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Feb. 24

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In this issue:   Feb. 24, 2014
eLegislative Report from Michael Valdez

Welcome to the 2014 edition of the CBA e-legislative report. This CBA member benefit will be delivered to your Inbox on Monday afternoons and will recap legislation from the current legislative session and the role the CBA plays at the State Capitol.

In addition to updates on the positions taken by the CBA through our Legislative Policy Committee the e-leg report will highlight legislation that is of interest to the practicing bar.

We welcome your feedback. We welcome your questions. Or just drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at mavaldez@cobar.org.

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CBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative se ssion. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

Action taken at Feb. 21 LPC meeting:.

  • The Committee voted to support HB 14-1073. Concerning the recording of legal documents.
  • The Committee voted to oppose HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape. A bill summary is below.
  • The Committee voted to oppose HB 14-1061. Concerning sentences imposing monetary payments in criminal actions, and, in connection therewith, eliminating prison sentences for persons who are unable to pay criminal monetary penalties.

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At the Capitol—Week of Feb. 17

A scorecard of the committee and floor work follows.

In the House

Monday, Feb. 17

Passed 3rd Reading:

  • SB 14-19. Concerning the state income tax filing status of two taxpayers who may legally file a joint federal income tax return. Vote: 37 yes, 26 no and 2 excused.
  • HB 14-1117. Concerning the creation of the Colorado premature birth commission. Vote: 50 yes, 13, no and 2 excused.
  • HB 14-1060. Concerning the authority of a municipality to compensate members of a municipal planning commission. Vote: 41 yes, 22 no, and 2 excused.
  • HB 14-1166. Concerning the renewal of concealed handgun permits by Colorado county sheriffs. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-25. Concerning grants for domestic wastewater treatment works for small communities. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1132. Concerning the ability of a local government to establish the hours during which alcohol beverages may be sold for consumption on a licensed premises. At the request of the sponsor the bill was defeated. Vote: 3 yes, 60 no, and 2 excused.
  • HB 14-1125. Concerning the circumstances under which a unit owners’ association may disclose contact information for members and residents under the “Colorado Common Interest Ownership Act.” Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1183. Concerning the reinstatement of the authority for active military personnel to practice professionally. Vote: 53 yes, 10 no, and 2 excused.

Tuesday, Feb. 18

Passed 3rd Reading:

  • HB 14-1080. Concerning a sales and use tax exemption for the Colorado Ute Indians. Vote: 63 yes, 0 no, and 1 excused.
  • HB 14-1040. Concerning criminal provisions relating to drug testing. Vote: 58 yes, 5 no, and 1 excused.
  • HB 14-1174. Concerning the sunset review of the natural areas council. Vote: 54 yes, 10 no, 1 excused.
  • HB 14-1107. Concerning the authority of the department of revenue to offer taxpayers the option to receive electronic notices. Vote: 64 yes, 0 no, and 1 excused.

Wednesday, Feb. 19

Passed on 3rd Reading:

  • HB 14-1177. Concerning requirements governing meetings of the boards of county commissioners of the larger counties. Vote: 65 yes and 0 no.
  • HB 14-1194. Concerning the recreation of the legislative digital policy advisory committee. Vote: 64 yes and 1 no.
  • HB 14-1121. Concerning notice requirements for county highway contract bid solicitations, and, in connection therewith, increasing the threshold value of a contract for which a county must advertise in a newspaper in the county or post notice in the county courthouse from five thousand dollars to the amount at which a contract requires a contractor’s bond. Vote: 40 yes and 25 no.
  • HB 14-1215. Concerning the ability of a federal home loan bank to enforce its rights with regard to collateral subject to a security agreement. Vote: 65 yes and 0 no.
  • HB 14-1126. Concerning the requirement to include notification to a patient regarding the patient’s breast tissue classification with the required mammography report. Vote: 52 yes and 13 no.

Thursday, Feb. 20

Passed on 3rd Reading:

  • HB 14-1172. Concerning exempting certain public safety departments from certain statutory requirements related to the impact of a criminal conviction on state employment opportunities. Vote: 65 yes and 0 no.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1229. Concerning authorizing sharing information between state and local government agencies related to legal marijuana. Vote: 63 yes, 0 no, and 2 excused.
  • SB 14-47. Concerning the payment of death benefits for seasonal wildland firefighters killed in the line of duty. Vote: 63 yes, 0 no, and 2 excused.
  • HB 14-1224. Concerning a set aside goal in state procurement for service-disabled veteran owned small businesses. Vote: 56 yes, 7 no, and 2 excused.

