March 10, 2009
With Little Fanfare, Budget Conferees
Reach Agreement
HB 118 was approved yesterday morning by the House and Senate Budget Conferees with little fanfare. Reps. Harbin (R-Evans), Keen (R-St. Simons Island) and Burkhalter (R-Johns Creek) met with Sens. Hill (R-Reidsville), Williams (R-Lyons) and Rogers (R-Woodstock) in a brief meeting. They politely thanked one another, noting that there were not many "differences" in their Budget ideas. They also remarked that since there was little money, there was essentially no fighting. Sen. Hill noted that now they could move forward with their work on the FY 2010 Budget. HB 118, the mid-year Budget adjustment to the FY 2009 Budget, received a compromise and was then sent to both the House and Senate for their members to approve the Conference Committee Report. The House approved it by a vote of 153 to 3 and the Senate by a vote of 54 to zero. The Conference Committee Report was then immediately transmitted to the Governor.
Rolling to DAY 30! Lawmakers worked late in the day in an effort to get as much legislation pushed through their respective chambers since Day 30, the day on which all legislation must cross from their originating body to the other, will be Thursday, March 12, 2009. The Senate got off to a slightly rocky start with lots of debate on many of its first few bills. Finally, it concluded its work around 7:00 p.m. On the House side, its members worked through not just one but two Rules Calendars with numerous bills clearing their way for review by the Senate.
Trauma funding moved one step closer with the passage of SR 277 by a vote of 48 to 8, the Constitutional Amendment that would place a $10 fee on the annual licensure and registration of passenger vehicles. This "fee" would have to receive voter approval before it would be enacted. Proceeds of the fees collected would be used to fund the Georgia Trauma Trust Fund. Georgia now has 152 acute care hospitals in the State but only 15 of those are trauma hospitals.
Floor News
Senate
SB 25, offered by Sen. Seay (D-Riverdale), authorizes taxpayers to make certain contributions through the income tax payment and refund process to programs for education regarding and alleviation of multiple sclerosis. SB 25 passed the Senate 51 to zero.
Sen. Tolleson (R-Perry) offered SB 44, relating to public schools and contractual/purchasing preferences. This Legislation gives preference to supplies, materials, equipment, and agricultural products that are manufactured or produced in this state. SB 44 passed 45 to 7.
SB 64 passed the Senate 47 to 7. This Legislation, authored by Sen. Reed (R-Atlanta), would require HIV testing of incarcerated persons before discharge.
SB 82, authored by Sen. Unterman (R-Buford), requires secondary metal recyclers to report to the revenue commissioner: the weight, quantity, or volume and a description of the type of regulated metal property purchased, utilizing the specifications of the Institute of Scrap Recycling Industries Circular as the standard as such specifications existed on the effective date of this paragraph, in a purchase transaction together with a dated and time-stamped photograph of the purchased metal property and the name of the photographer. An electronic scan of the driver's license or identification of the person delivering the metals would also be required. In an effort to curb the recent upward trend in metal thefts, the Senate passed this measure 50 to five.
SB 108, relating to the "Georgia Civil Practice Act," adds the new Code Section 9-11-12 which reads as follows:
(j)(1) Stay of discovery. If a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 120 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner; provided, however, that such stay may be extended:
(A) By the court on its own motion;
(B) By agreement of the parties, filed with the court; or
(C) By order of the court upon motion of a party to extend such stay for good cause.
(2) The filing of a motion to dismiss against less than all counts alleged shall only stay discovery related to the challenged claims.
(3) Discovery shall be extended for the duration of the stay of discovery imposed by this subsection.
(4) Upon a showing of good cause, a court may grant a motion for expedited discovery while the motion to dismiss is pending. Good cause may include, but shall not be limited to, discovery needed because a witness will be unavailable during the discovery period or because a party is seeking an interlocutory injunction.
(5) If a motion to dismiss raises defenses set forth in paragraph (2), (3), or (7) of subsection (b) of this Code section, limited discovery needed to respond to such defenses shall be permitted until the court rules on such motion.
(6) The court shall decide any motion to dismiss which results in the imposition of a stay of discovery pursuant to this subsection during the time period in which such stay exists.
SB 108 passed the Senate easily, 51 to zero.
Sen. Hill (R-Marietta) offered SB 158 which provides exceptions for when fiscal notes shall be provided for Bills. This Bill passed 47 to five.
