as follows:

Sec. 2.  9 V.S.A. § 2464(a)(4) is amended to read:

(4) "Telemarketer" means any person who initiates telephone calls to, or who receives telephone calls from, a consumer in connection with a plan, program, or campaign to market goods or services. The term "telemarketer" does not include:

* * *

(C)  Any person who initiates telephone calls to or who receives telephone calls from a consumer in connection with collection of an amount due for goods or services previously provided to the consumer.

(D)  Any other category of persons that the attorney general may exempt by rule consistent with the purposes of this section.

and by renumbering the subsequent sections to be numerically correct

Third:  In the new Sec. 4, in 9 V.S.A. § 2464(e), in the introductory language by striking out the following: “federally-insured” and inserting in lieu thereof the following: federally insured and by striking out subdivision (1) in its entirety and inserting in lieu thereof a new subdivision (1) to read as follows:

(1)  fail to obtain, before processing the transaction, any prior written authorization required by subdivision (b)(2) of this section or any tape recording or copy of a written confirmation required by subdivision (b)(3) of this section as part of the consumer’s express oral authorization; or

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 18, 2008, page 612.)

H. 330

An act relating to repeal of the law relating to municipal trailer park ordinances.

Reported favorably with recommendation of proposal of amendment by Senator Snelling for the Committee on Natural Resources and Energy.

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.  REPEAL

(a)  As of July 1, 2008, subchapter 9 of chapter 61 of Title 24, relating to municipal ordinances for trailer parks, is repealed.

(b)  A municipal ordinance adopted under subchapter 9 of chapter 61 of Title 24 prior to July 1, 2008 shall remain in effect until July 1, 2010, unless repealed by the municipality prior to that date.

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for April 2, 2007, page 790.)

H. 436

An act relating to miscellaneous amendments to local election and municipal government laws.

Reported favorably with recommendation of proposal of amendment by Senator White 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.  3 V.S.A. § 2473a(e) is amended to read:

(e)  The receipt and expenditure of moneys from the revolving fund shall be under the supervision of the business manager and at the direction of the publisher, subject to the provisions of this section.  Vermont Life magazine shall maintain accurate and complete records of all receipts and expenditures by and from the fund, and shall make an annual report on the condition of the fund to the secretary of the agency, who shall in turn provide the report to the secretary of administration.  The fund shall be audited annually by the auditor of accounts.

Sec. 2.  7 V.S.A. § 805 is amended to read:

§ 805.  -AUDIT OF OPERATIONS

On or before February 28 of each year, each state college and university licensed under this chapter shall submit a financial report on its operations under this chapter to audit by the state auditor of accounts. Such audit shall examine the financial condition and operation of such licensees for the preceding calendar year and shall be submitted to the liquor control board by April 1 of each year.

Sec. 3.  16 V.S.A. § 2177(b) is amended to read:

(b)  The books and accounts financial statements of the corporation shall be audited annually as of June 30 under the supervision of the auditor of accounts who shall publish the audit report in detail by an independent public accounting firm registered in Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO).  The auditor of accounts or his or her designee shall be the state’s nonvoting representative to an audit committee established by the board

Sec. 4.  16 V.S.A. § 2281 is amended to read:

§ 2281.  ANNUAL AUDIT; REPORTS; CONTROL OF FUNDS

(a)  The books and accounts of the University of Vermont and State Agricultural College shall be audited annually as of June 30, under the supervision of the auditor of accounts.  The report of such audit shall be published in detail by the auditor of accounts by an independent accounting firm registered in the state of Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO).  The auditor of accounts or his or her designee shall be the state’s nonvoting representative to an audit committee established by the board

* * *

(f)  Control of funds appropriated and of the work carried on under the terms of section 2321 of this title shall be vested in the board of trustees of the University of Vermont and State Agricultural College.  The University of Vermont and State Agricultural College shall provide an accounting service which shall account for the expenditure of funds by divisions and shall make an annual financial report to the governor of the state.  All funds appropriated to the agricultural college shall be kept in a separate account and shall be audited annually by the auditor of accounts an independent accounting firm registered in the state of Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO).

Sec. 5.  16 V.S.A. § 2835 is amended to read:

§ 2835.  CONTROLS, AUDITS, AND REPORTS

Control of funds appropriated and all procedures incident to the carrying out of the purposes of this chapter shall be vested in the board.  The books of account of the corporation shall be audited annually under the direction of the auditor of accounts by an independent public accounting firm registered in the state of Vermont in accordance with government auditing standards issued by the United States Government Accountability Office (GAO) and a the resulting audit report filed with the secretary of administration not later than November 1 each year.  The auditor of accounts or his or her designee shall be the state’s nonvoting representative to an audit committee established by the board.  Biennially, the board shall report to the legislature on its activities during the preceding biennium.

Sec. 6.  17 V.S.A. § 2353(a) is amended to read:

(a)  The name of any person shall be printed upon the primary ballot as a candidate for nomination by any major political party for any office indicated, if petitions containing the requisite number of signatures made by legal voters, in substantially the following form, are filed with the proper official, together with the person's written consent to having his or her name printed on the ballot:

STATE OF VERMONT

County of  .......................... )

ss.

City (town) of  .................... )

 

I join in a petition to place on the primary ballot of the .............................................................. party the name of  ........................................................., whose residence is in the (city), (town) of  ............................................... in the county of ............................................., for the office of  ………………............................. to be voted for on Tuesday, the  .................................. day of September, 20  ..................; and I certify that I am at the present time a registered voter and am qualified to vote for a candidate for this office.

Sec. 7.  17 V.S.A. § 2402 is amended to read:

§ 2402.  REQUISITES OF STATEMENT

(a)  A statement of nomination shall contain:

* * *

(4)  In the case of nomination for president or vice president of the United States, the name and state of residence of each candidate for such office, together with the name, town of residence, and correct mailing address of each nominee for the office of elector.  The statement of nomination shall include certification by the town clerk of each town where the signers appear to be voters that the persons whose names appear as signers of the statement are registered voters in the town and of the total number of valid signers from the town.  Only the number of signers certified by each town clerk shall count toward the required number of signatures.  The statement shall also be accompanied by a consent form from each nominee for elector.  The consent form shall be similar to the consent form prescribed in section 2361 of this title.

(b)  To constitute a valid nomination, a statement shall contain signatures of voters qualified to vote in an election for the office in question, equal in number to at least:

(1)  For presidential and vice presidential offices, 1,000;

(2)  For state and congressional offices, 250 500;

* * *

(c)  A statement shall state that each signer is qualified to vote in an election for the office in question and that the voter's residence is as set forth next to the voter's name.  Every statement of nomination shall include the certificate of the town clerk where the signers appear to be voters, certifying whether the persons whose names appear as signers of the statement are registered voters in the town.  Only those names certified by the town clerk to be those of registered voters of the town shall count toward the required number of signatures.

(d)  A statement of nomination and a completed and signed consent form shall be filed not later than the time for filing the statements prescribed in section 2386 of this title sooner than the first Monday in June and not later than the third day after the primary election.  No public official receiving nominations shall accept a petition unless a completed and signed consent form is filed at the same time.

(e)  The secretary of state shall prescribe and furnish forms for a statement of nomination.

