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From the Colorado Bar Association - Department of Legislative Relations
Michael Valdez
Keeping you apprised of what the General Assembly and your state Bar Association are up to under the Gold Dome.
Follow the Colorado Legislature on their website: http://www.leg.state.co.us/
My apologies for the delay in delivery - we had a computer glitch yesterday.
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CBA Legislative Policy Committee (LPC) activity
This segment is a quick re-cap of positions taken by the CBA’s Legislative Policy Committee (LPC). The LPC meets weekly to consider request from sections and committees to take positions on pending legislation. This section is a weekly feature of the e-legislative report.
Friday, February 15. The LPC voted to support HB 1266 - Filing of Notices on Statutory Liens. The bill is the product of the Secretary of State’s Business Division to provide guidance for filing of secured transactions records which are filed pursuant to Article 9 and Article 9.5 of Title 4. This is a necessary update to secured transaction filing and will promote smooth operations with the state online filing system.
Also contained in HB 1266 is the “Colorado Statutory Lien Registration Act.” This new act will provide clear-cut guidance for filing lien notices with the Secretary of State – all without impacting the substantive provisions of the various lien statutes. The bill is set for a hearing on the House Business Affairs and Labor Committee calendar for Monday, February 18 at 1:30 p.m.
Also on February 15 the LPC took the recommendation of the Family Law Section and voted to oppose HB 1254 - Grandparent Custody Children Neglect. The bill would require a court to give a grandparent legal custody over every other family member in a D & N case; this is predicated on a finding by the court that such an order would be in the best interests of the child. This would change the current state of the law where the court has the option of granting legal custody of a child to a grandparent. The bill also calls for a new procedure for a grandparent to petition the court for visitation rights by filing an affidavit with the court asserting that the parents have:
- failed to provide reasonable support for the child for at least a year;
- failed to have reasonable and regular contact with the child for at least a year;
- failed to have any contact with the child for any period of 30 consecutive days; or been a party in investigations by a law enforcement agency or county department of social services regarding the health and welfare of the child.
The Family Law section believes that there is no valid reason to give grandparents preferential treatment over all other relatives; courts need discretion to determine what is in the best interests of a child.
20 BILLS OF INTEREST (and status):
In the House
1. HB 1203 - Concerning the definition of the term "material change" for purposes of the laws regulating transactions involving licensed hospitals. By Rep. M. Carroll and Sen. Boyd. Defines the term "material change", for purposes of the laws relating to transactions involving licensed hospitals, to denote the likely deterioration or reduction in the quality, accessibility, or availability of health care services in the affected communities served by a hospital. Bill passed amended out of House Human Services Committee and awaits action on 2nd Reading in the House.
2. HB 1208 - Concerning juveniles against whom charges are directly filed in a district court. By Rep. Levy and Sen. Shaffer. For purposes of authorizing a district attorney to directly file charges in district court against a juvenile ("direct file"), changes the minimum age of the defendant from 14 to 16 years. Removes vehicular homicide and vehicular assault from the crimes eligible for direct file. Permits a district court to sentence a juvenile to the youthful offender system as a result of a plea to a class 2 felony if the juvenile was originally charged with a class 1 felony and the district attorney stipulates or the court finds there is no reasonable likelihood of conviction on the class 1 felony. Permits the district court to sentence a juvenile who is convicted as an adult to a juvenile disposition if the court finds the interests of the juvenile and the community are better served by a juvenile disposition. Requires the district court to sentence a juvenile who is convicted as an adult to a juvenile disposition for conviction of an offense for which criminal charges could not have been originally filed by information or indictment. States that, if a juvenile is convicted as an adult and receives a juvenile disposition, the juvenile's conviction shall be adjudicated as a juvenile delinquency. Creates a reverse-transfer process. Assigned to House Judiciary and awaits a committee hearing on Wednesday, February 20 at 1:30 p.m.
3. HB 1211 - Concerning limiting spousal privilege to prevent married couples from invoking the privilege to hinder civil liability when the legally actionable event takes place prior to the marriage. By Rep. Sonnenberg. Amends the spousal privilege to prevent spouses from invoking the privilege in a civil action with regard to an act by either one or both spouses that occurred prior to the marriage. Assigned to the Judiciary Committee and awaits a committee hearing on Tuesday, February 19 “upon recess.”