In the Senate

Monday, Feb. 17

Passed on 3rd Reading:

  • SB 14-132. Concerning the repeal of the requirement that a soldier be killed while deployed to a combat zone to issue a fallen soldier license plate. Vote: 35 yes and 0 no.
  • HB 14-1081. Concerning the motor carrier safety fund, and, in connection therewith, creating the fund, transferring money from the hazardous materials safety fund to the motor carrier safety fund, and specifying that any excess uncommitted reserves in the public utilities commission motor carrier fund be transferred to the motor carrier safety fund. Vote: 35 yes and 0 no.
  • Upon a motion for reconsideration, HB 14-1031. Concerning the weight of motor vehicles that are subject to rate regulation when being towed without the owner’s consent. Vote: 29 yes and 6 no.
  • SB 14-138. Concerning civil immunity for community volunteers assisting at an emergency. Vote: 35 yes and no.
  • HB 14-1004. Concerning emergency management, and, in connection therewith, eliminating and reorganizing two entities within the division of homeland security and emergency management in the department of public safety and authorizing the governor to provide individual assistance during a disaster absent a presidential declaration of the same. Vote: 35 yes and 0 no.

Tuesday, Feb. 18

Passed on 3rd Reading:

  • HB 14-126. Concerning the reclassification of the state lottery division as a type 1 agency. Vote: 28 yes and 7 no.
  • SB 14-101. Concerning establishment of the unauthorized use of certain veterinary technician titles as a deceptive trade practice under the “Colorado Consumer Protection Act.” Vote: 18 yes and 17 no.
  • SB 14-137. Concerning certification of workers’ compensation insurance forms. Vote: 34 yes and 1 no.

Wednesday, Feb. 19

Passed on 3rd Reading:

  • SB 14-97. Concerning the immunity of public agencies against liability arising from the wildfire mitigation activities of insurance companies. Vote: 35 yes 0 no.
  • SB 14-121. Concerning financial assistance for local governments after a declared disaster emergency. Vote: 35 yes and 0 no.
  • SB 14-103. Concerning the phase-out of the sale of certain low-efficiency plumbing fixtures. Vote: 19 yes and 16 no.

Thursday, Feb. 20

Passed on 3rd Reading:

  • SB 14-43. Concerning the inclusion of certain land areas used to grow products that originate above the ground within the classification of “all other agricultural property” for property tax purposes. Vote: 34 yes and 0 no.
  • SB 14-135. Concerning the repeal of certain provisions concerning the purchasing of firearms in states that are contiguous to Colorado. Vote: 34 yes, 0 no, and 1 excused.

Friday, Feb. 21

Passed on 3rd Reading:

  • HB 14-1086. Concerning a requirement that a legal notice published in a newspaper is also published on a statewide web site maintained by a majority of Colorado newspapers. Vote: 30 yes and 5 no.
  • HB 14-1035. Concerning collection of restitution ordered pursuant to a deferred judgment. Vote: 35 yes and 0 no.

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10 Bills of Interest
House Bills

HB 14-1159. Concerning a state sales and use tax exemption for components used in biogas production systems.

By Rep. Young and Sen. Schwartz

As introduced, the bill exempts from state sales and use tax components used in biogas production systems. Local governments that currently impose sales or use tax on such components may either continue to do so or may exempt them from their sales or use taxes. On Jan. 27, the Agriculture, Livestock, & Natural Resources Committee amended the bill and sent it the Finance Committee. On Feb. 13, the Finance Committee also amended the bill and sent it to the Appropriations for consideration of the Fiscal Impact.

HB 14-1162. Concerning protection of the victim of a sexual assault in cases where a child was conceived as a result of the sexual assault, and, in connection therewith, making legislative changes in response to the study by and the report of the recommendations from the task force on children conceived through rape.

By Rep. Landgraf

Last session, the general assembly passed a bill that allows the victim of a sexual assault in which a child was conceived and in which the person who committed the sexual assault was convicted to file for the termination of the parent-child legal relationship of the person who committed the sexual assault. In that same bill, the general assembly created a task force on children conceived by rape to study whether changes should be made to that statute and to study issues associated with parental rights in cases where a child was conceived as a result of the sexual assault but a conviction did not occur. This bill makes legislative changes in response to the study and report prepared by the task force.