Sec. 8.  17 V.S.A. § 2456 is amended to read:

§ 2456.  DISQUALIFICATIONS

Notwithstanding the preceding sections of this subchapter, no person shall serve as an election official in any election in which his or her name appears on a ballot of the Australian ballot system as a candidate for any office unless he or she is the only candidate for that office, or unless the office for which he or she is a candidate is that of moderator, justice of the peace, town clerk,

clerk-treasurer, treasurer, ward clerk, or inspector of elections.  When an Australian ballot is not used, a person shall not serve as an election official during the election to fill any office for which he or she is a nominee.  For the purpose of this section, "clerk-treasurer" means a person who is a candidate for the offices of town clerk and town treasurer at the same time.

Sec. 9.  17 V.S.A. § 2494 is amended to read:

§ 2494.  CONSTRUCTION WITH OTHER LAWS

Except as this subchapter affects the method of registering votes and ascertaining the result, the laws of this state pertaining to elections shall be applicable.  The laws pertaining to early or absentee voters shall in no way be affected by this subchapter, and votes cast by early or absentee voters shall be counted with votes registered on voting machines.  In towns using voting machines, the board of civil authority may vote to open polling places at 5:00 a.m., provided that at least three elections officials are present, two of whom are from different parties, solely for the purpose of checking voters who voted by early voter absentee ballot off the checklist and depositing the ballots into the ballot box or voting machine.  If all early voter absentee ballots have not been deposited into the voting machines before the closing of the polls at 7:00 p.m., the elections officials shall continue to deposit ballots using the same procedure as provided in subsection 2561(b) of this title, treating each ballot as a voter waiting to cast his or her ballot at the close of the polls.

Sec. 10.  17 V.S.A. § 2561(a) is amended to read:

(a)  At all elections using the Australian ballot system, the polls shall may open no earlier than 5:00 a.m. and shall open no later than 10:00 a.m. as set by the board of civil authority in each town unless the board of civil authority has elected to open the polls earlier than 6:00 a.m. as provided in section 2494 of this title.  The polls in all polling places shall close at 7:00 p.m.

Sec. 11.  17 V.S.A. § 2640(c) is amended to read:

(c)  In a town which starts its annual meeting on any day before the first Tuesday in March and which uses the Australian ballot system, Notwithstanding section 2508 of this title, public discussion of ballot issues and all other issues appearing in the warning, other than election of candidates, shall be permitted on that day at the annual meeting, regardless of the location of the polling place.

Sec. 12.  17 V.S.A. § 2664 is amended to read:

§ 2664.  BUDGET

A town shall vote such sums of money as it deems necessary for the interest of its inhabitants and for the prosecution and defense of the common rights.  It shall express in its vote the specific amounts, or the rate on a dollar of the grand list, to be appropriated for laying out and repairing highways and for other necessary town expenses.  If a town votes specific amounts in lieu of a rate on a dollar of the grand list, the selectmen selectboard shall, after the grand list book has been computed and lodged in the office of the town clerk, set the tax rate necessary to raise the specific amounts voted.  The selectboard may apply for grants and may accept and expend grants or gifts above those which are approved in the town budget.  The selectboard shall include, in its annual report, a description of all grants or gifts accepted during the year and associated expenditures.

Sec. 13.  17 V.S.A. § 2680 is amended to read:

§ 2680.  AUSTRALIAN BALLOT SYSTEM; GENERAL

* * *

(c)  Budgets.  A vote whether to use the Australian ballot system to establish the budget shall be in substantially the following form:

"Shall (name of municipality) adopt its budget article or articles by Australian ballot?"

If a budget voted on by Australian ballot is rejected, the legislative body shall prepare a revised budget.  The legislative body shall establish a date for the vote on the revised budget, and shall take appropriate steps to warn a public informational meeting on the budget and the vote.  The date of the public informational meeting shall be at least five days following the public notice. The date of the vote shall be at least seven days following the public notice. The vote on the revised budget shall be by Australian ballot and shall take place in the same locations that the first vote was taken.  The budget shall be established if a majority of all votes cast are in favor.  If the revised budget is rejected, the legislative body shall repeat the procedure in this subsection until a budget is adopted.  Once a municipality votes to establish its budget by the Australian ballot system, the vote on the budget shall be taken by Australian ballot until the municipality votes to discontinue use of the system.

* * *

(g)  Whenever a municipality has voted to adopt the Australian ballot system of voting on any public question or budget, except the budget revote as provided in subsection (c) of this section, the legislative body shall hold a public informational hearing on the question by posting warnings at least 10 days in advance of the hearing in at least two public places within the municipality and in the town clerk's office.  The hearing shall be held within the 10 days preceding the meeting at which the Australian ballot system is to be used.  The hearing under this subsection may be held in conjunction with the meeting held under subsection 2640(c), in which case the moderator shall preside.

Sec. 14.  19 V.S.A. § 13 is amended to read:

§ 13.  Central garage fund

* * *

(f)  Annually the auditor of accounts shall conduct an examination of the central garage revolving fund and report his or her findings in accordance with 32 V.S.A. § 163(5).

(g)  [Repealed.]

(h)  For purposes of this section, “equipment” means registered motor vehicles and highway maintenance equipment assigned to the central garage.

(i)(g)  Each year at the September meeting of the joint transportation oversight committee called pursuant to 19 V.S.A. § 12b(d), the agency shall present to the joint transportation oversight committee a report detailing:

* * *

Sec. 15.  20 V.S.A. § 3546 is amended to read:

§ 3546.  INVESTIGATION OF VICIOUS DOMESTIC PETS OR WOLF-HYBRIDS; ORDER

* * *

(d)  The procedures provided in this section shall only apply if the domestic pet or wolf-hybrid is not a rabies suspect.  If a member of the legislative body or a municipal official designated by the legislative body determines that the animal is a rabies suspect, the provisions of subchapter 5 of this chapter and the rules of the department of health shall apply.

(e)  The procedures provided in this section shall not apply if the voters of a municipality, at a special or annual meeting duly warned for the purpose, have authorized the legislative body of the municipality to regulate domestic pets or wolf-hybrids by ordinances that are inconsistent with this section, in which case those ordinances shall apply.

Sec. 16.  20 V.S.A. § 3549 is amended to read:

§ 3549.  DOMESTIC PETS OR WOLF-HYBRIDS, REGULATION BY TOWNS

The legislative body of a city or town by ordinance may regulate the keeping, leashing, muzzling, restraint, impoundment, and destruction of domestic pets or wolf-hybrids and their running at large.

Sec. 17.  22 V.S.A. § 281 is amended to read:

§ 281.  MEMBERS AND TRUSTEES EX OFFICIO

The secretary of state, auditor of accounts and the state librarian, by virtue of their offices, shall be members of the Vermont Historical Society and of the board of trustees thereof.

Sec. 18.  24 V.S.A. § 871 is amended to read:

§ 871.  ORGANIZATION OF SELECTMEN SELECTBOARD; APPOINTMENTS

Forthwith after their election and qualification, the selectmen selectboard shall organize and elect a chairman chair and, if so voted, a clerk from among their number, and file a certificate of such election for record in the office of the town clerk.  Such selectmen shall The selectboard shall thereupon appoint from among the legally qualified voters a tree warden and may thereupon appoint from among the legally qualified voters the following officers who shall serve until their successors are appointed and qualified, and shall certify such appointments to the town clerk who shall record the same:

(1)  Three fence viewers;

(2)  A poundkeeper, for each pound; voting residence in the town need not be a qualification for this office provided appointee gives his or her consent to the appointment;

(3)  One or more inspectors of lumber, shingles and wood; and

(4)  One or more weighers of coal; and

(5)  A tree warden.

