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Raleigh, North Carolina
April 6, 2007
This legislative session continues to be a horse of a different color in North Carolina . Heading into our 11th week of session, we are swamped with bills but unlike most past sessions, there do not seem to be those dominate issues that are guiding the two chambers to an ultimate goal. The ongoing grand jury investigations into various elected officials and lobbyists seem to be the most pressing issue on the minds of legislators. Everyone is still grappling to comply with the new ethics law and in the mean time hoping to adjourn as quickly as possible. However, budget negotiations between the House and Senate aren't likely to progress as quickly as some would hope. The House has pushed their target date for presenting their budget from April 24th to May 4th. The Senate then takes the budget and adjusts for their preferences before sending it back to the House for review. This can be a fairly arduous process in itself.
This week, House and Senate members worked through the majority of the day on Thursday - defying the usual rush to hit the road early for a holiday weekend. However, both chambers did announce a no-vote session for Monday night so business-as-usual resumes on Tuesday. Many House members will be scurrying to submit bills to the bill drafting division as their deadline for public bills is Tuesday afternoon. We should know by April 18th the majority of the bills we are looking at for the session. Finance and Appropriations bills still have until May 9 to show their face.
Please read through the list of bills introduced this week at the end of this weekly review and provide input for us on how these issues do or do not affect you and whether you want us to amend, pass or kill.
After another week of swimming through a sea of bills, your Retail Week in Review at the NCGA is packed with information for your review.
1. Allowing plaintiffs more challenges in Jury Selection - postponed
2. Consumers' Rebate Redemption Deadlines - SB 1055 - pulled from committee to work out differences
3. Gift Card Fees- met with sponsor this week
4. Duty to Report Child Pornography - met with Senate committee staff
5. Lose drivers license for aiding/abetting underage drinking - introduced
6. ABC Violations/Fee Changes - met with stakeholders this week
7. Electronics Recycling Bills - Met with bill sponsor this week
8. DOT Express Permitting - Working on bill draft
9. Energy Efficiency - Still brewing
10. Collective Bargaining - pro-union group rallies this week
11. Smoking Ban - re-referred to committee
12. Local Option Sales Tax Bills - multiple bills filed
13. ORT - House bill sent to drafting this week
14. Minority Pharmacist Recruitment - bill filed in House
15. Diabetes Management - working on bill draft
16. E-Records Bill - bill filed this week
17. Sheriffs Access to Rx - postponed in House committee
18. Pseudoephedrine Schedule 5 Controlled Substance Bill - Thank you for your phone calls!
1. CIVIL JURY SELECTION/EQUAL CHALLENGES -- HB 244 - Representative Bill Faison (D-Orange) Representative Bill Faison, a trial attorney from Orange County , introduced HB 244 which was scheduled to be heard on the House floor this past Tuesday. However, the business community caused HB 244 to run into a brick wall and the bill was pulled from the calendar at the last minute and the bill has been rescheduled for next week.
The bill, which enjoyed bipartisan sponsorship including that of Minority Leader Paul "Skip" Stam (R-Wake) would require that when judges allow multiple defendants to double or triple the number of presumptive challenges of jurors that single plaintiffs bringing the cases be allowed to challenge the same number of jurors. Under current law, a judge may award up to six challenges to each defendant, while a single plaintiff gets only six. The change would likely have an affect on product liability and medical malpractice cases where multiple defendants are typical - the types of cases in which Faison has been a very successful trial attorney.
NCRMA joined with the North Carolina Chamber, the N.C. Medical Society and others to lobby House members hard Tuesday causing the vote postponement. We explained that while plaintiffs enter into a suit voluntarily with the same interest - multiple defendants, possibly with differing interests, are brought into a case together involuntarily and need the individual discretion if they have antagonistic views. This bill also takes away the discretion that is currently provided to a judge in this situation.
2. CONSUMERS' REBATES REDEMPTION DEADLINE -- SB 1055 - Senator Richard Stevens (R-Wake) http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S1055v1.html
This bill requires persons offering rebates to mail the rebate within 30 days after the postmark date of the completed rebate form submitted by the consumer. The rebate forms must conspicuously show the terms of the rebate and its expiration date and the bill makes a violation an unfair trade practice and subject to all enforcement and penalty provisions applicable to unfair trade practices. The bill would be effective October 1, 2007.