The bill makes the following changes to provisions passed last year for cases involving convictions:

  • Adding more due process protections, such as specifying the notice to the respondent, setting a date for hearing the petition, and notifying the Indian tribe if the child is an Indian child in accordance with the federal “Indian Child Welfare Act,”
  • Adding more protections for the victim and the child, including protecting the identity of the victim and the child in the summons, ordering protective measures for the victim in the courtroom, and treating child support payments as confidential;
  • Providing legal counsel and waiving filing fees for indigent victims;
  • Providing for admission of parentage and for genetic testing to confirm paternity and allowing the court to order the parent against whom the petition has been filed to pay for genetic testing;
  • Stating that the court shall not presume that having only one remaining parent is contrary to the child’s best interests;
  • Creating a process for the parent whose parent-child legal relationship is terminated to provide medical and family information to be shared with the child and the victim in a way that protects the child from knowing the name of the person;
  • Clarifying what happens if the court denies the petition to terminate the parent-child legal relationship, including that the juvenile court has continuing jurisdiction of the matter and has the authority to enter an order allocating parental responsibilities between the parties, including an order to not allocate parental responsibilities to the parent against whom the petition was filed.

The bill repeals the statutes enacted last year that provided for a stay of a civil domestic relations proceeding or a paternity action while criminal charges of sexual assault brought against the alleged perpetrator are resolved.

The bill creates a process to allow the victim of a sexual assault in cases where a child was conceived and in which a conviction did not occur to file a petition in juvenile court to prevent future contact with and to terminate the parent-child legal relationship of the parent who allegedly committed the sexual assault. This process is similar to the process for petitions involving convictions but does not include a rebuttable presumption that it is in best interests of the child to terminate the parent-child legal relationship. If the court denies the petition to terminate the parent-child legal relationship, the juvenile court has continuing jurisdiction and the authority to enter orders on allocation of parental rights, including an order to not allocate parental rights to the other parent. The juvenile court may order the parent to submit to a sex offense-specific evaluation and parental risk assessment that may factor in the allocation of parental rights and responsibilities and parenting time. The court shall order the parent who is found to have committed the sexual assault to pay for the costs of the evaluation and the assessment. All of the changes made in this bill to the process for petitions involving convictions are also included in the process for petitions for nonconvictions.

Since some issues involving the child conceived by a sexual assault might start in the domestic relations arena instead of in a juvenile proceeding, the bill gives the domestic relations courts the authority to allocate parental rights and responsibilities, to address decision-making between the victim and the other parent in these cases, and to issue protective orders. The provisions are similar to the considerations that the court uses to address cases involving domestic violence. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, then it shall not be in the best interests of the child to allocate sole or split decision-making to the person who was found to have committed sexual assault or to allocate mutual decision-making with respect to any issue over the objection of the other party or the guardian ad litem. If the court finds by a preponderance of the evidence that one of the parties has committed sexual assault and the child was conceived as a result of the sexual assault, the court shall consider whether it is in the best interests of the child to prohibit or limit the parenting time of that party with the child. Prior to entering an order relating to parenting time or parental contact, the court may order that party to submit to a sex offense-specific evaluation and a parental risk assessment in Colorado. The court shall order the parent who is found to have committed the sexual assault to pay the costs of the evaluation and parental risk assessment.

In addition, in cases where the court has found that the child was conceived as a result of sexual assault, a domestic relations court may not modify a prior order regarding allocation of decision-making or modify a prior order regarding parenting time, unless it finds that the child’s present environment endangers the child’s physical health or significantly impairs the child’s emotional development.

Under existing law, when a parent voluntarily relinquishes a child so that the child may be adopted, there is a private action filed to terminate the parent-child legal relationship of the other parent. A victim of sexual assault might want to voluntarily relinquish the child conceived from the sexual assault for adoption and terminate the other parent’s rights. This bill amends the statute on termination in voluntary relinquishment cases so that the court may order the termination based on a finding that the other parent is unfit due to a history of violent behavior, which may include an incidence of sexual assault that resulted in the conception of the child.

The CBA LPC has voted to oppose the bill. The bill has been assigned to the Judiciary and Appropriations Committees.

HB 14-1163. Concerning a clarification of the cap imposed on the enterprise zone investment tax credit.

By Rep. Hullinghorst and Sen. Heath

The bill amends language added during the 2013 legislative session that could interfere with the general assembly’s intent in adopting House Bill 13-1142. The intent stated in committee hearings regarding the bill and noted correctly in the fiscal note was that the amount of the enterprise zone investment tax credit that a taxpayer may claim in any year be limited to $750,000 per year beginning in tax year 2014. Credits earned on and after tax year 2014 over the $750,000 limit were intended to be allowed as a carry forward in future tax years for 14 years (or 22 years for renewable energy investments as determined in Senate Bill 13-286). Credits carried forward from tax years before 2014 were to be exempt from the $750,000 limit.

