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Journal of the Senate

________________

Wednesday, March 26, 2008

The Senate was called to order by the President.

Devotional Exercises

A moment of silence was observed in lieu of devotions.

Bill Referred to Committee on Appropriations

H. 403.

House bill of the following title, appearing on the Calendar for notice and carrying an appropriation or requiring the expenditure of funds, under the rule was referred to the Committee on Appropriations:

An act relating to postretirement cost of living adjustments for state employees.

Bill Amended; Third Reading Ordered

S. 344.

Senate bill entitled:

An act relating to internet and mail order sales of tobacco products.

Having been called up, was taken up.

Thereupon, the pending question, Shall the bill be committed to the Committee on Judiciary, intact?, without objection the motion was withdrawn.

     Thereupon, Senator Carris, for the Committee on Economic Development, Housing and General Affairs, to which bill was referred reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  7 V.S.A. § 1010 is added to read: 

§ 1010.  internet sales

(a)  As used in this section:

(1)  “Cigarette” has the same definition as that found at 32 V.S.A § 7702(1).

(2)  “Distributor” has the same definition as that found at 32 V.S.A. § 7702(4).

(3)  “Licensed wholesale dealer” has the same definition as that found at 32 V.S.A § 7702(5).

(4)  “Little cigars” has the same definition as that found at 32 V.S.A § 7702(6).

(5)  “Retail dealer” has the same definition as that found at 32 V.S.A § 7702(10).

(6)  “Roll-your-own tobacco” has the same definition as that found at 32 V.S.A § 7702(11).

(7)  “Snuff” has the same definition as that found at 32 V.S.A § 7702(13).

(b)  This section applies to any person who imports or distributes for sale or sells to any person in the state cigarettes, roll-your-own tobacco, little cigars, and snuff.

(c)  A licensed wholesale dealer, distributor, or retail dealer may only:

(1)  Sell or ship cigarettes, roll-your-own tobacco, little cigars, or snuff, ordered or purchased by mail or through a computer network, telephonic network, or other electronic network, to another licensed wholesale dealer, distributor or retail dealer directly. 

(d)  A licensed wholesale dealer, distributer, or retail dealer may not:

(1)  Cause cigarettes, roll-your-own tobacco, little cigars, or snuff, ordered or purchased by mail or through a computer network, telephonic network, or other electronic network, to be shipped to anyone other than a licensed wholesale dealer, distributor, or retail dealer in this state.

(e)  A knowing or intentional violation of this section shall be a punishable by imprisonment for not more than one year or a fine of not more than $5,000.00, or both.

(1)  In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a person has violated this section, the attorney general may impose a civil penalty in an amount not to exceed $5,000.00 for each violation.  For purposes of this subsection, each shipment or transport of cigarettes, roll-your-own tobacco, little cigars, or snuff shall constitute a separate violation.

(2)  The attorney general may seek an injunction to restrain a threatened or actual violation of this section.


(3)  In any action brought pursuant to this section, the state shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorneys fees.

(4)  A person who violates this section engages in an unfair and deceptive trade practice in violation of the state’s Consumer Fraud Act, 9 V.S.A. §§ 2451 et seq.

(5)  If a court determines that a person has violated the provisions of this section, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the state treasurer for deposit in the general fund.

(6)  Unless otherwise expressly provided, the penalties or remedies, or both, under this section are in addition to any other penalties and remedies  available under any other law of this state.

Thereupon, pending the question, Shall the bill be amended as recommended by the Committee on Economic Development, Housing and General Affairs?, Senator Carris, on behalf of the Committee on Economic Development, Housing and General Affairs, moved to substitute a proposal of amendment for the report of the Committee on Economic Development, Housing and General Affairs as follows:

Sec. 1.  7 V.S.A. § 1010 is added to read:

§ 1010.  internet sales

(a)  As used in this section:

(1)  “Cigarette” has the same definition as that found at 32 V.S.A § 7702(1).