We have already spoken with Senator Stevens and he has stated that he will work with us to make sure the bill is fair. We have already been in contact with the cell phone companies as well on this legislation. The bill is scheduled for the Senate Commerce committee on Tuesday morning at 11:00am. We are to meet with Senator Stevens again on Monday with proposed language.
3. PROHIBIT GIFT CARD MAINTENANCE FEES -- SB 1517 - Senator Robert Atwater (D-Chatham) http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S1517v1.html
North Carolina State Senator Bob Atwater (D-Chatham), at the direction of Senate Leadership, has introduced legislation - Senate Bill 1517 - that prohibits the use of maintenance or dormancy fees on gift cards or gift certificates. A violation would be an unfair and deceptive trade practice. The bill would be effective October 1 of this year and violation of the provision is punishable by a $1,000 civil penalty. The bill applies to gift cards sold on or after that date.
We met with Senator Atwater this week to explain that when we were pushed to leave gift cards without an expiration date, it creates the problem of retailers having an open-ended liability on their books. We also explained that bank gift cards, as well as MasterCard and visa often are just as likely to charge dormancy fees as retail gift cards and there is a question as to whether or not NC will have jurisdiction in regulating those cards which would create an uneven playing field. We explained that many states allow for dormancy fees after one year or two years if the maintenance fees or dormancy fees are clearly stated on the gift card.
Please take a look at this bill and tell us how you would like us to try and amend it.
4. FILM PROCESSING/REPORTING OF CHILD PORNOGRAPHY -- House Bill 27 - Representatives Ray, Goforth, Spear and Glazier http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H27v2.html
HB 27 was amended before it passed the House to incorporate our requested changes. Now, under HB 27:
1) You have the option of filing a report with either the hot line or with local law enforcement;
2) Retailers are under a duty to report child pornography rather than facing criminal penalties for failure to report;
3) A person in your company who observes such child pornography may report the activity to a supervisor to report;
4) A person or a third-person contractor who reports child pornography receives criminal and civil immunity if the report is made in good faith;
HB 27 is now in the Senate Judiciary 1 committee, Chaired by Senator Martin Nesbitt (D-Buncombe). In a meeting with Senator Nesbitt last week, he requested that we talk to committee staff to make them aware of the efforts in the House and the comparable Senate bills as he would like to hear all of the related bills at the same time in his committee. SB 69, introduced by Senator Steve Goss (D-Watauga), is a companion bill to HB 27 and SB 132 on Sexual Predators also includes language on a film processor/developer's duty to report. In our meeting with staff, we explained the progress we had made in the House and with the Attorney General's office and that whichever legislation became the vehicle of choice - we were happy with the House version.
5. DRIVER'S LICENSE REVOCATION FOR ABC VIOLATION -- HB 1277 - Representative Ty Harrell (D-Wake) http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H1277v1.html
This bill directs the Division of Motor Vehicles (DMV) to revoke a person's driver's license for one year if the person is convicted of aiding and abetting by an underage person or by a person of lawful age (was, by an underage person) or of selling alcohol to an underage person effective December 1, 2007.
The language in the bill could be easily misinterpreted as written. It refers to a statute that also includes "selling to an underage person." We met with Representative Harrell this week to discuss the concern and offered some clarifying language that would break up the statute of reference. We are continuing to work with Representative Harrell on new language as he was amenable to the change.
6. ABC Violations/Fee Changes -- SB 838 - Senator Stan Bingham (R-Davidson)
http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S838v1.html
Senate Bill 838 was introduced by Senator Stan Bingham (R-Davidson) as requested by the North Carolina Alcoholic Control Commission Chairman Doug Fox. The bill would double the penalties for ABC violations as follows:
For a first violation from $500 to $1,000
For a second violation from $750 to $1,500
For a third violation from $1,000 to $2,000
For an offer in compromise where the Commission could suspend of revoke an ABC permit, it would allow the Commission to charge the permittee up to $25,000 rather than the current amount of $5,000.
