02 14 18 reply in support of mtd by SavePHXChinaTown

1 2 3 4 5 Dennis I. Wilenchik, #005350 6 John D. Wilenchik, #29353 David A. Timchak, #32095 7 admin@wb-law.com Attorneys for Defendant 8 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 9 IN AND FOR THE COUNTY OF MARICOPA 10 TRUE NORTH COMPANIES, LLC, an Case No. CV2017-014668 11 Arizona limited liability company, 12

Plaintiff;

JIA-YEE individual,

“CHARLIE” Defendant.

LAI,

DEFENDANT’S REPLY IN SUPPORT OF SPECIAL MOTION TO DISMISS STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP) PURSUANT TO A.R.S. § 12-752 (Assigned to the Hon. Kerstin LeMaire)

17 18

Defendant hereby files his Reply in support of “Special Motion to Dismiss Strategic

19 Lawsuit Against Public Participation (SLAPP) Pursuant to A.R.S. § 12-752.” 20

Defendant responds to each of Plaintiff’s arguments in the Response to the Motion as

Counterpoint to Plaintiff’s Response

22 follows, point by point: 23

“1. The Defamatory Statements are Not Constitutionally Protected Free

Speech”

25 26

Here, Plaintiff makes a circular argument that Defendant’s statements are not

1 constitutionally protected because they are defamatory, and that they are defamatory because the 2 Plaintiff’s Complaint says that they are defamatory, so they must fall outside the scope of the 3 anti-SLAPP statute. Clearly, the anti-SLAPP statute was designed to test the factual and legal 4 validity of defamation claims, and it requires more than just conclusory allegations in the 5 Complaint. Moreover, according to its legislative history, the anti-SLAPP statute was 6 specifically designed to deal with exactly the situation that we have here, which is when a 7 developer “files a defamation lawsuit” because it “decides it does not want people to raise 8 objections to the project”: 9 10 11 12 13

14 15 16 17 18 19 20 21 22 23 24 25 26

(Minutes of the February 16, 2006 House Committee on Judiciary, attached as Exhibit “A” hereto, emphasis added.) A witness before the same House Judiciary Committee (the only witness who spoke) also gave her personal example of being threatened with a suit over comments that she made at a city council meeting against an “unscrupulous” developer. Id. (See Comments of Kris Godinez, Exhibit “A” in highlight, ending with: “SLAPP lawsuits…[are] intended to do nothing more than harass, bankrupt and shut up any opposition to any kind of development…[T]hese lawsuits must end.”) “2. The Public Statements Needed to Relate to the Motion Being Considered by the Phoenix City Council.” Plaintiff argues that because, in Plaintiff’s view, Defendant’s comments were not narrowly focused on a Motion made by Kate Gallego during the hearing, then Defendant’s 2

1 comments were not “[m]ade in connection with an issue that is under consideration or 2 review…” The item on the Phoenix City Council Agenda was the “Consideration of Citizen 3 Petition Related to the Chinese Cultural Center,” which requested the Council to “ensure[] the 4 long-term preservation of the Chinese Cultural Center”; and so clearly those were the issues that 5 were under “consideration” by the Council. The mere fact that Ms. Gallego made a motion in 6 connection with the item, and that Mayor Stanton suggested to Mr. Lai at the end of his speech 7 to make comments on that motion, does not take Mr. Lai’s speech out of the protection of the 8 anti-SLAPP statute, much less the First Amendment.1 Mr. Lai’s comments were clearly made in 9 connection with this item on the agenda, as he was responding to the developer’s proposal to 10 relocate the Center (which the developer said showed that it was acting in “good faith,” and with 11 which Mr. Lai disagreed). All of this was “in connection with” the petition to “ensure[] the long12 term preservation of the Chinese Cultural Center.” 13

Plaintiff’s reading of the statute as requiring that speech must be made in connection with

14 some arbitrary focus or particular issue in the hearing is also against public policy. It would 15 require the Court to become a content-based arbiter of exactly what a person should say during a 16 City Council meeting and when, which has a chilling effect on free speech. Further, Plaintiff’s 17 reading is contrary to the plain meaning of the statute. Courts have consistently held that the 18 phrase “in connection with” should be broadly construed. Key Air, Inc. v. Comm'r of Revenue 19 Servs., 294 Conn. 225, 983 A.2d 1, 8 n. 11 (Conn.2009)(listing cases). The Arizona Court of 20 Appeals has interpreted the phrase “in connection with” to represent any “relationship or 21 22 1

Further, what Mayor Stanton actually said before public comments was that “For today, I think the best way to operate is to see if the Councilwoman for the district [Gallego] has a motion, see if there’s a second, hear from the public, and then turn it over to the Council for questions or comments.” And after Ms. Gallego’s motion: “Now I’ll turn it over to the community…” https://www.youtube.com/watch?v=mA_HefYqG7U (publicly available video, beginning at around 35:30 minutes in).