SB 170, offered by Sen. Adelman (D-Decatur), prohibits certain companies that have certain business operations in Sudan to bid on or submit a proposal for state contracts. SB 170 passed the Senate 53 to one.
Sen. Balfour (R-Snellville) offered SB 201, which provides for voluntary contributions through individual income tax returns and other mechanisms for cancer research. This Bill passed the Senate 47 to zero.
SB 223, creating the Women's Reproductive Health Legislative Oversight Committee, passed the Senate 41 to 11.
Sen. Stoner (D-Smyrna) offered his Legislation, SB 233, requiring that the Board, no later than July 1, 2010, shall administer or approve an examination for purposes of certifying and recertifying emergency medical technicians which measures competency directly related to the scope of practice for emergency medical technicians as established by the board; provided, however, that this shall not be construed to prevent the board from accepting other additional examinations for purposes of certifying and recertifying emergency medical technicians. SB 233 passed the Senate 50 to zero.
SB 239 requires that any parent, guardian, or other person having control or charge of any child or children subject to mandatory attendance pursuant to this subsection who becomes a new resident of a local school system in this state during the academic year of such school system shall within 10 days of such new residency enroll such child or children in a public school, a private school, or a home study program that meets the requirements for a public school, a private school, or a home study program. Sen. Ramsey's Bill (D-Decatur), SB 239, narrowly passed the Senate 36 to 18.
SR 257 passed the Senate 55 to zero. This Resolution creates the Alzheimer's Disease and Other Dementias Task Force.
SR 453, authored by Sen. Johnson (R-Savannah), creates the Georgia Tax Reform Commission of 2009, which would provide access to certain otherwise confidential Department of Revenue information. This Resolution passed the Senate 44 to 8.
House
HB 315 offered by Rep. Barnard (R-Glennville), relates to real estate brokers, requiring brokers and salespersons to disclose any fees, charges, rebates, profits, commissions, referral fees, or other valuable consideration for any service related to a real estate transaction settlement. HB 315 passed the House 147 to 2.
Rep. Ralston (R-Blue Ridge) presented HB 324, relating to state courts. This Legislation would require the payment of costs of the tribunal appealed from before hearing of an appeal in state court, in the same manner as currently required in superior court. HB 324 passed 157 to zero.
HB 550 authored by Rep. Meadows (R-Canton) allows a life insurer an alternate form of payment. Under this change payment may be provided as a paid-up life insurance policy with a cash value equal to 100 percent of the policyholder's equity in the insurer. HB 550 easily passed the House 149 to zero.
HB 552 was presented to the House by Rep. Barnard (R-Glennville), which changes well and borehole standards. New language states that "no well or borehole shall be drilled or used for the purpose of injecting any surface water into the Floridian aquifer in any county governed by the Georgia coastal zone management program provided by Code Section 12-5-327 before July 1, 2014". HB 552 passed off of the House Floor 149 to zero.
Rep. Willard (R-Sandy Springs) presented the House with HB 245. This Legislation would increase the maximum number of days a delinquent or unruly child could be ordered to spend in a youth development center to 60 days. HB passed 102 to 53.
HB 254, presented by Rep. Peake (R-Macon), requires the Department of Human Resources to exercise due diligence to find and provide notice to all identified adult relatives. This is subject to exceptions due to family or domestic violence. HB 254 passed the House 152 to zero.
HB 115, offered by Rep. Jerguson (R-Acworth), relating to the manufacture, distribution, and package sales of distilled spirits, so as to require the provision of certain identifying information to the commissioner to enable a determination to be made as to whether a person or a person's family holds more than two retail dealer licenses. HB 115 passed 142 to 15.
HB 123 was presented to the House by Rep. Ramsey (R-Peachtree City). This Legislation expands the definition of child molestation to include, "by means of an electronic device, transmits images of such person engaging in, inducing, or otherwise participating in any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." HB 123 handily passed the House 157 to 3.
HB 168, authored by Rep. Cox (R-Lilburn), created a stir on the House Floor with many Members taking the Well to advise that this Legislation would hurt small telecommunications companies. HB 168 seeks to modernize telecommunications competition by eliminating artificial and outdated subsidy mechanisms in the form of contributions to the Universal Access Fund. This Bill passed 123 to 42.