(2)  “Distributor” has the same definition as that found at 32 V.S.A. § 7702(4).

(3)  “Licensed wholesale dealer” has the same definition as that found at 32 V.S.A § 7702(5).

(4)  “Little cigars” has the same definition as that found at 32 V.S.A § 7702(6).

(5)  “Retail dealer” has the same definition as that found at 32 V.S.A § 7702(10).

(6)  “Roll-your-own tobacco” has the same definition as that found at 32 V.S.A § 7702(11).

(7)  “Snuff” has the same definition as that found at 32 V.S.A § 7702(13).

(b)  No person shall cause cigarettes, roll-your-own tobacco, little cigars, or snuff, ordered or purchased by mail or through a computer network, telephonic network, or other electronic network, to be shipped to anyone other than a licensed wholesale dealer, distributor, or retail dealer in this state.

(c)  No person shall, with knowledge or reason to know of the violation, provide substantial assistance to a person in violation of this section.

(d)  A violation of this section is punishable as follows:

(1)  A knowing or intentional violation of this section shall be punishable by imprisonment for not more than one year or a fine of not more than $5,000.00, or both.

(2)  In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a person has violated this section, the attorney general may impose a civil penalty in an amount not to exceed $5,000.00 for each violation.  For purposes of this subsection, each shipment or transport of cigarettes, roll-your-own tobacco, little cigars, or snuff shall constitute a separate violation.

(3)  The attorney general may seek an injunction to restrain a threatened or actual violation of this section.

(4)  In any action brought pursuant to this section, the state shall be entitled to recover the costs of investigation, of expert witness fees, of the action, and reasonable attorney’s fees.

(5)  A person who violates this section engages in an unfair and deceptive trade practice in violation of the state’s Consumer Fraud Act, 9 V.S.A. §§ 2451 et seq.

(6)  If a court determines that a person has violated the provisions of this section, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the state treasurer for deposit in the general fund.

(7)  Unless otherwise expressly provided, the penalties or remedies, or both, under this section are in addition to any other penalties and remedies available under any other law of this state.

Which was agreed to.

Thereupon, pending the question, Shall the bill be amended as recommended by the Committee on Economic Development, Housing and General Affairs, as substituted?, Senator Mullin, moved to amend the substitute proposal of amendment in Sec. 1, 7 V.S.A. § 1010(d)(1) by striking out the following: “one year” and inserting in lieu thereof the following: five years

Which was agreed to.

Thereupon, the pending question, Shall the bill be amended as recommended by the Committee on Economic Development, Housing and General Affairs, as substituted and amended?, was decided in the affirmative.

Thereupon, third reading of the bill was ordered.

Consideration Postponed

Senate bill entitled:

S. 201.

An act relating to state employee whistleblower protection.

Was taken up.

Thereupon, without objection consideration of the bill was postponed until tomorrow.

S. 369.

Senate bill entitled:

An act relating to recognition of tribes and bands of native Americans by the Vermont commission on native American affairs.

Was taken up.

Thereupon, without objection consideration of the bill was postponed until Friday, March 28, 2008.

Bill Passed

Senate bill of the following title was read the third time and passed:

S. 304.

An act relating to a groundwater withdrawal permit program.

Bill Amended; Bill Passed

S. 324.

Senate bill entitled:

An act relating to beer tastings.

Was taken up.

Thereupon, pending third reading of the bill, Senator Bartlett moved to amend the bill in Sec. 1, 7 V.S.A., § 67(a)(1) by striking out the subdivision in its entirety and inserting in lieu thereof a new subdivision to read as follows:

(1)  A second class licensee.  The permit authorizes the employees of the permit holder to dispense vinous or malt beverages to retail customers of legal age on the licensee's premises.  Vinous or malt beverages for the tasting shall be from the inventory of the licensee or purchased from a wholesale dealer. Pursuant to this permit, a second class licensee may conduct no more than one wine tasting per month 30 tastings a year.

Which was agreed to.