23 24

1 association in thought.” State v. Bews, 177 Ariz. 334, 336, 868 P.2d 347, 349 2 (App.1993)(quoting Webster’s Third New International Dictionary 481 (1971)). Similarly, the 3 Third Circuit Court of Appeals has held that the phrase “in connection with” covers “a wide 4 range of relationships.” United States v. Loney, 219 F.3d 281, 284 (3d Cir.2000)(quoting various 5 uses of “in connection with,” a phrase that is “notable” for its “pliability” and “should be 6 interpreted broadly” and “construed expansively”). The phrase does not require, or even 7 connote, that the speech must be narrowly tailored to some particular focus or aspect of the issue 8 under consideration. 9

Finally, the First Amendment and common law also grant protections to persons who

10 speak at a city council meeting. The nature of those protections supports Defendant’s argument 11 for how the anti-SLAPP statute should be applied, as well as that the Defendant’s speech was 12 absolutely privileged. A person who attends a city council meeting has a First Amendment right 13 to speak, even if the public comment period has been closed entirely, and the person’s 14 comments were uninvited. See e.g. Norse v. City of Santa Cruz, 629 F.3d 966 (9th Cir. 15 2010)(finding that even though city council attendee’s provocative gesture was made after the 16 “public comment” period had closed, First Amendment still protected the person’s right to make 17 the gesture; and remarking that “we have been unable to find a single First Amendment case 18 where a person has the right to be in a place but has no First Amendment rights once there.”) 19 And under the common law, a witness at a city council meeting has an absolute privilege to 20 make even defamatory statements, so long as the defamatory matter “has some relation to the 21 proceeding.” See Restatement (Second) of Torts § 590A (1977)(“A witness is absolutely 22 privileged to publish defamatory matter as part of a legislative proceeding2 in which he is 23 24 25 26

Per comment “a” to this Section 590A, and comment “c” to Restatement (Second) of Torts § 590 (1977), this rule is applicable “to members of subordinate legislative bodies to which the State has delegated legislative power, such as a city council or a county board.”

1 testifying or in communications preliminary to the proceeding, if the matter has some relation to 2 the proceeding.”) The witness need not be under oath or under subpoena, so long as he or she 3 has been “permitted” to speak. Id. (providing that the same rule applies for judicial witnesses, 4 and referring to § 588); see also Restatement (Second) of Torts § 588 (1977)(“The rule stated in 5 this Section protects a witness while testifying. It is not necessary that he give his testimony 6 under oath; it is enough that he is permitted to testify….[T]he fact that the testimony is offered 7 voluntarily and not in response to a question [does not] prevent it from being privileged if it has 8 some reference to the subject of the litigation.”) While the precise nature of the privilege that is 9 granted to a witness before a city council meeting appears to be a matter of first impression in 10 Arizona, our State is likely to follow the Restatement. See e.g. Tierra Ranchos Homeowners 11 Ass'n v. Kitchukov, 216 Ariz. 195, 201, 165 P.3d 173, 179 (Ct. App. 2007)(“Arizona courts look 12 to the Restatement for guidance in the absence of controlling authority”). The Arizona Supreme 13 Court has already found that an absolute privilege applies to statements made by city council 14 members at a city council meeting, and in doing so it cited the corresponding section of the 15 Restatement. See Sanchez v. Coxon, 175 Ariz. 93, 854 P.2d 126 (1993). 16 17 18

“C. [sic, 3] The Falsity of Defendant’s Statements” “1. True North was the Landlord.” Plaintiff may be correct that “True North Companies” and “668 North” are not “sham”

19 LLC’s. The “sham” is using this issue as a flimsy pretext to file a defamation lawsuit. In its 20 Response, Plaintiff again fails to identify any compensable injury from this claim. Plaintiff does 21 not meet its burden of showing that Defendant’s statements “did not contain any reasonable 22 factual support or any arguable basis in law and that the moving party's acts caused actual 23 compensable injury to the responding party.” 24 25 26