In error, the statute allows the amount of the credits earned on and after tax year 2014 over the $750,000 limit to be added to the $750,000 limit in future tax years. This was not the intent and would render the $750,000 cap ineffective.

On Feb. 12, the Finance Committee approved the bill and sent it to the full House for consideration on 2nd Reading.

HB 14-1165. Concerning a limit on the retainage allowed under a private construction contract.

By Rep. Fischer and Sen. Tochtrop

The bill requires property owners who contract for improvements to real property to:

  • Pay 95 percent of the amount due, which limits the amount retained to ensure the quality of work to 5 percent; and
  • Pay subcontractors the retainage after the work is finally accepted.

If a person fails to make required payments, the person must pay interest and is liable for attorney fees. These requirements are enforceable in court. Contractual provisions that do not comply with the requirements are unenforceable. A statute of limitations to enforce the bill is set for one year.

The bill is assigned to the Business, Labor, Economic, & Workforce Development Committee; the bill is scheduled for committee review on Thursday, Feb. 27 at 1:30 p.m.

HB 14-1183. Concerning the reinstatement of the authority for active military personnel to practice professionally.

By Rep. Fields and Sen. Jones

The bill requires the director of the division of registrations in the department of regulatory agencies to reinstate the expired license, certificate, or registration of any active military personnel pursuant to specific requirements.

The bill was given final approval by the House on Feb. 17; the bill is assigned to the Senate Business, Labor, & Technology Committee.

Senate Bills

SB 14-118. Concerning improving protections for individuals with disabilities.

By Sen. Steadman and Rep. Melton

The bill conforms several definitions related to discrimination based on a disability (discrimination) to the federal “Americans With Disabilities Act of 1990,” including changing the term “assistance dog” to “service animal.” The fine for discrimination in places of public accommodation, housing, and or violations of the rights of an individual with a disability who uses a service animal or a trainer of a service animal is increased to $3,500. Penalties are added for a person who causes harm to a service animal or service animal in training or a person who owns an animal that causes harm to a service animal or service animal in training. The bill makes conforming amendments. The bill is assigned to the Judiciary Committee.

SB 14-123. Concerning the authority of the peace officers standards and training board, and, in connection therewith, providing additional rule-making authority; raising the maximum fee for certification and skills exams; allowing awarding grants to nonprofit organizations; and denying certification for municipal violations.

By Sen. Guzman and Rep. Kagan

As introduced, the bill gives the peace officers standards and training board (P.O.S.T. board) the authority to promulgate rules regarding:

  • Certification of inspectors of vehicle identification numbers;
  • Annual in-service training requirements for certified peace officers and the suspension of certification for the failure to receive annual in-service training;
  • Any necessary or proper rules that carry out the provisions and purposes of the P.O.S.T. board; and
  • Procedures for reinstatement of suspensions of certification.

The bill raises the maximum fee for certification and skills examinations from $125 to $150.

Under current law, the P.O.S.T. board can provide grants to local governments and colleges and universities to fund training programs. The bill also allows grants to nonprofit organizations.

The bill allows the P.O.S.T. board to deny certification to anyone who is convicted of a municipal violation that is the equivalent of any of the state law violations that permit denial of certification.

On Feb. 12, the Judiciary Committee amended the bill and moved it to the Finance Committee. The bill is on the Finance Committee calendar for Thursday, Feb. 27—“Upon Adjournment.”

HB 13-129. Concerning changes to criminal provisions related to marijuana.

By Sen. Steadman and Rep. May

The bill adds consumption and possession of marijuana and possession of marijuana paraphernalia to the crime of underage possession or consumption of alcohol. The bill changes the penalty structure for the crime as follows:

  • For a first offense, there is a fine of up to $100 or a requirement to attend substance abuse education classes;
  • For a second offense, there is a fine of up to $100; a requirement to attend substance abuse education classes; if appropriate, an order for a substance abuse assessment and any treatment recommended by the assessment; and up to 24 hours of public service; and
  • For a third or subsequent offense, there is a fine of up to $250, an order for a substance abuse assessment and any treatment recommended by the assessment, and up to 36 hours of public service.

Under current law, the P.O.S.T. board is encouraged to offer an advanced roadside impaired driving training course at basic academy training. The bill encourages the P.O.S.T. board to offer the course as an elective to basic field sobriety training recertification.