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

Bills Amended; Third Readings Ordered

S. 297.

Senator Scott, for the Committee on Transportation, to which was referred Senate bill entitled:

An act relating to clarifying the definition of “stiff hitch” in the motor vehicle statutes.

     Reported recommending that the bill be amended by adding two new sections to be numbered Secs. 2 and 3 to read as follows:

Sec. 2.  23 V.S.A. § 4(78) is added to read:

(78)  An “all-surface vehicle” or “ASV” means any non-highway recreational vehicle, except a snowmobile, when used for cross-country travel on trails or on any one of the following or combination of the following:  land, water, snow, ice, marsh, swampland, and natural terrain.  An all-surface vehicle shall be designed for use both on land and in water, with or without tracks, shall be capable of flotation and shall be equipped with a skid-steering system, a sealed body, a fully contained cooling system, and six or eight tires designed to be inflated with an operating pressure not exceeding 10 pounds per square inch as recommended by the manufacturer.  An all-surface vehicle shall have a net weight of 1,500 pounds or less, shall have a width of 75 inches or less, shall be equipped with an engine of not more than 50 horsepower, and shall have a maximum speed of not more than 25 miles per hour.  An ASV when operated in water shall be considered to be a motor boat and shall be subject to the provisions of subchapter 2 of chapter 29 of this title.  An ASV operated anywhere except in water shall be treated as an all-terrain vehicle and be subject to the provisions of chapter 31 of this title. 


Sec. 3.  23 V.S.A. § 364b is added to read:

§ 364b.  ALL-SURFACE VEHICLES; REGISTRATION

The annual fee for registration of an all-surface vehicle (ASV) shall be the sum of the fees established by sections 3305 and 3504 of this title, plus $25.00.  Notwithstanding section 502 of Title 32, the commissioner may charge the actual cost of production of the plates against the fees collected, and the balance shall be deposited in the transportation fund.

And that when so amended the bill ought to pass.

Senator Ayer, for the Committee on Finance, to which the bill was referred reported that the bill ought to pass when so amended.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.

S. 372.

Senate committee bill entitled:

An act relating to evictions, unpaid rent, and abandoned property in rental property.

Having appeared on the Calendar for notice for one day, was taken up.

     Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the bill be read the third time?, Senator Illuzzi, on behalf of the Committee on Economic Development, Housing and General Affairs, moved to amend the bill by striking out Secs. 1, 7 and 8 in their entirety and inserting in lieu thereof the following:

Sec. 1.  9 V.S.A. § 4451(1) is amended to read:

(1)  “Actual notice” means written notice hand-delivered or mailed to the last known address.  A notice under this subdivision is presumed received if the sending party can prove that it was sent by certified United States mail.

Sec. 7.  12 V.S.A. § 4773 is amended to read:

§ 4773.  EJECTMENT FOR NONPAYMENT OF RENT; PROOF; PAYMENT

In actions of ejectment for nonpayment of rent, the plaintiff shall not be required to prove a demand of the rent in arrear or a stipulation for reentry on nonpayment of rent or a reentry on the premises, but shall recover judgment as if the rent in arrear had been demanded and reentry made.  Before final judgment a writ of possession is executed, if the defendant in such action pays into court the rent in arrear with all rent due through the end of the current rental period, including interest and the costs of suit, such the action shall be discontinued.  A defendant may not defeat an ejectment action based on nonpayment of rent if the landlord has sent a termination notice based on nonpayment of rent more than three times in 12 months, provided the landlord has sent actual notice no earlier than seven calendar days from the date the rent is due for each notice under this section..

Sec. 8.  12 V.S.A. § 4853a(a), (b), and (d) are amended to read:

(a)  In any action against a tenant for possession brought in accordance with this chapter, chapter 137 of Title 9 or, chapter 153 of Title 10, or chapter 14 of Title 11, the landlord may file a motion for an order that the tenant pay rent into court.  The motion may be filed and served with the complaint or at any time after the complaint has been filed.  The motion shall be accompanied by affidavit setting forth particular facts in support of the motion.