“2. Only 31 Days to move out.” This hardly merits a response. Plaintiff wants to quibble about the additional time that it 5

1 claims it “allowed” Mr. Lai to be in the space before locking him out. Plaintiff does not meet its 2 burden of showing that Defendant’s statements “did not contain any reasonable factual support 3 or any arguable basis in law and that the moving party's acts caused actual compensable injury 4 to the responding party.” 5 6

“3. Comments Implying Wrongful Eviction.” Plaintiff does not dispute that the Defendant’s business was locked out. However, counsel

7 avoids mentioning that fact and bizarrely claims that the Defendant was not “evicted,” 8 demonstrating a lack of candor to the Court. (From Black’s Law: to “evict” is “[t]o expel (a 9 person, esp. a tenant), from real property, usu. by legal process. Also termed put out.”) Even 10 outside of the context of the anti-SLAPP statute, the Court could find as a matter of law that 11 referring to a commercial lockout as being “kicked out” is not actionable (being only an opinion, 12 under the First Amendment or the common law). For purposes of the anti-SLAPP statute, 13 Plaintiff does not meet its burden of showing that the Defendant’s statements “did not contain 14 any reasonable factual support or any arguable basis in law and that the moving party’s acts 15 caused actual compensable injury to the responding party.” 16

“4. True North Told the Media that Super L Market’s Business was Bad

and That’s Why Super L Market has to Close its Business.”

Plaintiff does not seem to want to substantively address this claim, even though it is

19 Plaintiff’s burden to show by “opposing affidavits” the “facts on which the liability…is based” 20 and that Defendant had no reasonable factual support for his statement. A.R.S. § 12-752(B). 21 Further, Plaintiff’s own press releases speak for themselves; and Defendant has shown that he 22 had a reasonable basis on which to make his statement. Plaintiff again fails to meet its burden as 23 to this claim. 24 25 . . . 26

1 2

“5. Stolen Forklift Statements” Plaintiff and its counsel now falsely claim that this allegation is a “typo,” and that it

3 should have read “statements that [imply that] True North stole.” Omitting two words like that is 4 not a typo—it is a deliberate choice to try to avoid a Motion to Dismiss by falsifying an 5 allegation. Plaintiff and its counsel claim that they will “seek leave to amend to correct the 6 typo.” This statement is also insincere: Plaintiff could have amended without leave prior to or on 7 the date of its Response (see Rule 15(a)(1)), but it clearly chose not to do so. Nor did the 8 Defendant’s statements, such as they were, necessarily “imply” that Plaintiff stole the forklift, 9 casting even more doubt on this attempt by Plaintiff and its counsel to explain away the Rule 11 10 problem. Defendant’s actual statements were substantive, factual, and detailed. He stated that 11 Plaintiff did not allow access for him to retrieve the forklift on the day after the lockout, because 12 Plaintiff claimed that he had abandoned it, which was untrue. Finally, just as the United States 13 Supreme Court has found that the words “treason” and “blackmail” are protected by the First 14 Amendment when used as rhetoric, even if the Defendant had accused the Plaintiff of “stealing” 15 his forklift or implied as much, then it would be protected under the First Amendment as the 16 same kind of “vigorous epithet.” Defendant would also have a reasonable basis on which to 17 make the comment, and Plaintiff fails to identify any compensable damages; so Plaintiff again 18 fails to meet its burden on this claim. 19 20 21

II.

Supplemental First Amendment Caselaw (in connection with the Oral Argument)

During the Oral Argument on Defendant’s Motion, Plaintiff’s counsel seemed to be

22 arguing that the First Amendment does not apply to defamation actions. The United States 23 Supreme Court has clearly found otherwise, for over sixty years. See e.g. (and not exhaustively): 24 New York Times v. Sullivan, 376 U.S. 254 (1964)(grafting First Amendment protections onto 25 defamation actions brought by public figures); Gertz v. Robert Welch, Inc., 418 U.S. 323 26

1 (1974)(same, as to private figures); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 2 P.2d 562 (1986)(recognizing these cases and that defamation has “obtained constitutional 3 protection”). First Amendment protections apply not only to defamation, but also more broadly 4 to any civil tort, including intentional infliction of emotional distress. (See e.g., as referenced in 5 the Oral Argument, the Westboro Baptist Church case involving funeral protests, Snyder v. 6 Phelps, 562 U.S. 443 (2011), or the “Larry Flynt” case, Hustler Magazine, Inc. v. Falwell, 485 7 U.S. 46 (1988)). 8 9