The bill changes the open marijuana container crime to require that prosecution prove that the container has a broken seal, that the contents were partially removed, and that there is evidence that marijuana was consumed in the vehicle. Current law only requires proof of one of those three elements. The bill makes conforming amendments.

On Feb. 12 the Judiciary Committee amended the bill and referred it to the Finance Committee. The Finance Committee approved the bill on Feb. 18 and sent it to the Appropriations Committee for consideration of the Fiscal Impact. On Feb. 21 the Appropriations Committee amended the bill and sent it to the full House for 2nd Reading.

SB 14-133. Concerning the regulation of private investigators by the department of regulatory agencies.

By Sen. Newell and Rep. Melton

Under the current “Private Investigators Voluntary Licensure Act” (voluntary act), a private investigator, at his or her option, may apply for a license from the division of professions and occupations (division) in the department of regulatory agencies and, upon satisfaction of the criteria for licensure, the director of the division is to issue a license to the private investigator. Only a person who obtains a license from the division may refer to himself or herself as a licensed private investigator, but no private investigator is required to be licensed by the division.

The bill repeals the voluntary licensure program and creates the “Private Investigators Licensure Act,” which establishes a new mandatory licensure program under which all persons conducting private investigations in this state must obtain a license from the division starting June 1, 2015. The definition of “private investigation”, as it was defined under the voluntary act, is expanded to include investigations pertaining to the following:

  • The location or recovery of lost or stolen property;
  • The affiliation, connection, or relationship of any person, firm, or corporation with any organization, society, or association or with any official, representative, or member of an organization, society, or association;
  • The conduct, honesty, efficiency, loyalty, or activities of employees, persons seeking employment, agents, contractors, or subcontractors; and
  • The identity or apprehension of persons suspected of crimes or misdemeanors.

Under the mandatory licensure program, an applicant may apply for one of two types of licenses as follows:

  • Level I private investigator license, which requires the applicant to be at least 21 years of age, be lawfully present in the United States, and pass a jurisprudence examination to demonstrate his or her knowledge and understanding of laws and rules applicable to the practice; or
  • Level II private investigator license, which requires the applicant to satisfy the requirements applicable to a level I license and have an amount of verifiable, applicable experience as determined by the director.

All private investigator licensees must pass a fingerprint-based background check.

The bill continues the exemptions authorized in the voluntary act and further exempts certain professionals, agencies, and activities from the act, including:

  • Collection and consumer reporting agencies;
  • Certified peace officers;
  • Government-employed investigators;
  • An accountant, certified fraud examiner, or employee or independent contractor of an accountant or fraud examiner who conducts forensic accounting, fraud investigations, or related analysis of financial transactions using information publicly available or supplied to the person;
  • A person serving process in accordance with rules of civil procedure or performing tasks associated with effecting service of process;
  • A licensed attorney, an employee of a licensed attorney, or a person providing paralegal services under contract with a licensed attorney;
  • A person recovering a fugitive; and
  • An agency, and its owner, employee, or independent contractor acting for the agency, that is conducting an investigation of a fire or explosion or an engineer-led investigation for cause analysis and failure analysis.

Licensees are required to post a surety bond in an amount determined by the director by rule. The bill establishes grounds for disciplining licensees, the methods of discipline available to the director, and disciplinary procedure.

The director is authorized to consult with stakeholders to obtain feedback and recommendations concerning the regulation of private investigators and the impacts of new technology on privacy. The director is also granted rule-making authority to implement and administer the act.

The “Private Investigators Licensure Act” and the functions of the director under the act are subject to repeal on Sept. 1, 2020, and prior to the repeal, the department of regulatory agencies is required to conduct a sunset review of the act.

The bill is assigned to the Judiciary Committee; the committee will consider the bill on Wednesday, Feb. 26 at 1:30 p.m.

SB 14-137. Concerning certification of workers' compensation insurance forms.

By Sen. Jahn and Rep. McNulty

Current law prohibits workers’ compensation carriers from writing any policy of insurance or any endorsement, rider, letter, or other document affecting an insurance contract on a form that has not been previously filed with and approved by the commissioner of insurance. The bill allows the forms to be used without prior approval and to be certified on an annual basis after submission by the workers' compensation carriers.

On Feb. 12, Business, Labor, & Technology Committee amended the bill and sent it the Senate 2nd Reading Consent Calendar. On Feb. 17 the bill passed with amendments on 2nd Reading. On Feb. 18, the Senate approved the bill on 3rd and Final Reading. The bill is assigned to the House Business, Labor, Economic, & Workforce Development Committee.