(b) A hearing on the motion shall be held any time after 10 days notice to the parties.  If the tenant appears at the hearing and has not been previously defaulted, the court shall not enter judgment by default unless the tenant fails to file a written answer within 10 days after the hearing.  Any rent escrow order shall remain in effect notwithstanding the issuance of a default judgment.

(d)  If the court finds the tenant is obligated to pay rent and has failed to do so, the court shall order full or partial payment into court of rent as it accrues while the proceeding is pending and prorated rent for the month in which the hearing is held rent accrued from the date of filing with the court the complaint for ejectment or the date the summons and complaint for ejectment were served on the tenant pursuant to Rule 3 of the Vermont Rules of Civil Procedure, whichever occurs first.

Which was agreed to.

Thereupon, third reading of the bill was ordered.

Consideration Postponed; Adjournment

S. 348.

Senator Starr, for the Committee on Education, to which was referred Senate bill entitled:

An act relating to education or workforce training for children between the ages of 16 and 18 years of age.

     Reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:


Sec. 1.  16 V.S.A. § 1121a is added to read:

§ 1121a.  EARLY IDENTIFICATION OF STUDENTS WHO MAY NOT COMPLETE SECONDARY SCHOOL; SUPPORT FOR SECONDARY SCHOOL COMPLETION

Each superintendent shall ensure that every public school within his or her jurisdiction implements the following:

(1)  Education support teams shall attempt to identify each student whose academic progress, behavior, or other indicators suggest, at any age, that the student may not complete his or her secondary education.

(2)  Education support teams shall work with every student identified in subdivision (1) of this section and, to the extent possible, the student’s parents or guardians to develop and update annually a personal education plan (“PEP”).  The PEP shall identify those services necessary for the student’s successful completion of elementary and secondary school and shall outline the procedure for obtaining the services, which may include the following:

(A)  Research-based literacy instruction to support the student to attain grade-level reading proficiency, if such support is needed.  

(B)  The assignment of an adult mentor, who may be the student’s parent or guardian, a community volunteer, or some other individual, to provide academic, career, and emotional support to the student until completion of secondary school.

(C)  Applied or work-based learning opportunities for secondary school students, particularly those that foster appropriate social interactions with adults and other students.

(D)  The opportunity, when appropriate, to participate in dual enrollment courses, with tutorial support provided as needed.

(E)  The opportunity, when appropriate, to participate in outreach programs with the Vermont student assistance corporation, including academic support services, workshops, summer programs, and career counseling.

(F)  Any other service to encourage the successful completion of elementary and secondary school. 

(3)  When a school determines that a student’s early withdrawal from secondary school is imminent, the school shall provide information to that student about alternative paths to graduation, regardless of whether the student was previously identified or served under subdivision (1) or (2) of this section.  


Sec. 2.  16 V.S.A. § 1122 is amended to read:

§ 1122.  PUPILS OVER SIXTEEN CHILDREN WHO ARE 16 YEARS OLD AND OLDER; WAIVER

A person having the control of a child over sixteen years of age who allows such child to become enrolled in a public school, shall cause such child to attend such school continually for the full number of the school days of the term in which he is so enrolled, unless such child is mentally or physically unable to continue, or is excused in writing by the superintendent or a majority of the school directors.  In case of such enrollment, such person, and the teacher, child, superintendent, and school directors shall be under the laws and subject to the penalties relating to the attendance of children between the ages of seven and sixteen years. 

(a)  The legal guardian or guardians of a child who is at least 16 but less than 18 years old shall cause the child to be enrolled in and attend a public or approved independent secondary school for the number of days and hours required for satisfactory completion of the academic year, except under the following circumstances:

(1)  The commissioner determines that the child is mentally or physically unable to be enrolled.