4. HB 1212 - Concerning the continuation of the real estate commission, and, in connection therewith, repealing the requirement for group errors and omissions insurance, authorizing service of process by mail, repealing the licensure of real estate salespersons, modifying continuing education requirements, altering the membership of the commission, repealing the licensing reciprocity requirement, expanding the grounds for discipline, authorizing name-based criminal history background checks, requiring fines to be deposited in the general fund, and altering the hiring authority for employees of the division of real estate. By Rep. M. Carroll and Sen. Tapia. Sunset Process - House Business Affairs and Labor Committee. Continues the real estate commission until July 1, 2017, pursuant to the provisions of the sunset law. Repeals the requirement that the commission provide a group errors and omissions insurance policy. Authorizes service of process on real estate brokers by mail rather than upon the secretary of state. Repeals the licensure of real estate salespersons. Adds 4 hours of content to the required annual commission update course and requires the commission to approve all other continuing education courses. Replaces the member of the commission who was required to be a subdivision developer with a member of the general public. Eliminates the reciprocity requirement from the statute authorizing a license by endorsement of another state. Expands the grounds for discipline. Authorizes name-based criminal history background checks when a candidate's fingerprints are unclassifiable. Requires fines to be deposited in the general fund. Specifies that the director of the division of real estate, not the executive director of the department of regulatory agencies, hires the division's employees. Amended and passed the House Business Affairs Committee and referred to the Finance Committee.
5. HB 1215 - Concerning continuation of the authority of municipalities to contract with community health care providers. By Rep. Roberts and Sen. Boyd. Sunset Process - House Health and Human Services Committee. Expands the authority of a municipality with a population of 20,000 people or less to contract with any licensed health care provider to provide services for the municipality. Repeals the sunset of the contracting authority of the municipalities. The bill passed 2nd Reading in the House on Friday, February 15.
6. HB 1217 - Concerning amending statutes related to evidence in sexual assault cases to conform with the federal "Violence Against Women Act". By Rep. Roberts and Sen. Shaffer. Prohibits a law enforcement agency, prosecuting officer, or other government official from asking a sexual assault victim to take a lie detector test as a condition of proceeding with the criminal investigation or prosecution. Prohibits a law enforcement agency from asking or requiring a sexual assault victim to participate in the criminal justice process in order to receive a forensic medical exam that includes the collection of evidence ("exam"). Requires the division of criminal justice in the department of public safety, and not the victim, to pay for the exam. Requires a medical facility that performs an exam on a victim that is not at the request of a law enforcement agency to contact law enforcement regarding the storage of the evidence. Passes unamended from the House Judiciary Committee to the House for 2nd Reading.
7. HB 1219 - Concerning global position monitoring for certain sex offenders released into the community. By Rep. B. Gardner and Sen. Cadman. Requires certain sex offenders who are released on parole or sentenced to probation to be subject to global position monitoring. Assigned to the Judiciary Committee and awaits a committee hearing on Tuesday, February 19 “upon recess.”
8. HB 1221 - Concerning changes to clarify existing policy in programs administered by the department of human services for people who qualify for public assistance. By Rep. Buescher and Sen. Keller. Makes technical changes to clarify existing policy for programs administered by the department of human services for people who qualify for public assistance. Exempts from the mandatory comprehensive and uniform client assessment process the home care allowance program, adult foster care, and in-home services under the federal "Older Americans Act of 1965". Specifies that adult foster care facilities shall be licensed by the department of public health and environment. Specifies the amount of the home care allowance grant. Passed unamended from House Human Services Committee to 2nd Reading.
9. HB 1225 - Concerning an increase in the property tax exemption for business personal property. By Rep. Rice and Sen. Williams. Incrementally increases the exemption from property taxation for personal property listed on a single personal property schedule up to $7,000 for the property tax year commencing January 1, 2011. Adjusts the amount of the exemption on a biennial basis thereafter for inflation. Rounds the inflation adjustment up to the nearest hundred dollars. Requires the property tax administrator to calculate the amount of the exemption and publish the amount on the web site maintained by the division of property taxation in the department of local affairs. Assigned to the Finance Committee and awaits a committee hearing on Tuesday, February 19 “upon recess.”
10. HB 1227 - Concerning the public utilities commission, and, in connection therewith, continuing the public utilities commission under the sunset law. By Rep. Madden and Sen. Tapia. Sunset Process - House Transportation Committee. Continues the public utilities commission (PUC) for 11 years, until 2019.
Gives the PUC authority to impose administrative fines against fixed utilities in addition to its existing authority to impose administrative fines against motor carriers. Allows the PUC to control litigation by the attorney general seeking to recover civil penalties. Exempts rule-making proceedings from requirements relating to ex parte discussion of pending matters with PUC commissioners and administrative law judges.