Your staff met with Senator Bingham early this week to discuss the bill. We explained that the penalties are pretty stiff as they are, and we make an enormous effort with respect to training and procedures to comply with the regulations to the fullest. Senator Bingham worked with us to organize a meeting with representative from the ABC Commission as well as the Beer and Wine Wholesalers, Convenience Store Association and the Restaurant and Lodging Association. Andy Ellen explained these same concerns to the ABC Commission staff and questioned the need for doubling penalties when they already have the ability to fine up to $5,000. Senator Bingham was helpful in getting the Commission to agree to look at some new language that would limit the violations that would be susceptible to these exorbitant fines.
7. ELECTRONICS RECYCLING -- Senate Bill 1525 - Senator Kay Hagan (D-Guilford)
http://www.ncga.state.nc.us/Sessions/2007/Bills/Senate/HTML/S1525v0.html
Your staff met with Senator Kay Hagan (D-Guilford) this week on Senate Bill 1525. Hagan's district is home to Dell and this bill, supported by Dell, is one that we have worked on since last fall. By the list of co-sponsors, this is the bill we expect to see move as the Senate Majority Leader and the Senate Finance Chair are co-sponsors as is the Senate Minority Leader.
As filed, both bills only deal with computers. In our meeting with Senator Hagan this week, we re-emphasized the importance of including televisions in this legislation and she was receptive to the addition. She plans to re-incorporate our language into a new proposed committee substitute before the bill is heard in committee.
8. DOT EXPRESS PERMITTING -- Working on bill draft
Earlier in the session, Scott Mason with Lowes was in town to meet with legislators and the issue of DOT permitting arose. Unlike the Department of Environment and Natural Resources, the Department of Transportation does not have an "express permitting" process. It has become an ordeal for many retailers to get driveway, encroachment or signaling permits in a timely manner. We have been meeting with the legislative liaison, Johanna Reese, with the Department of Transportation (who incidentally formerly worked with DENR during their express permitting début). She has been receptive to our concerns and through her conversation with DOT staff, has learned that there are delays, particularly in the area of driveway permits. We are very appreciative of Scott Mason's work to bring this issue to the forefront and to help us with language for a draft bill.
DOT's concern is that there is not enough time to try to implement a DOT express permitting program this year as it took an appropriation for DENR to do so and their budget has already been submitted. They are more inclined to put a study in place this year with the potential for a program start-up date some time in 2008. We are continuing to work with DENR on language as well as House Transportation committee members on a solution. We have several potential bill sponsors ready to introduced legislation if we can come to an agreement with DOT.
9. ENERGY EFFICIENCY - SB 3 - Senator Charlie Albertson (D-Duplin) -- http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S3v1.html
Senate Bill 3 is the energy bill that calls for more renewable energy sources and restructures the way utilities recoup the costs of new plant construction. We believe Senate leadership will soon be pushing for the working group to wrap up negotiations. This means that the time has come to submit our specific requests for changes. If you would like to submit changes to the legislation, please make all changes in the original statute. Due to its length, the statute could not be attached, but it can be found online at NCRMA's website: http://www.ncrma.org/Rates%20of%20Public%20Utilities.pdf
The next meeting of interested parties is still scheduled to meet Thursday, April 12 in Room 544 of the Legislative Office Building, (we are told it will most likely be around 2:00 pm, details later) which is located at: 300 North Salisbury Street, Raleigh, NC 27603-5925. We will let you know in advance what time the meeting will be held.
10. COLLECTIVE BARGAINING FOR GOVERNMENT WORKERS -- SB 1543 Sponsored by: Senator Larry Shaw (D-Cumberland)
http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S1543v1.html
SB 1543 would authorize public employees to organize for the purpose of collective bargaining and to create the Public Employee Labor Relations Commission. The bill repeals GS 95-98, which made illegal contracts between government units and labor unions.
Advocates for government workers urged lawmakers Tuesday to abolish a nearly 50-year-old law prohibiting public employees from collective bargaining. Currently, employees can join unions and worker associations in the state, but can't be formally represented by the organizations while negotiation contracts or improvements to pay and benefits.