* * *

Sec. 19.  24 V.S.A. § 2291(10) is amended to read:

§ 2291.  ENUMERATION OF POWERS

For the purpose of promoting the public health, safety, welfare, and convenience, a town, city, or incorporated village shall have the following powers:

* * *

(10)  To regulate the keeping of dogs, and to provide for their leashing, muzzling or, restraint, impoundment, and destruction.

* * *

Sec. 20.  24 V.S.A. § 4442(c) is amended to read:

(c)  Routine adoption.

(1)  A bylaw, bylaw amendment, or bylaw repeal shall be adopted by a majority of the members of the legislative body at a meeting that is held after the final public hearing, and shall be effective 21 days after adoption unless, by action of the legislative body, the bylaw, bylaw amendment, or bylaw repeal is warned for adoption by the municipality by Australian ballot at a special or regular meeting of the municipality.

(2)  However, a rural town with a population of fewer than 2,500 persons, by action of the legislative body or by vote of that town at a special or regular meeting duly warned on the issue, may elect to require that bylaws, bylaw amendments, or bylaw repeals shall be adopted by vote of the town by Australian ballot at a special or regular meeting duly warned on the issue.  That procedure shall then apply until rescinded by the voters at a regular or special meeting of the town.

Sec. 21.  29 V.S.A. § 160(e) is amended to read:

(e)  The commissioner of buildings and general services shall supervise the receipt and expenditure of moneys comprising the property management revolving fund, subject to the provisions of this section.  He or she shall maintain accurate and complete records of all such receipts and expenditures, and shall make an annual report on the condition of the fund to the secretary of administration.  All balances remaining at the end of a fiscal year shall be carried over to the following year, and the fund shall be audited by the auditor of accounts.

Sec. 22.  29 V.S.A. § 168(b)(8) is amended to read:

(8)  All balances remaining at the end of a fiscal year shall be carried over to the following year, and the auditor of accounts shall audit the fund.

Sec. 23.  32 V.S.A. § 163 is amended to read:

§ 163.  DUTIES OF THE AUDITOR OF ACCOUNTS

In addition to any other duties prescribed by law, the auditor of accounts shall:

(1)  Examine annually the financial statements of the funds of state government and at his or her discretion audit financial and other records Annually perform or contract for the audit of the basic financial statements of the state of Vermont and, at his or her discretion, conduct governmental audits as defined by governmental auditing standards issued by the United States Government Accountability Office (GAO), of every department, institution, and agency of the state including trustees or custodians of retirement and other trust funds held by the state or any officer or officers of the state, and also including every county officer who receives or disburses funds of the state or for the benefit of the state or any county.  He or she shall upon request of a town establish a uniform system of accounting and reporting.

(2)  In his or her discretion, conduct a continuing post audit of all disbursements made through the office of the commissioner of finance and management or the office of the state treasurer, including disbursements to a municipality, school supervisory union, school district, or county.

* * *

(4)  Upon request, assist the commissioner of finance and management in the preparation of the state budget.

(5)  From time to time, as examinations audits are completed, report his or her audit findings first to the speaker of the house of representatives and the president pro tempore of the senate, then to the governor, the secretary of administration, the commissioner of finance and management, and the head of the department, institution, or agency covered by the report.  The audit reports shall be public records and four 10 copies of each report shall be furnished to and kept in the state library for public use.

(6)(5)  Make special audits of any department, institution, and agency as the governor may from time to time require.

(7)(6)  Make a biennial report Report on or before February 15 of each year to the general assembly house and senate committees on appropriations in which he or she shall summarize his or her significant findings, and make such comments and recommendations as he or she finds necessary.

(8)(7)  Subject to the provisions of chapter 13 of Title 3, employ and set the compensation of such assistants, clerical or otherwise, as he or she deems necessary for the proper and efficient administration of his or her office.  However, he or she shall not expend or authorize expenditure of funds for his or her office in excess of the amount appropriated for his or her office in any fiscal year.

(9)  Approve and coordinate all requests by state departments, agencies, commissions and state-created authorities for accounting or auditing services by an independent accounting firm for any of the departments’, agencies’, commissions’ or state-created authorities’ funds, financial accounts, and records, or for any accounting or auditing services for which payment is to be made from any funds controlled or administered by any state department, agency, commission or state-created authority, prior to the negotiation of any contractual obligations with the independent firms.  All audit reports and reports of findings and recommendations issued by an independent accounting firm under this section shall be addressed to the auditor of accounts for distribution in accordance with subdivision 5 of this section.

(10)(8)  Require all state departments and agencies to file with the auditor of accounts all audit reports and reports of findings and recommendations received as a result of audits and examinations conducted by or for any federal agency.

(11)(9)  Perform, or contract with independent public accountants licensed in the state of Vermont to perform, financial and compliance audits as required by the Federal Single Audit Act of 1984, 31 U.S.C. § 7501 et seq. This subdivision shall not apply to the University of Vermont and the Vermont State Colleges.

(12)(A)  Biennially audit the economic advancement tax incentives program established under chapter 151, subchapter 11E of this title to determine compliance with that subchapter and all other applicable statutes and regulations.  The auditor’s report shall be made available to the general assembly during the fourth quarter of the second year of each biennium. The auditor shall include in this biennial audit verifications of any of the inspections done by the tax department of awardees of economic advancement tax incentives to determine the relationship between performance and credits claimed.

(B)(10)  Biennially audit the Vermont employment growth incentive program established under 32 V.S.A. § 5930b and other applicable statutes and regulations, and report the audit to the general assembly, the Vermont department of taxes, and the Vermont economic progress council by March 31 after the audit yearThe audit shall include a comparative examination of the economic advancement tax incentive program and the Vermont employment growth incentives program with respect to performance measurements, program expenditure controls, the adequacy and availability of program information, and recommendations for improved accountability and fiscal controls.  The auditor shall develop benchmarks, known as “best management practices” that in the judgment of the auditor need to be met so that the Vermont employment growth incentives program may be administered in the most fiscally sound and well-managed manner.  The auditor’s report shall be submitted during the first quarter of the second year of each biennium to the department of taxes and the economic incentive review board established by 32 V.S.A. § 5930a(a) (except that in the second year of the 2007-2008 biennium the auditor’s report shall be submitted to the Vermont economic progress council).  The department and the board (and in the 2007-2008 biennium, the council) shall review the auditor’s report and in the fourth quarter of each biennium report to the senate committee on economic development, housing and general affairs, the senate committee on finance, the house committee on commerce and the house committee on ways and means in response to the findings and recommendations of the auditor together with any recommendations for improvements or amendments.

Sec. 24.  32 V.S.A. § 167(a) is amended to read:

(a)  For the purpose of examination and audit authorized by law, all the records, accounts, books, papers, reports, and returns in all formats of all departments, institutions, and agencies of the state including the trustees or custodians of trust funds and all municipal, school supervisory union, school district, and county officers who receive or disburse funds for the benefit of the state, shall be made available to the auditor of accounts.  It shall be the duty of each officer of each department, institution, and agency of the state or municipality, school supervisory union, school district, or county to provide the records, accounts, books, papers, reports, returns, and such other explanatory information when required by the auditor of accounts.

Sec. 25.  32 V.S.A. § 431(a) is amended to read:

(a)  The treasurer, the auditor and the governor shall select the banks in which the funds of the state treasury shall be deposited.  Each agency or department of the state shall be required to obtain the approval of the treasurer to establish and maintain a bank account of a selected bank as well as develop procedures, approved by the treasurer, to reconcile a bank account.  The treasurer shall annually furnish the auditor, on a timely basis, a certified statement from each bank, with which he or she has an account, of the amount of such account.