Eliminates obsolete references to telegraph operations and to regulatory issues as to which state action has been preempted by federal law, including railroad-railroad crossings and time limits for pickup and delivery by motor carriers of property.
Requires all municipally owned utilities and cooperative electric associations, in addition to investor-owned utilities, to comply with the net metering and customer-generation incentive provisions of "Amendment 37", the 2004 initiated statute.
Expressly authorizes the PUC to invite and directs the PUC to consider, when relevant, amicus briefs and other information provided by state agencies (including the department of public health and environment, the division of local government within the department of local affairs, the department of natural resources, and the governor's energy office) in both rule-making and adjudicatory proceedings, whether or not the PUC grants these agencies formal status as intervenors in the proceeding. Expands the statutory directive of the office of consumer counsel to include representation of the social and environmental interests, in addition to the economic interests, of residential, agricultural, and small business consumers of utility service.
Harmonizes eligibility requirements for the low-income energy assistance and low-income telephone assistance programs. Establishes that to qualify for either program, a utility customer must be a citizen or legal resident of the United States and a resident of Colorado and must have a household income at or below 185% of the federal poverty level. Requires providers of interconnected voice-over-internet-protocol (VOIP) service to pay into the Colorado high-cost service mechanism.
Shifts the burden of proof in applications for taxicab certificates, from the applicant to those protesting the application, with regard to the question of whether the public convenience and necessity require the issuance of a new certificate within the proposed geographic area of operation. Includes investor-owned water and sewer companies in the definition of a public utility subject to PUC oversight. Makes conforming amendments and removes an obsolete reference. Assigned to the Transportation and Energy Committee and awaits a committee hearing on Thursday, February 21 “upon recess.”
11. HB 1228 - Concerning financial responsibility for unfair business practices in the sale of insurance. By Rep. Green. Authorizes the commissioner of insurance to collect restitution from insurance producers and insurance companies for wrongful acts. Requires an insurer to be financially responsible for the unfair business practices of an insurance producer authorized to sell a product or plan of the insurer, if the insurer knew or should have known about the unfair business practices. Assigned to the Business Affairs and Labor Committee and awaits a committee hearing on Monday, February 18 at 1:30 p.m.
12. HB 1229 - Concerning persons who provide temporary care in a licensed family child care home. By Rep. Weissmann. Defines the term "substitute child care provider" to include persons who provide temporary care in a family child care home during the absence of the licensed provider. Requires a substitute child care provider to be certified by the department of human services, to submit to a fingerprint-based criminal history records check, and to be ineligible to serve as a substitute child care provider if he or she has been convicted of certain crimes.
Requires the state board of human services to promulgate rules for the certification of substitute child care providers. Requires the state board of human services to establish the circumstances under which a licensed family child care home provider must use a certified substitute child care provider when the licensed provider is absent from the home. Assigned to the Health and Human Services and awaits a committee hearing on Monday, February 18 at 1:30 p.m.
13. HB 1232 - Concerning the domestic violence offender management board, and, in connection therewith, continuing the domestic violence offender management board. By Rep. Stafford and Sen. Bacon. Sunset process - House Judiciary Committee. Continues the domestic violence offender management board ("board") until July 1, 2017. Repeals obsolete provisions.
Allows the board to adopt and implement specific standards for the treatment of incarcerated offenders and for juvenile offenders. Allows the board to develop a renewal process for treatment providers who wish to remain on the approved provider list. Gives the board the authority to increase the application fee up to $300 to cover the costs associated with the initial application and the renewal applications. Removes the requirement that the board conduct a background investigation.
Directs the board to require approved treatment providers to complete mandatory continuing education courses, reviewed and approved by the board, in areas related to domestic violence.
Requires the board to develop a process for the receipt, investigation, and disposition of complaints against domestic violence offender treatment providers relating to the treatment providers' treatment of domestic violence offenders. Provides that the complaint and information related to the investigation shall not be made public. Makes the disposition of a complaint a public issue if the board takes action against a treatment provider based upon the complaint. Allows the board to remove a domestic violence treatment provider from the approved provider list. Assigned to the Judiciary Committee and awaits a committee hearing on Tuesday, February 19 “upon recess.”