Reverend William Barber, President of the NC chapter of the NAACP and about 15 other labor leaders and social activists met outside the Legislative Building on Tuesday to motivate legislators to eliminate the ban. About a dozen states do not have collective bargaining laws for public employees. According to the N.C. Public Service Workers Union, North Carolina and Virginia are the only states that specifically prohibit state and local governments from entering into collective deals with their employees.
Worker groups, particularly the State Employees Association of North Carolina and Service Employees International Union, have actively backed Democratic candidates in recent years, donating hundreds of thousands of dollars to legislative candidates and get-out-the-vote efforts.
Gov. Mike Easley signed an executive order last year that improved communication lines between public sector employee groups and his office. But the General Assembly has been reluctant to eliminate the bargaining ban with many legislators feeling a change isn't needed.
11. SMOKING BAN -- HB 259 - Prohibit Smoking in Public Places - Representative Hugh Holliman (D-Davidson) http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H259v2.html
A House vote to ban smoking in public places was postponed again. HB 259 was pulled from the House calendar and re-referred to the House Judiciary 1 committee. Holliman thought he could attract more votes by adding some exemptions for small business into the bill but In light of the vote count still not looking favorable, the bill has still not been heard.
12. LOCAL OPTION SALES TAX LEGISLATION -- HB1317 - One cent Local Option Sales Tax - Representative Edith Warren (D-Pitt) http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H1317v1.html
More bills have been introduced that would grant authority to the local Boards of Commissioners to hold a referendum to impose an additional local sales tax (from ½ ¢ to 1¢) to fund school construction or to provide county debt relief.
HB1317 would, effective January 1, 2008, authorize an eligible county to levy a one-cent sales and use tax in addition to the existing 2½ cent local sales and use tax under Articles 39, 40, 42, and 44. The county's board of commissioners may levy the tax by resolution only if it is approved by the voters in a referendum. Levy, collection, and administration of the tax are governed by GS Chapter 105, Article 39, except that the tax does not apply to food. Directs the Secretary of Revenue to distribute the net proceeds monthly on a point-of-origin basis; counties are not required to share the proceeds with municipalities. Counties may use the tax proceeds only for public school capital outlay purposes, community college plant fund purposes, other capital infrastructure needs, road construction, or mental health programs, or to retire indebtedness incurred by the counties for these purposes after levying the tax. Funds are intended to increase spending for these purposes, not to supplant funding.
13. ORGANIZED RETAIL THEFT LEGISLATION -- SB 1270: Amend Larceny Laws, Senator John Snow (D-Cherokee)
http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S1270v0.html
Above is a link to the Senate bill and we expect a companion bill in the House will be filed this week or next. Representative Van Braxton (D-Lenoir) agreed to co-sponsor the legislation and sent the language to bill drafting yesterday. This is an Association initiative and is an omnibus package that seeks to address Organized Retail Theft in North Carolina. The legislation addresses the issues of: retailer-provided property for sting operations, reducing the larceny threshold, switching of bar codes on products, utilizing exit doors, removal of security devices, larceny of infant formula and the aggregation of theft amounts. Senator Hartsell appointed a subcommittee to study ORT: Senators John Snow (Chair), Stan Bingham (R-Davidson), Eddie Goodall (R-Union), Ed Jones (D-Halifax) and Bob Atwater (D-Chatham). In a meeting with Senator Snow this week, he said that he would plan a meeting with the subcommittee in two weeks.
14. MINORITY PHARMACIST RECRUITMENT -- HB 1297 - Representatives Bobby England (D-Rutherford), Linda Coleman (D-Wake) and Alice Underhill (D-Craven)
FUNDS/MIN. RECRUITMENT PHARMACY SCHOOLS
http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H1297v1.html
This bill was filed at our request and appropriates $300,000 for 2007-08 and $300,000 for 2008-09 from the General Fund to the Department of Health and Human Services to recruit minority pharmacists. Currently, only 4% of North Carolina 's pharmacists are minorities and 40 counties lack any minority pharmacist.