Sec. 26.  32 V.S.A. § 432 is amended to read:

§ 432.  MANAGEMENT OF INVESTED STATE MONEY

In the management of funds and securities belonging to the state or held in the treasury, with approval of the governor and auditor of accounts, he or she may change the form of investment thereof by exchange of securities or by sale and reinvestment of the same, as may be required for the safety and permanent security of such funds, may collect accruing interest and reinvest the same and may collect, enforce payment of, and reinvest all maturing securities and obligations and, for such purposes, may make legal transfers of the title of the same.

Sec. 27.  32 V.S.A. § 901 is amended to read:

§ 901.  BORROWING MONEY

The treasurer shall not make a contract binding the state for money borrowed unless it is countersigned by the secretary of state and the auditor.

Sec. 28.  32 V.S.A. § 1001(d)(1) is amended to read:

(1)  Membership.  Committee membership shall consist of:

(A)  As ex officio members:

(i)  the state treasurer;

(ii)  the auditor of accounts;

(iii)  the secretary of administration; and

(iv)(iii)  the secretary of the Vermont municipal bond bank.

(B)  One individual not an official or employee of state government appointed by the governor for a two-year term.

(C)  The auditor of accounts who shall be a nonvoting ex officio member.

Sec. 29.  32 V.S.A. § 1671(a)(6) is amended to read:

(6)  Notwithstanding any other provision of law to the contrary, for the recording or filing, or both, of any document that is to become a matter of public record in the town clerk's office, or for any certified copy of such document, a fee of $8.00 per page shall be charged; except that for the recording or filing, or both, of a property transfer return, a fee of $8.00 shall be charged;

Sec. 30.  32 V.S.A. § 4774(b) is amended to read:

(b)(1)  The treasurer or collector shall deposit to the general fund any tax overpayment by a taxpayer who has paid by mail or electronic fund transfer, provided that:

(1)(A)  the payment made was equal to the taxes due without regard to the discount under section 4773 of this title; and

(2)(B)  the overpayment amount is $2.00 $10.00 or less.

(2)  If the taxpayer requests refund of such an overpayment within one year of payment, the treasurer or collector shall refund it.

Sec. 31.  32 V.S.A. § 5137 is amended to read:

§ 5137.  RECORDING DELINQUENT PAYMENTS

A collector of taxes for a town or municipality within it shall receipt for every payment made to the collector on account of delinquent taxes.  Such receipt shall be written in triplicate in a bound book or other permanent record purchased at the expense of the municipality and shall indicate the date of the payment, the name of the person making the payment, the name of the person against whom was assessed the tax on which the payment is to be applied, the year in which such tax was assessed and if a partial payment on an annual tax bill, whether applied on poll, personal property or real estate taxes.  Such collector shall detach and deliver the original receipt forthwith to the person making the payment and one copy thereof within 30 days to the town clerk who shall keep such copy on file.  Such collector shall purchase at the expense of the municipality for which the collector is acting a sufficient number of such bound triplicate receipt books having the sets of originals and copies consecutively numbered.  Annually, on or before February 5, the collector shall deliver to the auditors of each municipality for which the collector is acting all such bound volumes in which entries pertaining to such municipality have been made during the year ending January 31 next preceding, and the auditors shall audit the books forthwith and after the completion of audit shall return such books to such collector.

Sec. 32.  REPEAL

(a)  10 V.S.A. § 1960(f) (annual audit of advisory committee books) shall be repealed.

(b)  32 V.S.A. § 163(10) (biennial audit of employment growth incentive program) shall be repealed on December 31, 2012.

Sec. 33.  EFFECTIVE DATE

Secs. 6 and 7 shall take effect upon passage.

and that upon passage, the title of the bill shall read:

“AN ACT RELATING TO MISCELLANEOUS AMENDMENTS TO ELECTION AND GOVERNMENT LAWS

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for March 19, 2008, page 635; March 20, 2008, page 649.)

H. 515

An act relating to the collection and disposal of mercury-added thermostats.

Reported favorably with recommendation of proposal of amendment by Senator McCormack for the Committee on Natural Resources and Energy.

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.  FINDINGS

The general assembly finds:

(1)  According to a 2004 study by the U.S. Environmental Protection Agency, titled “International Mercury Market Study and the Role and Impact of U.S. Environmental Policy,” more than 10 percent of the estimated mercury reservoir in the United States is in thermostats.

(2)  In 2000, thermostat manufacturers General Electric, Honeywell, and White Rodgers established the Thermostat Recycling Corporation (TRC) that runs the program for collecting mercury‑containing thermostat discarded in Vermont.  Under the TRC program, thermostat wholesalers volunteer to place bins where heating, ventilation, and air‑conditioning (HVAC) contractors can discard thermostats.

(3)  The manufacturers of mercury‑containing thermostats, with the cooperation of the agency of natural resources, should be encouraged to submit a single unified plan for the collection of mercury‑containing thermostats, the cost of which should be appropriately apportioned between participating manufacturers.

Sec. 2.  10 V.S.A. § 7102 is amended to read:

§ 7102.  Definitions

As used in this chapter:

* * *

(6)(A)  “Manufacturer” means any person, firm, association, partnership, corporation, governmental entity, organization, combination, or joint venture that (i) produces a mercury‑added product, or (ii) serves as an importer or domestic distributor of a mercury‑added product produced outside the United States.

(B)  This definition shall not apply to retailers for whom importing is not their primary business.

(C)  In the case of a multi‑component mercury‑added product, the manufacturer is the last manufacturer to produce or assemble the product.

(D)  In the case of mercury‑containing thermostats, the manufacturer is the original equipment manufacturer.

* * *

(16)  “Mercury‑containing thermostat” means a product or device that uses a  mercury switch to sense and control room temperature through communication with heating, ventilating, or air‑conditioning equipment.  “Mercury‑containing thermostat” includes thermostats used to sense and control room temperature in residential, commercial, industrial, and other buildings but does not include a thermostat used to sense and control temperature as part of a manufacturing process.

(17)  “Person” means any individual, corporation, partnership, cooperative, association, firm, sole proprietorship, governmental agency, or other entity.

(18)  “Thermostat retailer” means a person who sells thermostats of any kind directly to homeowners or other nonprofessionals through any selling or distribution mechanism, including but not limited to sales using the internet or catalogues.  A retailer may also be a wholesaler if it meets the definition of wholesaler.

(19)  “Thermostat wholesaler” means a person that is engaged in the distribution and wholesale sale of heating, ventilation, and air‑conditioning components to contractors who install heating, ventilation, and air‑conditioning components.

Sec. 3.  10 V.S.A. § 7107 is amended to read:

§ 7107.  DISCARDED MERCURY‑ADDED PRODUCTS

(a)  Management of discarded mercury‑added products.  After July 1, 2007, discarded mercury‑added products, except for mercury‑added button cell batteries, products containing mercury‑added button cell batteries as their only mercury‑added components, and photographic film shall be managed as provided in this section.

(1)  Disposal ban.  No person shall knowingly dispose of mercury‑added products in a solid waste landfill or combustor.