(2)  The child is enrolled in and attending:

(A)  A postsecondary school, as defined in subdivision 176(b)(1) of this title, that is approved or accredited in Vermont or another state; or

(B)  A postsecondary technical education program as defined in subdivision 1522(12) of this title. 

(3)  The child has completed all credits and other requirements necessary for secondary graduation.

(4)  The child was in a home study program under section 166b of this title for at least one year at the secondary level when he or she was younger than 16 years old and will continue to be under his or her guardian’s educational supervision until age 18.

(5)  The child has been granted a waiver pursuant to subsection (b) or (c) of this section.

(b)  A student who is at least 16 but less than 18 years old and who is not subject to the exceptions set out in subdivisions (a)(1) through (4) of this section may terminate his or her secondary education in a public or approved independent school upon receiving a waiver from an administrator or counselor designated by the school board of the district in which the student resides.  To obtain a waiver, the student shall meet with the designee and discuss alternative paths to graduation and other approved alternatives to secondary school, which may include the high school completion program created by section 1049a of this title, a home study program pursuant to section 166b of this title, the Northlands Job Corps Center, an education program approved by the department of education, or a workforce development program eligible to receive funding from the department of labor.  When the student has selected an alternative to enrollment in the secondary school, the designee shall issue written approval for the student to terminate his or her enrollment in the public or approved independent school and shall provide a copy to the student, the student’s legal guardian or guardians, the school board, and the program in which the student intends to participate. 

(c)  A student subject to the provisions of subsection (b) of this section who either chooses not to pursue an alternative pursuant to that subsection or terminates his or her participation in the alternative program prior to the age of 18 may request from the school board of the district in which the student resides a waiver of the requirements of subsections (a) and (b) of this section.  To obtain a waiver, the student, and the student’s legal guardian or guardians if possible, shall meet with school board and explain the reasons that he or she is requesting the waiver and his or her plans for education, workforce training, or employment until reaching the age of 18.  The board may suggest and discuss other alternatives with the student. 

(1)  If the board approves the student’s request for a waiver, the board shall issue written approval for the child to terminate his or her enrollment in the public or approved independent school pursuant to subsection (a) or to terminate attendance in an alternative program pursuant to subsection (b) of this section.  The board shall provide a copy of the waiver to the student, the student’s legal guardian or guardians, the school in which the student was or is enrolled, and any alternative program the student had been attending. 

(2)  If the board does not approve the student’s request for a waiver, the student shall be considered truant under the provisions of this chapter unless the student withdraws the request and complies with subsection (a) or (b) of this section.  The student may appeal the board’s decision to the commissioner, whose decision shall be final; provided, however, that a subsequent action may be filed in superior court.

(d)  The departments of labor and of education shall publish, and update at least annually, a list of all programs under their respective jurisdictions that meet the requirements of subsection (b) of this section.

(e)  During the period in which the child is enrolled in and attending a public or approved independent secondary school pursuant to subsection (a) of this section or an alternative program pursuant to subsection (b) of this section, the child, the child’s legal guardian or guardians, and the superintendent and school directors of the district in which the child resides shall be subject to the laws and penalties relating to the attendance of children between the ages of seven and 18 years. 

(f)  The provisions of this section shall also apply to an emancipated minor.

Sec. 3.  HIGH SCHOOL COMPLETION PROGRAM; GRADUATION EDUCATION PLAN; GUIDELINES

The department of education shall amend the high school completion program’s guidelines to:

(1)  Require that the graduation education plan for each 16‑ and 17‑year‑old student include services relevant to the student’s goals that provide:

(A)  Career exploration.

(B)  Workforce training.

(C)  Workplace readiness training.

(D)  Preparation for postsecondary training or education and transitioning assistance. 

(2)  Recommend that the graduation education plan for each student who is older than 17 years of age include the elements listed in subdivision (1) of this section.

Sec. 4.  EFFECTIVE DATE

This act shall take effect on July 1, 2008 and shall apply beginning in the 2008–2009 academic year.

And that when so amended the bill ought to pass.