14. HB 1237 - Concerning the regulation of qualified intermediaries. By Rep. Judd. Requires registration of persons and entities that facilitate like-kind exchanges pursuant to the federal tax code ("qualified intermediaries and qualified intermediary officers"). Specifies procedures for qualified intermediaries and qualified intermediary officers and prohibits certain practices. Gives the director of the division of registrations within the department of regulatory agencies rule-making and regulatory authority. Establishes registration standards. Requires record-keeping. Specifies complaint, investigation, and disciplinary procedures. Repeals the law in the year 2018, subject to sunset review. Assigned to the Business Affairs and Labor Committee and awaits a committee hearing on Thursday, February 21 at 1:30 p.m.
15. HB 1240 - Concerning continuation of the regulation of debt collection, and, in connection therewith, repealing the collection agency board. By Rep. Butcher and Sen. Sandoval. Sunset Process - House Business Affairs and Labor Committee. Continues the regulation of debt collectors, but sunsets the collection agency board. Requires a collection agency to notify a consumer, in the initial communication, of the right to discontinue further communications except as authorized by law. Authorizes the attorney general to change its web site address without conflicting with certain notice provisions of statute.
Eliminates the collections manager's examination. Requires limited liability companies to inform the administrator of certain changes to corporate structure, governance, and control. Repeals a requirement that a collection agency maintain an office in the state and replaces it with a requirement that the agency maintain a toll-free telephone number. Includes identity theft and computer crimes as a basis for license discipline or denial. Increases from $1,000 to $2,000 the administrative fine for collection agency violations. Passed out of House Business Affairs Committee and was referred to the Appropriations Committee.
In the Senate
16. SB 153 - Concerning licensure of home care agencies by the department of public health and environment. By Sen. Boyd and Rep. Farrandino. Requires the department of public health and environment (department) to license home care agencies.
Makes it unlawful for an unlicensed entity to operate a home care agency without meeting license application requirements and obtaining a license by specified dates. Creates penalties for entities that do not comply with the licensing requirements.
Requires the department to promulgate rules that provide minimum standards for the operation of home care agencies. Requires the rules to include inspection requirements; educational, training, and experience standards, and requirements that address the character of the applicants; authorized enforcement remedies; and written plans required to be submitted by the agencies to the department.
Creates a home care advisory committee for the purpose of advising the department and the state board of health regarding the promulgation of rules and licensing issues.
Creates a home care agency cash fund, to consist of fees and any civil penalties paid by agencies, to pay for the costs of the department to implement and maintain regulation of home care agencies.
Requires home care agencies to apply to the department for licensure. Requires the department to inspect the home care agencies of each applicant. Authorizes the department to make additional inspections as necessary. Requires the owner, applicant, or licensee to submit to fingerprint-based criminal history record checks. Specifies standards for the department to refuse to issue a license. Allows the department to issue a provisional license if the applicant cannot conform to all of the minimum standards required by the department so long as the applicant demonstrates an effort to comply.
Requires a home care agency to require persons seeking employment to submit to a criminal history record check.
Allows the department to suspend, revoke, or refuse to renew a license of a home care agency. Allows the department to impose intermediate restrictions or conditions on a license. Specifies an appeals process for the denial, suspension, or revocation of a license.
Repeals the licensure requirements of home care agencies, effective July 1, 2014. Assigned to the Health and Human Services Committee.
17. SB 157 - Concerning the state income tax modification for Colorado capital gains, and, in connection therewith, for income tax years for which specified state income tax modifications for Colorado capital gains used to refund excess state revenues are not allowed, allowing a partial modification for capital gains earned on property, stock, or an ownership interest acquired before May 9, 1994, and offsetting the state revenue impact of the partial modification by reducing the modification allowed for capital gains earned on property, stock, or an ownership interest acquired on or after May 9, 1994. By Sen. Schwartz. For income tax years commencing on or after January 1, 2009, for which specified state income tax modifications for Colorado capital gains used to refund excess state revenues are not allowed:
- Allows a state income tax modification for a portion of the capital gains earned on real or tangible property located within Colorado or stock or an ownership interest in a Colorado company, limited liability company, or partnership that was acquired before May 9, 1994; and
- Offsets the state revenue impact of the modification by reducing the percentage of capital gains earned on real or tangible property located within Colorado or stock or an ownership interest in a Colorado company, limited liability company, or partnership that was acquired on or after May 9, 1994, for which a state income tax modification is allowed.
Assigned to the Finance Committee.