(2)  Source separation.  Except as otherwise provided by this section, every person who discards solid waste shall separate mercury‑added products from that solid waste for management as hazardous waste or universal hazardous waste, according to all applicable state and federal regulations.  Any contractor who replaces or removes mercury‑added products shall assure that any discarded mercury‑added product is subject to proper separation and management as a hazardous waste or universal hazardous waste.  Any contractor who replaces a mercury‑containing thermostat from a building shall deliver the mercury‑containing thermostat to an appropriate collection location for recycling.
* * *

(d)  Removal of mercury‑added components.  The agency shall conduct a study and make recommendations for requirements to remove effectively and feasibly mercury‑added components in products prior to disposal or recycling processes.  This report shall identify removal and collection systems at public and private solid waste management facilities and salvage businesses, manufacturer‑sponsored or operated collection and take‑back programs; and other feasible programs.  The agency will identify costs mechanisms for financing such programs.  The study shall address removal and collection of mercury‑added components in automobiles and the collection of switches, relays, and gauges in home appliances, heating devices, and other equipment.  The agency shall report to the general assembly no later than January 15, 2006.  The agency shall conduct a study, and in consultation with the advisory committee on mercury pollution, make recommendations on methods to increase recycling of mercury thermostats.  The study shall identify incentive‑based programs and other feasible programs, including costs and mechanisms for financing such programs. The agency shall report to the general assembly no later than January 15, 2008.

* * *

Sec. 4.  10 V.S.A. § 7116 is added to read:

§ 7116.  MERCURY‑CONTAINING THERMOSTATS

(a)  Manufacturer responsibility.  Each thermostat manufacturer that has offered for final sale, sold at final sale, or has distributed mercury containing thermostats in Vermont shall, individually or collectively:

(1)  Not later than October 1, 2008 submit a plan to the agency for approval that describes a collection and financial incentive program for mercury thermostats.  The program contained in this plan shall ensure that the following take place:

(A)  that an effective education and outreach program shall be developed and shall be directed toward wholesalers, retailers, contractors, and homeowners.  There shall be no cost to thermostat wholesalers or thermostat retailers for education and outreach materials. 

(B)  that handling and recycling of mercury‑containing thermostats are accomplished in a manner that is consistent with the provisions of the universal waste rules adopted by the secretary.

(C)  that containers for mercury‑containing thermostat collection are provided to all thermostat wholesalers.  The cost to thermostat wholesalers shall be limited to an initial, reasonable one‑time fee per container as specified in the plan.

(D)  that collection systems are provided to all collection points registered pursuant to subdivision (d)(3) of this section.  Collection systems can include individual product mail back or multiple collection containers.  The cost to registered collection points shall be limited to an initial, reasonable one‑time fee per container as specified in the plan.

(E)  that a financial incentive is established with a minimum value of $5.00 for the return of each mercury‑containing thermostat to a thermostat wholesaler by a contractor or service technician.  The financial incentive shall be in the form of cash or coupons that are redeemable by the contractor or service technician.

(F)  that a financial incentive is established with a minimum value of $5.00 to homeowners or non‑professionals for the return of each mercury‑containing thermostat to a collection point registered with the agency.  The financial incentive shall be in the form of cash or in the form of a coupon that can be redeemed for cash from the manufacturer or can redeemed for a credit toward purchase of general merchandize in the retail location where the thermostat was returned.

(G)  mechanisms to protect against the fraudulent return of thermostats are established.

(2)  No later than April 1, 2009, implement a mercury thermostat collection plan approved by the secretary under subsection (d)(1) of this section.

(3)  Beginning in 2010, submit an annual report to the secretary by April 1 of each year that includes, at a minimum, all of the following:

(A)  The number of mercury‑containing thermostats collected and recycled by that manufacturer pursuant to this section during the previous calendar year.

(B)  The estimated total amount of mercury contained in the thermostat components collected by that manufacturer pursuant to this section.

(C)  An evaluation of the effectiveness of the manufacturer’s collection program and the financial incentive.

(D)  An accounting of the administrative costs incurred in the course of administering the collection and recycling program and the financial incentive plan.

(b)  Thermostat wholesaler and thermostat retailer responsibilities. 
(1)  By April 1, 2009, a thermostat wholesaler shall not offer for final sale, sell at final sale, or distribute thermostats unless the wholesaler:
(A)  acts as a collection site for thermostats that contain mercury.
(B)  promotes and utilizes the collection containers provided by thermostat manufacturers to facilitate a contractor collection program as established by subsection (a) of this section, and all other tasks as needed to establish and maintain a cost‑effective manufacturer collection and financial incentive program.
(2)  By April 1, 2009, a thermostat retailer shall not offer for final sale, sell, or distribute thermostats in the state unless the thermostat retailer participates in an education and outreach program to educate consumers on the collection program for mercury thermostats.

(c)  Sales prohibition.  Beginning April 1, 2009, the following sales prohibitions shall apply to manufacturers, thermostat wholesalers, and thermostat retailers:

(1)  A manufacturer not in compliance with this section is prohibited from offering any thermostat for final sale in the state, selling any thermostat at final sale in the state, or distributing any thermostat in the state.  A manufacturer not in compliance with this section shall provide the necessary support to thermostat wholesalers and thermostat retailers to ensure the manufacturer’s thermostats are not offered for final sale, sold at final sale, or distributed in this state.

(2)  A thermostat wholesaler or thermostat retailer shall not offer for final sale, sell at final sale, or distribute in this state any thermostat of a manufacturer that is not in compliance with this section.

(d)  Agency responsibilities.

(1)  Within 60 days of receipt of a complete application from a manufacturer, the agency shall review and may grant, deny, or approve with modifications a manufacturer plan required by subdivision (a)(1) of this section.  The agency shall not approve a plan unless all elements of subdivision (a)(1) are adequately addressed.  In reviewing a plan, the agency may consider consistency of the plan with collection and financial incentive requirements in other states and consider consistency between manufacturer collection programs.  In reviewing plans, the agency shall ensure that education and outreach programs are uniform and consistent to ensure ease of implementation by thermostat wholesalers and thermostat retailers.

(2)  The agency shall establish a process under which a plan submitted by a manufacturer is, prior to plan approval, available for public review and comment for 30 days.  The agency shall consult with interested persons, including representatives from thermostat manufacturers, environmental groups, thermostat wholesalers, thermostat retailers, service contractors, municipalities, and solid waste districts.

(3)  Registered collection points.  The agency shall maintain and post on the agency of natural resources’ website a list of municipalities, solid waste districts, and thermostat retailers who wish to register as collection points for mercury thermostats.

(4)  Education and outreach.  In conjunction with the educational and outreach programs implemented by manufacturers, the agency shall conduct an education and outreach program directed toward wholesalers, retailers, contractors, and homeowners to promote the collection of discarded mercury‑containing thermostats.

(5)  Report.  By January 15, 2010, and annually thereafter, the agency shall submit a report on the collection and recycling of mercury‑containing thermostats in the state to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy.  The report due in 2010 must include a description and discussion of the financial incentive plan established under this section and recommendations for any statutory changes concerning the collection and recycling of mercury‑containing thermostats.  Subsequent reports must include an evaluation of the effectiveness of the thermostat collection and recycling programs established under this section, information on actual collection rates, and recommendations for any statutory changes concerning the collection and recycling of mercury‑containing thermostats.  These reporting requirements may be combined with other reports on mercury that the agency is required to provide to the general assembly.