HB 303, offered by Rep. Rogers (R-Gainesville), authorizes solicitors-general and assistant solicitors-general to have access to child abuse records for official purposes. HB 303 passed 160 to zero.
HB 381 changes provisions to "Georgia Food Act" enforcement, allowing county officials to act as an agent to the Department of Agriculture, in order to make inspections. Rep. England's (R-Auburn) Bill passed the House 163 to zero.
HB 473 authored by Rep. Harbin (R-Evans), provides provisions for the Department of Community Affairs to provide grants for clean energy properties. This Legislation passed 157 to three.
Rep. Lunsford (R-McDonough) presented HB 523 to the House, citing it was a measure to protect the patient. HB 523 would require pharmacists to obtain the prescribing doctor's permission before substituting generic drugs for transplant patients. Every member of the House, who is also a pharmacist, took the Well to oppose HB 523, claiming that it was an unnecessary piece of legislation. "Brand necessary" indications are already required. HB 523 was soundly defeated in the House 64 to 103.
No debate took place over HB 228, offered by Rep. Butler (R-Carrollton), which would downsize one of the State's largest agencies, the Department of Human Resources. This Legislation would create a new Department of Public and Behavioral Health. The new Department would take on the responsibilities of the Department of Mental Health. The Department of Aging would be moved to the new Department of Human Services. HB 228 now moves on to the Senate after it passed the House 147 to 12.
HB 57, offered by Rep. Powell (D-Hartwell), relates to motor vehicles, allowing the Department of Revenue to administer the federal Unified Carrier Registration Act of 2005. HB 57 passed 156 to one.
HB 441 was presented to the House by Rep. O'Neal (R-Warner Robbins). HB 441 provides for the expedited payment of sales and use tax refund claims secured by a satisfactory bond. This Bill passed 164 to one.
HB 93, authored by Rep. Sims (R-Augusta) allows the Georgia Medical Center Authority to take partial and joint ownership interests in real property. HB 93 easily passed 163 to zero.
HB 258 passed the House 156 to zero. HB 258 allows a minor of a permanently disabled guardian or parent to obtain a restricted learner's permit at the age of 14.
HB 434 provides that dependent children of military personnel stationed in Georgia on active duty shall be deemed to meet the residency requirements for purposes of HOPE scholarships and grants. This Bill passed the House 162 to zero.
New Legislation
SB 257 – Sen. Balfour (R-Snellville) offered an amendment to Title 47, relating to retirement and pensions. Eligible university system employees that elected to participate in the Regents Retirement Plan in lieu of the Teachers Retirement System of Georgia shall be revocable at the employees' will.
SB 259 – Sen. Unterman (R-Buford) proposed changes to Article 7 of Chapter 3 of Title 47, relating to retirement allowances, disability benefits, and spouses' benefits under the Teachers Retirement System of Georgia. The University System of Georgia may employ a retired member of the retirement system who had been retired at least 12 months as a full-time instructor.
SR 520 – Sen. Adelman (D-Atlanta) offered this Resolution for a Constitutional Amendment to provide that all records and meetings of any governmental body, political subdivision of Georgia, authority or private corporation performing a public purpose to be required to be open to the public. This amendment would be inserted at Article III, Section VI of Paragraph VIII.
SR 522 – Sen. Jackson (R-Martinez) offered this Resolution creating the Senate Comprehensive Development Impact Fee Study Committee to be comprised of five Senate Members. It would look at Georgia law on the process of calculation, adoption, implementation, and expenditure of development impact fees affecting business in Georgia and residents.
SR 563 – Sen. Thompson (D-Powder Springs) proposed creation of the Senate Study Committee on Drug Courts and Addictive Drugs. Drug courts are a way in which to divert nonviolent substance abuse offenders from jail, providing them opportunities to obtain treatment. This Study Committee would be made up of five Senate Members and conduct its work before December 31, 2009, when it would be abolished.
SR 566 – Sens. Balfour (R-Snellville) and Johnson (R-Savannah) authored this Resolution urging the United States Congress to adopt the "Fair Tax Act" which would abolish all federal, personal, and corporate income taxes and gift, estate, capital gains, alternative minimum, Social Security, Medicare, and self-employment taxes. In their place, a federal retail sales tax would be put into place administered primarily by existing state sales tax authorities.