18. SB 158 - Concerning the inclusion for urban renewal purposes of unincorporated land within a county that is contiguous to a portion of an urban renewal area located within a municipality. By Sen. Tochtrop. Permits an urban renewal plan, urban renewal project, or urban renewal area to include unincorporated territory outside the boundaries of a municipality but contiguous to a portion of the urban renewal area located within the municipality. Prohibits such territory from being included in the plan, project, or area without the consent of the board of county commissioners exercising jurisdiction over the unincorporated territory proposed for inclusion and the consent of each owner of real property within the unincorporated area proposed for inclusion.
In addition to the procedures for approval of a proposed urban renewal plan by the governing body of the municipality proposing the plan, imposes additional requirements that must be met for the inclusion of the unincorporated territory in the urban renewal plan, project, or area.
Permits any urban renewal plan approved in accordance with the act to be modified on the condition that the modification is approved by the board of county commissioners, the governing body, and the urban renewal authority.
Permits an urban renewal authority, a municipality, and a county to enter into an intergovernmental agreement to further effectuate the purposes of the act. Assigned to the Local Government Committee.
19. SB 162 - Concerning interest on fiduciarily held real estate accounts for the purpose of financing the provision of affordable housing, and, in connection therewith, creating the fiduciary earnings for affordable housing fund and the fiduciary earnings for affordable housing foundation. By Sen. Boyd and Rep. Riesberg. Requires any closing and settlement services provider to pool and commingle trust money received from clients or beneficial owners in connection with escrows and closings.
Requires the closing and settlement services provider responsible for the trust money, as early in the transaction as practicable, to give notice to all parties to the transaction that the trust money, absent direction from the parties, will be placed in a fiduciary account that may generate interest and that such interest, if any, will be donated to the fiduciary earnings for affordable housing foundation (foundation).
Specifies that the requirements of the act shall not apply to any escrow, settlement, or closing where a client or beneficial owner requests in writing that any interest earned on trust money be returned to the client or beneficial owner. Specifies that interest earned on trust money is the property of either the seller in connection with the sale of an interest in real property in the state or a borrower in connection with the refinancing of an interest in real property in the state.
Except for trust money placed in a commingled account, specifies the type of deposit or investment vehicle into which trust money may be deposited.
Specifies the requirements of the act do not apply to money otherwise being collected for the purpose of funding either the Colorado association of realtors housing opportunity foundation or the Colorado lawyer trust account foundation.
At least once each quarter, requires the financial institution in which a commingled account is maintained to pay the interest earned on the account, less any service charges of such institution, to the fiduciary earnings for affordable housing foundation (foundation) to enhance the availability of affordable housing throughout the state.
Requires the commissioner to adopt such rules as are necessary for the effective administration and implementation of the act.
Specifies the type of financial institution in which trust money affected by the act is required to be deposited and maintained. Specifies rules governing the administration of interest earned on trust accounts.
At the time of the remittance of interest, requires the financial institution holding the trust money to provide a statement to the foundation and the commissioner of insurance showing certain information specified in the act.
Creates the foundation as a Colorado nonprofit corporation that is not subject to administrative direction by any department, commission, board, bureau, or agency of the state. Places governance of the foundation in a board of directors (board). Specifies requirements concerning the membership, appointment, and administration of the board. Requires any board member, employee, or other agent or adviser of the foundation who has a direct or indirect interest in any contract or transaction with the foundation to disclose this interest to the foundation, and prohibits any board member, employee, or other agent or adviser having such interest from participating on behalf of the foundation in the authorization of any such contract or transaction. Specifies general powers of the foundation.
Requires all money remitted pursuant to the act to be distributed by the foundation on an annual basis, less any reserved amount approved by the board, as specified in the act. Specifies the permissible purposes and uses of money awarded from the fund.
Requires annual reporting by the foundation to the governor and the general assembly. Makes conforming amendments. Makes legislative findings anddeclarations. Defines terms. Assigned to the Finance Committee.
20. SB 164 - Concerning the alignment of the limitation on damages for noneconomic loss or injury in actions brought pursuant to the "Health Care Availability Act" with the limitation on damages for noneconomic loss or injury in general civil actions. By Sen. Groff and Rep. T. Carroll. Amends the definition of "direct noneconomic loss or injury" in actions brought under the "Health Care Availability Act" to exclude physical impairment or disfigurement.
Aligns limitations on damages for noneconomic loss or injury in a medical malpractice case with the limitations for noneconomic loss or injury in other civil cases for acts or omissions occurring on or after July 1, 2008. Assigned to the State, Veterans and Military Affairs Committee and awaits a committee hearing on Monday, February 18 at 1:30 p.m.
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