(e)  Rate of collection.  By July 1, 2010, the agency shall estimate the number of out‑of‑service thermostats generated in Vermont on an annual basis, in consultation with interested persons, including representatives from thermostat manufacturers, thermostat wholesalers, thermostat retailers, service contractors, environmental groups, municipalities, and solid waste districts.  Beginning July 1, 2011, should collection efforts fail to result in the collection and recycling of at least 50 percent of the out-of-service mercury‑containing thermostats in the state, the agency shall, in consultation with interested persons, require modifications to manufacturers’ collection plans in an attempt to improve collection rates in accordance with these goals.

Sec. 5.  MERCURY ADVISORY COMMITTEE REPORT ON TOXIC SUBSTANCES

(a)  On or before January 15, 2009, the mercury advisory committee shall report to the senate and house committees on natural resources and energy and the house committee on fish, wildlife and water resources regarding expansion of the jurisdiction of the mercury advisory committee to include review of additional toxic substances.  In preparing the report, the committee may consult with interested parties.  The report shall include:

(1)  A summary of existing Vermont programs that identify or address the use of and risks posed by harmful toxic substances.

(2)  A summary of how other states identify and minimize the risk posed by harmful toxic substances.

(3)  A recommendation as to how the jurisdiction of the mercury advisory committee can be expanded to address additional toxic substances.

(4)  When a recommendation is made to expand the jurisdiction of the mercury advisory committee under subdivision (1) of this subsection:

(A)  Recommended toxic substances or categories of toxic substances that should be added to the jurisdiction of the mercury advisory committee;

(B)  Recommended statutory changes to the mercury advisory committee’s statutory charge under 10 V.S.A. § 7113;

(C)  Recommended improvement to the toxic use reduction and hazardous waste reduction programs established under 10 V.S.A. chapter 159;

(D)  A recommended date to which the repeal of the mercury advisory committee should be extended; and

(E)  The estimated cost, if any, of expanding the jurisdiction of the mercury advisory committee.

(b)  For the purposes of this section, the mercury advisory committee shall consist of the members set forth in 10 V.S.A. § 7113(a), the attorney general of Vermont or his or her designee, and a member of a consumer interest group to be appointed by the governor.

(c)  Committee members shall be entitled to payments per diem and expenses as provided under section 1010 of Title 32; and legislative members shall be entitle to payments for per diem and expenses as provided in 2 V.S.A. § 406.

Sec. 6.  SUNSET

Subdivisions 7116(a)(3) (reporting requirement for manufacturers of mercury-containing thermostats) and (d)(4) (agency of natural resources reporting requirement regarding mercury-containing thermostats) of Title 10 shall be repealed on April 2, 2015.

(Committee Vote: 5-0-0)

(No House amendments)

H. 711

An act relating to agricultural forestry, and horticultural education.

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

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

First:  In Sec. 3, subsection (a), by striking out the words “and the department of education shall jointly perform” and inserting in lieu thereof the following:  , the department of education, the Vermont technical college, and the Vermont youth conservation corps jointly shall perform, in consultation with the department of corrections,

Second:  In Sec. 3, subsection (a), after the word “provide” by inserting the words recommendations for

Third:  In Sec. 3, subsection (b), subdivision (5), by striking out words “The need for a statewide specialist to provide” and inserting in lieu thereof the words Options for providing statewide leadership on

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for April 1, 2008, page 805; April 2, 2008, page 848.)


H. 806

An act relating to public water systems.

Reported favorably with recommendation of proposal of amendment by Senator Hartwell for the Committee on Natural Resources.

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.  10 V.S.A. § 1675a is added to read:

§ 1675a.  PERMITTING EXEMPTION

(a)  The requirements of this chapter and the rules adopted under this chapter, except the construction permitting requirements, shall not apply to a public water system that:

(1)  Consists only of distribution and storage facilities and does not have any collection and treatment facilities;

(2)  Obtains all of its water from, but is not owned or operated by, a public water system to which this chapter applies;

(3)  Does not engage in the sale of water to any person.  For purposes of this section and subdivision 203(3) of title 30,  a “sale” of water does not occur when:

(A) the rate charged to the consumer by the receiving water system is the same as the rate charged by the public water system for supplying water to the receiving water system; and

(B) the receiving water system follows the uniform water and sewer disconnect requirements of chapter 129 of title 24, except that section 5147 of title 24 shall not apply and appeals shall be governed by the Vermont rules of civil procedure; and

(4)  Is not a carrier which conveys passengers in interstate commerce;

(5)  Serves less than 500 persons; and

(6)  Is served by a public water system that certifies to the secretary that:

(A)  The receiving public water system is responsible for the repair and maintenance of their own water system unless otherwise agreed to by the wholesale system; and

(B)  The public water system supplying water to the receiving water system is responsible for:

(i)  including the receiving public water system in its water quality sampling plans;

(ii)  providing consumer confidence reports to the receiving system’s users; and

(iii)  issuing public notice to the receiving system’s users if a violation of a drinking water contaminant standard exists or if the secretary determines that a condition exists that may present a risk to public health.

(b)  The water system supplying water to the receiving water system is responsible for the requirements contained in subdivision (a)(6)(B) of this section until 180 days after the water system supplying water to the receiving water system files a notice with the secretary of natural resources and the receiving system of its intent to withdraw from any obligation made under subdivision (a)(6)(B) of this section.

(c)  Notwithstanding the exemption contained in subsection (a) of this section, the secretary of natural resources may take any reasonable steps that are necessary to abate a public health threat at a public water system that is otherwise exempt

Sec. 2.  30 V.S.A. § 203(3) is amended to read:

(3) A company other than a municipality or a water system exempted under the provisions of section 1675a of title 10 engaged in the collecting, sale and distribution of water for domestic, industrial, business or fire protection purposes;

(Committee Vote: 5-0-0)

(For House amendments, see House Journal for February 28, 2008, page 431.)

H. 879

An act relating to the repeal of unnecessary, duplicative, and burdensome reports, the improved timeliness and efficiency of special education audits; and the simplification of union school district formation.

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

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

First:  In Sec. 1, by deleting subdivisions (5) (superintendent’s annual report on hearing and vision tests), (6) (superintendent’s annual report on educational support services), and (8) (commissioner’s report on status of school choice)

Second:  In Sec. 1, by adding 12 new subdivisions to be subdivisions (10) through (21) to read as follows:

(10)  3 V.S.A. § 3026(d) (annual report from the secretary of human services, commissioner of education, and president of the university of Vermont to the legislature and governor regarding partnerships for children, families, and individuals).

(11)  16 V.S.A. § 1049a(d) (commissioner’s annual report to the legislature regarding the high school completion program).

(12)  16 V.S.A. § 2177(d) (the Vermont state colleges’ biennial report to the legislature regarding its activities).

(13)  16 V.S.A. § 2281(c) (the university of Vermont president’s biennial report to the legislature regarding the activities of the university and the state agricultural college).

(14)  16 V.S.A. § 2322 (the state agricultural college dean’s biennial submission of the estimated budget for the college’s research station and a statement of federal and other available funding).

(15)  16 V.S.A. § 2536 (the university of Vermont and state agricultural college trustees’ annual report to the legislature and the governor concerning the work of its units, including receipts, disbursements, resources, and liabilities).

(16)  16 V.S.A. § 2856(g) (adjutant general’s annual report to the legislature regarding educational loan programs for national guard members).

(17)  Sec. 90 of No. 60 of the Acts of 1997 as amended by Sec. 33 of No. 49 of the Acts 1999 (repeal of legislative oversight committee on restructuring education and assumption of the committee’s duties by standing legislative committees).