SR 570 – Sen. Orrock (D-Atlanta) proposed this Resolution expressing support for comprehensive immigration reform. It further requests that the Congress reject legislative attempts to enact "unfair and ineffective immigration policies."
SR 579 – Sen. Tolleson (R-Perry) offered this Resolution to create the Senate Biomass/Bioenergy Study Committee looking at bioenergy from forest and agricultural sources as a major economic development opportunity in the State with its 24 million acres of forest land. This Study by five Senate Members would be done by December 1, 2009.
HB 719 – Rep. Porter (D-Dublin) proposed amendments to Part 1 of Article 4 of Chapter 12 of Title 45, relating to management of budgetary and financial affairs by the office of Planning and Budget. This amendment would require tax expenditure reviews to be included in the budget report. Such report shall detail for each tax expenditure item that amount of tax revenue foregone for at least a three-year period. The report shall also contain in a statement of the intended objective of the tax expenditure, an analysis of whether the tax expenditure is achieving that objective, and the effect of the expenditure device on the distribution of the tax burden and administration of the tax system.
HB 729 – Rep. Sheldon (R-Dacula) offered this revision to O.C.G.A. § 15-11-66 to provide for a protective order for victims of certain acts of delinquency. It incorporates the definition of "designated felony act" as found in O.C.G.A. § 15-11-63 and states that when issuing a final disposition in a delinquency matter, then the juvenile court would issue a protective order requiring: "A) that the child have no contact in person or by electronic means with the victim of the delinquent act; and B) that if the child's disposition will result in the child's placement in a secure or nonsecure facility under the authority of the Department of Juvenile Justice, the department shall provide notice to the victim at his or her last known address by certified mail not less than five days prior to such child's release from the facility." It also amends O.C.G.A. § 49-4A-8 and would require that this "notice" be sent via certified mail to the victim's last known address at least five days prior the child's release.
HR 608 – Rep. Gardner (D-Atlanta) has proposed commending the American Red Cross and recognizing the month of March 2009 as "American Red Cross Month" at the State Capitol.
HR 618 – Rep. Collins (D-Conyers) offered this Resolution to recognize the month of March 2009 as "Kidney Disease Prevention Month" at the State Capitol.
Committee News
Senate Judiciary Committee
In a hasty meeting of the Committee chaired by Sen. Preston Smith (R-Rome), Sen. Balfour presented his SB 246 which addresses confidentiality provisions relating to juvenile records. Sen. Balfour explained a situation which took place in Gwinnett County where a juvenile girl was essentially stalked by a juvenile male with the male threatening bodily harm to the female once he was released from a juvenile facility for previously making threats to the female. Parents want to be informed of the intended release when there is a potential of their child or family being harmed. In his Bill, Sen. Balfour included that such contact/notice be required to be made by the Department of Juvenile Justice which is releasing the child who has committed a violent delinquent act to the victim. The Department of Juvenile Justice has not been entirely pleased with the Bill, noting that there is a statute in place which is the "Victim's Bill of Rights" that would address these concerns and this legislation is duplicative of the current law. However, the Department concedes that perhaps "tweaking" current law to address these delinquent juvenile acts might be a better way to accomplish the author's intent. This Bill now moves to the Senate Rules Committee.
House Judiciary Committee
Rep. Willard (R-Sandy Springs) hosted a House Judiciary Civil Committee meeting on adjournment today and passed out HB 667, amending provisions of the Nonprofit Hospital Acquisition Act. This statute requires the Attorney General to review such acquisitions and permitted a $50,000 fee for consultants to the Attorney General. The Bill allows the acquisition parties to pay the fees directly. Initially, language included a $75,000 cap on these fees but the cap was removed by the Committee.
The Committee next considered and unanimously approved HB 399, the Psychiatric Advance Directive Bill, which allows a citizen suffering from mental illness to express his or her preferences for treatment and medications and appoint an agent for that care when deemed incapable of making his or her own decisions. The Georgia Hospital Association, Medical Association of Georgia, and GPPA endorsed Rep. Gardner's (D-Atlanta) Bill. The legislation includes full provider and health care agent immunities.
House Committee on Education
Rep. Coleman's (R-Duluth) Committee reported out a Substitute on HB 281 proposing enactment of the "Georgia Virtual School Opportunity and Enrichment Act." This idea permits a local school system to permit virtual students in grades 6 through 12 to participate in extracurricular activities once they register with the principal of the school in which he or she would be enrolled based on his or her residence. It also establishes the academic requirements for participation, requiring a satisfactory score as defined by the State Board on one or more curriculum-based tests.