Senator Illuzzi, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill be amended as recommended by the Committee on Education with the following amendments thereto:

First:  In Sec. 1, § 1121a(2), by striking out subdivision (F) in its entirety.

Second:  In Sec. 2, § 1122, subsection (a), at the beginning of the subsection by inserting the title Compulsory attendance; exceptions. and

in subsection (b), at the beginning of the subsection by inserting the title Waiver; designated administrator or counselor; alternative to enrollment. and

in subsection (c), at the beginning of the subsection by inserting the title Waiver; school board.

Third:  In Sec. 2, § 1122(c), subdivision (1), at the beginning of the subdivision by inserting the title Request for waiver; decision to approve.

Fourth:  In Sec. 2, § 1122(c), by striking out subdivision (2) in its entirety and inserting in lieu thereof four new subdivisions, to be numbered subdivisions (2) through (5), to read as follows:

(2)  Request for waiver; decision not to approve.  If the school board does not approve the student’s request for a waiver, then within 30 days after receiving the request it shall issue a written decision in which it explains the reasons it decided not to approve the request.  The board shall provide a copy of the decision to the student, the student’s legal guardian or guardians, the school in which the student was or is enrolled, and any alternative program the student had been attending.  After receiving the written decision, the student shall be considered truant under the provisions of this chapter unless the student complies with subsection (a) or (b) of this section. 

(3)  Appeal.  The student, by or through his or her legal guardian or guardians, may appeal the board’s decision to the commissioner within 15 days after receiving the board’s written decision.  The commissioner’s decision shall be final; provided, however, that the board’s and commissioner’s determinations may be the subject of a separate, subsequent action filed in superior court.  Pending resolution of the waiver issue, the student shall comply with the provisions of subsection (a) or (b) of this section or shall be considered truant under the provisions of this chapter.

(4)  Truant officer.  When a child is considered truant pursuant to this section, the truant officer for the school district shall follow the truancy protocol approved by the district, or one approved by the supervisory union if the district has not approved a protocol.

(5)  Enforcement.  Upon notification by a superintendent or truant officer that the school district has exhausted all reasonable efforts to bring a child considered truant into compliance with this section, that no waiver has been granted under this section, and that the appropriate truancy protocol has been followed, then, notwithstanding the provisions of 33 V.S.A. § 5517(e), the secretary of human services or a state’s attorney may file a petition alleging the child is in need of care and supervision pursuant to the provision of 33 V.S.A. § 5502(a)(12).  If the court finds that the child is in need of care and supervision, then the court may order the child to comply with subsection (a) or (b) of this section.  The court shall provide the school district with a copy of the court’s order. 

Fifth:  In Sec. 2, § 1122, subsection (d), at the beginning of the subsection by inserting the title Available programs. and

in subsection (e), at the beginning of the subsection, by inserting the title Applicable laws.

Sixth:  In Sec. 2, § 1122(e), after the words “During the period in which the child is”, by inserting the words or should be

Seventh:  In Sec. 2, § 1122, subsection (f), at the beginning of the subsection, by inserting the title Emancipated minor.

Eighth:  In Sec. 2, § 1122(f), at the end of the subsection, by adding a new sentence to read:  An emancipated minor shall conform to the requirements of this section and, in his or her own name, may exercise the rights created in this section.

Ninth:  In Sec. 3, by striking out subdivision (1) in its entirety and inserting in lieu thereof a new subdivision (1) to read as follows:

(1)  Require that the graduation education plan for each 16‑ and 17‑year‑old student include services relevant to the student’s goals, including career exploration and one or more of the following:

(A)  Workforce training.

(B)  Workplace readiness training.

(C)  Preparation for postsecondary training or education and transitioning assistance. 

And that when so amended the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the recommendation of amendment of the Committee on Education be amended as recommended by the Committee on Appropriations?, on motion of Senator Shumlin, the Senate adjourned until eleven o’clock and thirty minutes in the morning.

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us