Attorney’s Fees, Damages and “Costs” Defendant again requests his attorneys’ fees and “costs” (within the meaning of

10 A.R.S. § 12-752(D)). Far from being premature, this request would arguably be waived if 11 Defendant did not make it in this Motion to Dismiss, per Balestrieri v. Balestrieri, 232 Ariz. 25, 12 300 P.3d 560 (Ct. App. 2013), as modified (July 16, 2013), and/or Rule 57(g)(1). 13

A.R.S. § 12-752(D) provides that Defendant may recover “all costs that are reasonably

14 incurred in connection with a motion to dismiss pursuant to this section….” Defendant also 15 requests that double the amount of his costs be assessed as “double damages” under A.R.S. § 16 12-349, in an amount not to exceed $5,000. The Court may also impose sanctions sua sponte 17 under Rule 11. 18 19

CONCLUSION For the foregoing reasons, as well as those stated in the original Motion and in open

20 court, Defendant requests that the Complaint be dismissed with prejudice and that Plaintiff take 21 nothing thereby; that Defendant be granted his attorneys’ fees and costs pursuant to 22 A.R.S. § 12 -752(D), A.R.S. § 12-341, A.R.S. § 12-349 and/or Rule 11; double damages in an 23 amount not to exceed $5,000 under A.R.S. § 12-349, or any other sanction that the Court may 24 feel is appropriate under Rule 11. Defendant asks for leave to submit an affidavit of attorneys’ 25 fees and statement(s) of costs. 26

RESPECTFULLY SUBMITTED this 14th day of February, 2018.

WILENCHIK & BARTNESS, P.C.

/s/ John D. Wilenchik Dennis I. Wilenchik, Esq. John “Jack” D. Wilenchik, Esq. David A. Timchak, Esq. The Wilenchik & Bartness Building 2810 North Third Street Phoenix, Arizona 85004 admin@wb-law.com Attorneys for Defendant

4 5 6 7 8 ELECTRONICALLY filed 9 2018, via AZTurboCourt.com

February

14,

10 COPY electronically transmitted by the Clerk of the Court via AZTurboCourt.com 11 to the Honorable Kerstin LeMaire 12 COPY e-served via AZTurboCourt.com February 14, 2018, to: 13 Christopher D. Payne, Esq. 14 PAYNE LAW OFFICE 2111 E Highland Ave, Suite 145 15 Phoenix, Arizona 85016 16 Chris@cpaynelaw.com Counsel for True North Companies, LLC 17 By /s/ Christine M. Ferreira 18 19 20 21 22 23 24 25 26

EXHIBIT A

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

AZ H.R. Comm. Min., 2/16/2006

Arizona Committee Minutes, February 16, 2006 February 16, 2006 Arizona House of Representatives Committee on Judiciary Forty-seventh Legislature, Second Regular Session, 2006 Minutes of Meeting Thursday, February 16, 2006 House Hearing Room 4 -- 8:30 a.m. Chairman Farnsworth called the meeting to order at 8:35 a.m. and attendance was noted by the secretary. Members Present Mr. Barnes Mr. Downing Mr. Gallardo

Mr. Miranda B Mr. Paton Mr. Quelland

Mr. Yarbrough Mrs. Barto, Vice-Chairman Mr. Farnsworth, Chairman Members Absent

None Committee Action H.B. 2351 - Held by Chairman H.B. 2441 - Held by Chairman H.B. 2440 - DPA S/E (8-1-0-0) H.B. 2118 - DPA (8-0-0-1) H.B. 2824 - DPA (9-0-0-0) H.B. 2342 - DP (9-0-0-0)

H.B. 2819 - DPA (6-3-0-0) H.B. 2142 - DP (6-2-0-1) H.B. 2076 - DP (6-3-0-0) H.B. 2696 - DP (6-3-0-0) H.B. 2829 - DP (6-0-0-3) H.B. 2490 - DPA S/E (9-0-0-0) Speakers Present

Katy Proctor, Majority Research Analyst Representative Andy Biggs Kris Godinez, representing herself Jen Forst, Majority Intern