HB 208 also reported out as a Substitute. It amends O.C.G.A. § 20-2-151.3 of the "Quality Basic Education Act" to provide for the inclusion of bilingual endorsements on high school transcripts of graduating seniors who receive a passing grade on approved tests to demonstrate those bilingual skills. Local Boards of Education are then required to indicate the student received such endorsement.
House Committee on Science and Technology
HB 716 reported out with a Substitute. It adds a new Article 4 in Chapter 2 of Title 8, requiring the landlord to provide written notice to the local legal organ where the property is located and the homeowner's association of its intent to apply for participation in Section 8 Housing Choice Voucher Program. This notice must be given prior to qualifying for the program.
House Ways and Means
The House Ways and Means Committee passed out HB 439, HB 480 and HB 481.
HB 439, offered by Rep. O'Neal (R-Warner Robbins), provides for the comprehensive revision of income tax credits for business enterprises in less developed areas, employers providing approved retraining, business enterprises having qualified research expenses, based year port traffic, and taxpayers establishing or relocating headquarters into this state.
HB 480 would create a one time fee on the purchase of new and used cars, up to $1,500; however, no property tax would ever be levied on the car again, thus eliminating what is known as the "birthday tax".
Rep. Graves (R-Ranger) offered HB 481, which would enact the "Jobs, Opportunity, and Business Success Act of 2009". For calendar quarters beginning on or after July 1, 2009, there shall be a credit to be known as the Georgia Works Tax Credit. The amount of the Credit shall be not less than $25 and no more than $25 per individual employee per calendar quarter. The credit may be claimed by an employer for up to four calendar quarters with respect to an individual hired by that employer for services to be performed in the State under the following conditions:
(1) Such individual:
(A) Has filed a claim for unemployment compensation in this state and is currently receiving weekly unemployment compensation benefits on that claim under the provisions of Article 7 of this chapter and such benefits are chargeable to the experience rating account of an employer under Code Section 34-8-157;
(B) Has been profiled by the department as likely to exhaust benefits;
(C) Has no return to work date or promise of future employment; and
(D) Has at least eight weeks of benefit eligibility remaining on his or her current claim at the time the employer hires the individual;
(2) The credit for each such hired individual per calendar quarter may be claimed on the reports required to be filed under Code Section 34-8-165 as a reduction from amounts otherwise due with respect to each of the four calendar quarters immediately following the hire date of the individual; provided, however, that the credit may not be claimed for any hired individual with respect to more than one hiring by the employer claiming the credit or for more than four calendar quarters with respect to that one hiring;
(3) For each calendar quarter for which the credit is claimed, such individual shall be continuously employed by the employer claiming the credit, and such individual's employment with that employer shall consist of at least 30 hours per week during each week of that calendar quarter;
(4) The credit shall be timely claimed for the calendar quarter to which the credit is applicable, and in no event later than the last day of the reporting month following the end of the calendar quarter to which the credit is applicable. The credit shall not be refundable. The credit cannot reduce tax liability below zero; provided, however, that the credit, if properly and timely claimed, may be carried forward and applied against contributions due in any subsequent calendar quarter in the same calendar year as claimed. Any unused credit remaining at the end of a calendar year may not be carried forward to another calendar year and shall be deemed to have expired; and
(5) No credit shall be claimed or taken by any employer who fails to timely file any report or to timely pay all amounts otherwise due for all calendar quarters during the calendar year for which the credit is claimed. In the event an employer has claimed a credit under this Code section and fails to timely file any report or to timely pay all amounts otherwise due during the year the credit is claimed, the amount of any credits claimed with respect to the calendar year shall be cancelled and become delinquent as of the date originally due under Code Section 34-8-165 and subject to all the provisions of this article as if no credit had ever been available or claimed."
Please contact Stanley S. Jones, Jr., Helen Sloat or April Morgan at 404.322.6000 for further information on legislative happenings. Gold Dome Reports will be available daily during the Session at www.nelsonmullins.com.
The articles published in this newsletter are intended only to provide general information on the subjects covered. The contents should not be construed as legal advice or a legal opinion. Readers should consult with legal counsel to obtain specific legal advice based on particular situations.