15. DIABETES MANAGEMENT LEGISLATION -- Working on bill draft
This week, Mark Gregory with Kerr Drug joined your staff to meet with several House members to talk about Diabetes Self-Management Education (DSME) and the potential for legislation that would extend coverage to NC Medicaid Beneficiaries when a program is ADA accredited. Currently, reimbursement is contingent upon outpatient training services being provided "incident to" the physician.
While the first question for many is cost, we explained that Diabetes management programs are a cost-saver by reducing Hemoglobin A1c, blood pressure, weight and increased compliance to preventative care. Representative Lucy Allen (D-Franklin) was interested in working on legislation with us along with Representative Bobby England (D-Rutherford). Early conversations with the NC Medical Society seem positive as a beneficial education tool.
16. ELECTRONIC PRESCRIPTION RECORDS -- HB 1269 - Prescription Orders/Electronic Image - Representative Lucy Allen (D-Franklin)
http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H1369v0.html
Current law requires every pharmacist-manager of a pharmacy to maintain, for a minimum of three years, the original of every prescription order and refill compounded or dispensed at the pharmacy - except for prescription orders recorded in a patient's medical record.
Representative Allen filed this NCRMA initiated bill which would allow a pharmacy to comply with this requirement by maintaining an electronic image of a prescription order or refill in lieu of a hard copy, if the pharmacy's computer system is capable of providing information required under the North Carolina Pharmacy Practice Act to the Board of Pharmacy within 48 hours after a request for information.
17. SHERRIF'S ACCESS TO PHARMACY DATA -- SB 4 - Senator John Snow (D-Cherokee)
HB 745 - Representatives Joe Kiser (R-Lincoln), Mark Hilton (R-Catawba), Phillip Frye (R-Mitchell) and Mitch Gillespie (R-McDowell)
http://www.ncleg.net/Sessions/2007/Bills/House/HTML/H745v1.html
SB 4 and HB 745 would extend the authority to inspect prescription information of patients maintained by a pharmacy to sheriffs. Andy Ellen testified before the Senate Judiciary II committee when SB 4 was heard and explained the strain already put on pharmacists in North Carolina just to keep up with prescriptions - let alone search for records if the Sheriff's comes into their store. He also explained that the controlled substance monitoring program is going into effect July 1 and that it would be more efficient for Sheriff's to access that system rather than come into a store. SB 4 was referred to the House Health committee after several Representatives we spoke with wanted the chance to closely review the bill and advocate for our concerns. However HB 745 was referred to the House Judiciary II committee. HB 745 was scheduled to be heard this week but after Chairman Dan Blue (D-Wake) heard the concerns from NCRMA and other interested partied, delayed the bill and has said that he plans to get SB 4 in his committee as well to debate the two together with all of the stakeholders present.
18. PSEUDOEPHEDRINE/SCHEDULE V DRUG -- SB 1104 - Senator Julia Boseman (D-New Hanover ) http://www.ncleg.net/Sessions/2007/Bills/Senate/HTML/S1104v1.html
SB 1104 adds pseudoephedrine to the list of Schedule V Controlled Substances effective December 1, 2007. Following up on our meeting with Senator Boseman, your staff also met with Senators Walter Dalton (D-Rutherford) and John Snow (D-Cherokee) who sponsored the meth legislation in 2005. This provision was originally in that legislation but was eliminated. Dalton and Snow both agreed that this was unnecessary as most of the methamphetamine problem is now tied directly to meth super-labs in Mexico and California rather than mom and pop labs that make meth out of cold medicine bought at stores. Other interested lobbyists have been meeting with Senator Boseman as well as Judiciary 1 Chairman Martin Nesbitt (D-Buncombe) to express their concerns with this bill. This bill has not yet been scheduled for committee hearing.
Many thanks to CVS, Kerr Drug, Walgreens, Eckerd and Mike James for making calls regarding SB1104. You help is needed and much appreciated!
HAPPY EASTER!!
It is our pleasure to work on your behalf. Thank you for allowing us to continue to represent the retail perspective before the North Carolina General Assembly since 1902.
Until next week.
Fran Preston (franp@ncrma.org)
Andy Ellen (andye@ncrma.org)
Elizabeth Dalton (elizabethd@ncrma.org)
Lindsey Kueffner (lindseyk@ncrma.org)
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