(18)  Sec. 2(b)(7) of No. 125 of the Acts of the 1999 Adj. Sess. (2000) (annual report of the commissioners of health, of buildings and general services, and of education to the house and senate committees on education regarding indoor air and hazardous exposure in Vermont schools and regarding the number of school districts that have adopted related programs).

(19)  Sec. 97(c) of No. 152 of the Acts of the 1999 Adj. Sess. (2000) (annual report of the secretary of human services and the commissioner of education to the legislature regarding the state team for children, families, and individuals and regional and community partnerships).

(20)  Sec. 71(f) of No. 68 of the Acts of the 2002 Adj. Sess. (2003) as amended by Sec. 1 of No. 4 of the Acts of 2005 of No. 4 of the Acts of 2005 (annual report of the council on education governance to the legislature regarding its progress and any recommendations for legislation necessary to comply with the No Child Left Behind Act).

(21)  Sec. 168a(c) of No. 71 of the Acts of 2005 (commissioner issues a request for proposals, chooses grant recipients, determines the amounts to be awarded to each recipient, and monitors the progress of each grant recipient for fiscal year 2006; annual report by the council on education governance to the legislature regarding its progress and recommendations for legislative change).

Third:  By adding 11 new sections to be Secs. 3a through 3k to read as follows:

Sec. 3a.  16 V.S.A. § 2177(b) is amended to read:

(b)  The books and accounts of the corporation shall be audited annually as of June 30 under the supervision of the auditor of accounts who shall publish the audit report in detail

Sec. 3b.  16 V.S.A. § 2281(a) is amended to read:

(a)  The books and accounts of the University of Vermont and State Agricultural College shall be audited annually as of June 30, under the supervision of the auditor of accounts. The report of such audit shall be published in detail by the auditor of accounts. 

Sec. 3c.  16 V.S.A. § 2835 is amended to read:

§ 2835.  CONTROLS, AND AUDITS, AND REPORTS

Control of funds appropriated and all procedures incident to the carrying out of the purposes of this chapter shall be vested in the board.  The books of account of the corporation shall be audited annually under the direction of the auditor of accounts and a report filed with the secretary of administration not later than November 1 each year.  Biennially the board shall report to the legislature on its activities during the preceding biennium. 

Sec. 3d.  16 V.S.A. § 2879f is amended to read:

§ 2879f.  ANNUAL REPORTS REVIEW

The corporation shall review, on an annual basis, the financial status of the program and the participation rate in the program.  The corporation shall also review the continued viability of the program and the administration of the program by the corporation. The corporation shall report by January 15th the findings to the speaker of the house, the president pro tem of the senate, and to the house and senate committees on education. 

Sec. 3e.  24 V.S.A. § 5261 is amended to read:

§ 5261.  ANNUAL REPORT; AUDIT

On or before March 31 of each year, the authority shall report on its activities for the preceding calendar year to the governor and to the general assembly.  Each report shall set forth a complete operating and financial statement covering its operations during the year.  The authority shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants and the cost thereof shall be considered an expense of the authority and a copy thereof shall be filed with the state treasurer. 

Sec. 3f.  Sec. 7 of No. 43 of the Acts of 2005 is amended to read:

Sec. 7.  UNIVERSITY OF VERMONT

The sum of $1,700,000 is appropriated to the department of buildings and general services for the University of Vermont to assist with construction, renovation, and major facility maintenance to the university campus that advances the mission of the university to prepare the students to lead productive lives and to interpret and share knowledge for the benefit of Vermont and for society as a whole.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 7                                                        $1,700,000)

Sec. 3g.  Sec. 8 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 8.  UNIVERSITY OF VERMONT

The sum of $1,800,000 is appropriated to the University of Vermont to assist with construction of the plant sciences building and with major facility maintenance to the university campus.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 8                                                        $1,800,000)

Sec. 3h.  Sec. 9 of No. 147 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 9.  VERMONT STATE COLLEGES

The sum of $1,800,000 is appropriated to the Vermont state colleges for major facility maintenance.  The state colleges shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 9                                                        $1,800,000)

Sec. 3i.  Sec. 4(c) of No. 192 of the Acts of the 2005 Adj. Sess. (2006) is amended to read: 

(c)  On or before January 15, 2007, and on or before January 15 for five years thereafter, the task force shall report on its activities during the preceding year to the house and senate committees on education and judiciary.  The task force shall cease to exist after it files the report due on January 15, 2012.

Sec. 3j.  Sec. 9 of No. 52 of the Acts of 2007 is amended to read:

Sec. 9.  UNIVERSITY OF VERMONT

The sum of $1,600,000 is appropriated to the University of Vermont for construction, renovation, or maintenance projects.  The university shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 9                                               $ 1,600,000)

Sec. 3k.  Sec. 10 of No. 52 of the Acts of 2007 is amended to read:

Sec. 10.  VERMONT STATE COLLEGES

The sum of $1,600,000 is appropriated to the Vermont State Colleges for major facility maintenance.  The state colleges shall file with the general assembly an annual report, on or before January 15, that details the status of capital projects funded in whole or in part by state capital appropriations.

(Total appropriation – Section 10                                             $ 1,600,000)

Fourth:  By striking out Secs. 5 through 20 in their entirety

(Committee Vote: 5-0-0)

(No House amendments.)

House Proposal of Amendment

S. 232

An act relating to mobile polling stations.

The House proposes to the Senate to amend the bill by adding Sec. 3 and Sec. 4 as follows:

Sec. 3.  PURPOSE

The general assembly intends that the authorization for use of mobile polling stations created by this act is a pilot project and shall only be effective until July 1, 2009.

Sec. 4.  SECRETARY OF STATE; REPORT

The secretary of state shall report to the house and senate committees on government operations by January 15, 2009 on the results of the use of mobile polling stations.

S. 240

An act relating to repealing the sunset of the law enforcement exemption to the social security breach notice act.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  REPEAL OF SUNSET OF LAW ENFORCEMENT EXEMPTION TO SOCIAL SECURITY BREACH NOTICE ACT

Sec. 5 of No. 162 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 5.  SUNSET

9 V.S.A. § 2435(h) (exemption for law enforcement agencies from security breach notice act) shall be repealed June 30, 2008 2009.

The House further proposes to amend the title by striking the word “Social”.

House Proposal of Amendment

S. 290

An act relating to agricultural water quality.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lie thereof the following:

Sec. 1.  6 V.S.A. § 4828 is added to read:

§ 4828.  CAPITAL EQUIPMENT ASSISTANCE PROGRAM

(a)  It is the purpose of this section to provide assistance to contract applicators and farms to purchase or use innovative manure injection equipment that will aid in the reduction of surface runoff of agricultural wastes to state waters, improve water quality of state waters, reduce odors from manure application, decrease greenhouse gas emissions, and reduce costs to farmers.

(b)  The capital equipment assistance program is created in the agency of agriculture, food and markets to provide farms and custom applicators in Vermont with state financial assistance for the purchase of new or innovative manure injection equipment to improve manure application or nutrient management plan implementation.

(c)  Assistance under this section shall in each fiscal year be allocated according to the following priorities and as further defined by rule by the secretary:

(1)  First priority shall be given to capital equipment to be used on farm sites that are serviced by custom applicators and that are located in descending order within the boundaries of:

(A)  the Lake Champlain Basin;

(B)  the Lake Memphremagog Basin;

(C)  the Connecticut River Basin; and

(D)  the Hudson River Basin.

(2)  Next priority shall be given to capital equipment to be used at a farm site which is located in descending order within the boundaries of:

(A)  the Lake Champlain Basin;

(B)  the Lake Memphremagog Basin;

(C)  the Connecticut River Basin; and

(D)  the Hudson River Basin.

(d)  On or before January 15, 2009, and annually thereafter, the secretary of agriculture, food and markets shall report to the house and senate committees on agriculture and the house committee on fish, wildlife and water resources regarding the performance of and results achieved by providing capital assistance to custom applicators and farms for new or innovative manure injection equipment.

House Proposal of Amendment

S. 291

An act relating to the farm agronomic practices program at the Agency of Agriculture, Food and Markets.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  6 V.S.A. § 4951 is added to read:

§ 4951.  FARM AGRONOMIC PRACTICES PROGRAM

(a)  The farm agronomic practices assistance program is created in the agency of agriculture, food and markets to provide the farms of Vermont with state financial assistance for the implementation of soil-based practices that improve soil quality and nutrient retention, increase crop production, minimize erosion potential, and reduce agricultural waste discharges.  The following practices shall be eligible for assistance to farms under the grant program:

(1)  conservation crop rotation;

(2)  cover cropping;

(3)  strip cropping;

(4)  cross-slope tillage;

(5)  zone or no-tillage;

(6)  pre-sidedress nitrate tests;

(7)  annual maintenance of a nutrient management plan that is no longer receiving funding under a state or federal contract, provided the maximum assistance provided to a farmer under this subdivision shall be $1,000.00 per year; and

(8)  educational and instructional activities to inform the farmers and citizens of Vermont of:

(A)  the impact on Vermont waters of agricultural waste discharges;

(B)  the federal and state requirements for controlling agricultural waste discharges.

(b)  Funding available under section 4827 of this title for nutrient management planning may be used to fund practices under this section.

Sec. 2.  REPEAL

Sec. 80a of No. 215 of the Acts of the 2005 Adj. Sess. (2006) is hereby repealed and replaced by 6 V.S.A. § 4951.

Sec. 3.  6 V.S.A. § 4824(a) is amended to read:

(a)  State grant.  State financial assistance awarded under this subchapter shall be in the form of a grant.  When a state grant is intended to match federal financial assistance for the same on-farm improvement project, the state grant shall be awarded only when the federal financial assistance has also been approved for or awarded.  An applicant for a state grant shall pay at least 15 percent of the total eligible project cost.  The dollar amount of a state grant shall be equal to the total eligible project cost, less 15 percent of the total as paid by the applicant, and less the amount of any federal assistance awarded, except that a state grant shall not exceed 50 80 percent of the total eligible project cost.

Sec. 4.  EFFECTIVE DATE

This act shall take effect upon passage.

Proposed Amendment to the Constitution

PROPOSAL 5

(Fourth day on Notice Calendar pursuant to Rule 71)

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

Subject:  Elections; Voter’s oath; self-administration.

The Committee recommends that the proposal be amended by striking out the proposal in its entirety and inserting in lieu thereof the following:

PROPOSAL 5

Sec. 1.  PURPOSE

This proposal would amend the Constitution of the State of Vermont to provide that a person who will attain the age of 18 by the date of the general election shall have the right to vote in the primary election.

Sec. 2.  Section 42 of Chapter II of the Vermont Constitution is amended to read:

§ 42.  [Voter’s qualifications and oath]

Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state:

You solemnly swear (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge will most conduce to the best good of the same, as established by the Constitution, without fear or favor of any person.

Every person who will attain the full age of eighteen years by the date of the general election who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the oath or affirmation set forth in this section, shall be entitled to vote in the primary election.

Sec. 3.  EFFECTIVE DATE

This proposal of amendment shall take effect from the date of its approval by a majority vote of the voters of the state.

(Committee vote: 5-0-0)

ORDERED TO LIE

S. 70

An act relating to empowering municipalities to regulate the application of pesticides within their borders.

PENDING ACTION:  Second reading of the bill.

S. 108

An act relating to the election of U.S. Representative and U.S. Senator by the instant runoff voting method.

PENDING QUESTION:  Shall the bill pass, notwithstanding the refusal of the Governor to approve the bill?

H. 331

An act relating to financing the purchase of a mobile home.

PENDING ACTION:  Second reading of the bill.

J.R.S. 24

Joint resolution relating to the federal “fast track” process for congressional review of international trade agreements.

PENDING ACTION:  Second reading of the resolution.

Concurrent Resolutions

     The following concurrent resolutions have been introduced for approval by the Senate and House and will be adopted automatically unless a Senator or Representative requests floor consideration before the end of the session of the next legislative day.  Requests for floor consideration in either chamber should be communicated to the Secretary’s office and/or the House Clerk’s office, respectively.

S.C.R. 46. 

     Senate concurrent resolution congratulating QNEK Productions on its 15th anniversary.

S.C.R. 47.

Senate concurrent resolution congratulating Caitlin Manahan on being named the 2008 Miss Hockey.

S.C.R. 48.

Senate concurrent resolution congratulating the Granite Center Garden Club on its 70th anniversary.

S.C.R. 49. 

Senate concurrent resolution congratulating Marlboro College on its 60th anniversary.

S.C.R. 50.  

Senate concurrent resolution congratulating WVMT radio’s Charlie and Ernie In The Morning on the radio program’s 10th anniversary.

S.C.R. 51.

Senate concurrent resolution congratulating Montpelier High School principal Peter Evans on his designation as the 2008 Vermont Principal of the Year.

H.C.R. 269

House concurrent resolution congratulating the Mount Anthony Union High Patriots’ 2008 Vermont championship wrestling team on winning a national record-setting 20th consecutive state title. 

H.C.R. 270

House concurrent resolution congratulating the 2008 Mount Anthony Union High School Lady Patriots Division I championship Nordic ski team

H.C.R. 271

House concurrent resolution congratulating the Mount Anthony Union High School 2008 Lady Patriots’ Division I girls’ basketball championship team

H.C.R. 272

House concurrent resolution in memory of former Bennington County Assistant Judge Ezekiel S. Cross.

H.C.R. 273

House concurrent resolution congratulating the Vermont Frost Heaves on winning the 2008 American Basketball Association championship.

H.C.R. 274

House concurrent resolution honoring Washington County Mental Health Services, Inc. on its fortieth anniversary.


H.C.R. 275

House concurrent resolution honoring retiring Weybridge town moderator Stanley James Jr.

H.C.R. 276

House concurrent resolution recognizing the lifesaving efforts of William Woolsey.

H.C.R. 277

House concurrent resolution in memory of Representative David T. Clark of St. Johnsbury.

H.C.R. 278

House concurrent resolution congratulating Vermont Woman on winning the 2007 New England Press Association’s Newspaper of the Year Award and related honors.

H.C.R. 279

House concurrent resolution honoring the 2008 FIRST Robotics Competition teams from Vermont

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.

Richard G. Grassi of White River Junction - Member of the Parole Board - By Sen. Campbell for the Committee on Institutions.  (4/4)

Heather Shouldice of East Calais - Member of the Capitol Complex Commission - By Sen. Coppenrath for the Committee on Institutions.  (4/4)

Susan Hayward of Middlesex - Member of the Capitol Complex Commission - By Sen. Scott for the Committee on Institutions.  (4/4)

Dean George of Middlebury - Member of the Parole Board - By Sen. Mazza for the Committee on Institutions.  (4/4)



Published by:

The Vermont General Assembly
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Montpelier, Vermont


www.leg.state.vt.us