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

Michele Diamond, Director of Government Affairs, Arizona State Board for Charter Schools Representative Chuck Gray Cliff Vanell, Director, Office of Administrative Hearings (OAH) Brian Lincks, Arizona Association of Community Managers Roland Kelly, Coalition of HomeOwners for Rights and Education (CHORE) George Staropoli, representing self Representative John McComish, sponsor Ralene Whitmer, Assistant Majority Research Analyst David Smith, Manager, Maricopa County Board of Supervisors Jerry Landau, Legislative Liaison, Administrative Office of the Courts (AOC), Arizona Supreme Court Bob Brutinel, Presiding Judge, Yavapai County Superior Court Representative Russell Pearce, sponsor Representative Bob Stump, sponsor Representative Chuck Gray, sponsor Gary Christensen, Arizona State Rifle and Pistol Association Tom Van Dorn, Arizona Association of Chiefs of Police and Phoenix Police Dave Kopp, President, Arizona Citizens Defense League, Inc. John Wentling, Vice President, Arizona Citizens Defense League Representative Steve Tully, sponsor Peter Gentela, General Counsel, The Center for Arizona Policy Representative Laura Knaperek, sponsor Darlene Justus, North Tempe Neighborhood Association Names of persons who did not speak (pages 4, 5, 6, 8, 13, 14, 16, 18, 19) CONSIDERATION OF BILLS: H.B. 2351, identity theft omnibus - HELD BY CHAIRMAN Chairman Farnsworth announced that H.B. 2351 will be held. H.B. 2441, cleanup; victims' rights S/E: homeowners' associations; condominiums; hearings - HELD BY CHAIRMAN Chairman Farnsworth announced that H.B. 2441 will be held. H.B. 2440, clean up of victims' rights ÂŠ 2018 Thomson Reuters. No claim to original U.S. Government Works.

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

S/E: protections; public participation in government - DO PASS AMENDED S/E Vice-Chairman Barto moved that H.B. 2440 do pass. Vice-Chairman Barto moved that the Farnsworth four-page strike-everything amendment dated 2/14/06 to H.B. 2440 be adopted (Attachment 1). Vice-Chairman Barto moved that the Farnsworth two-line amendment dated 2/15/06 to the Farnsworth four-page strikeeverything amendment dated 2/14/06 be adopted (Attachment 2). Katy Proctor, Majority Research Analyst, reviewed the provisions of the Farnsworth four-page strike-everything amendment dated 2/14/06 (Attachment 3): • States that in any legal action involving a party's exercise of the right to petition, the defending party may file a motion to dismiss the action. The court must give calendar preference and conduct an expedited hearing. • Provides that unless it is shown that the exercise of the right to petition did not contain reasonable factual support and the exercise caused actual compensable injury to the responding party, the court shall grant the motion to dismiss. • Requires the court, at the request of the responding party, to make findings whether the lawsuit was brought to deter or prevent the moving party from exercising constitutional rights and was therefore brought for an improper purpose. • If the court finds the lawsuit was brought for that purpose, the responding party is encouraged to pursue additional sanctions as provided by law. • Allows the motion to dismiss to be filed within 90 days after the service of the complaint, or, any later time on terms that the court deems proper. • Provides that if the court grants the motion to dismiss, the court shall award the moving party costs and reasonable attorney fees. If the court finds that the motion to dismiss is frivolous or intended solely to delay, the court shall award costs and reasonable attorney fees to the prevailing party on the motion. • Provides that this does not: -- Affect, limit or preclude the right of the moving party to any remedy otherwise authorized by law -- Apply to an enforcement action brought in the name of this state or a political subdivision of this state -- Create any privileges or immunities or otherwise affect, limit or preclude any privileges or immunities authorized by law -- Limit or preclude a legislative or executive body or a public agency from enforcing the rules of procedure and rules of order of the body or agency • Contains a legislative findings and declarations statement as follows: -- It is the policy of this state that the rights of citizens and organizations to be involved and participate freely in the process of government shall be encouraged and safeguarded with great diligence -- The Legislature finds that civil actions have been filed against citizens and organizations of this state as the result of the valid exercise of their constitutional rights to petition, speech and association. The threat and burdensome litigation costs significantly chill and diminish citizen participation in government, voluntary public service and the exercise of these important constitutional rights. -- It is in the public interest and it is the purpose of this article to strike a balance between the rights of persons to file lawsuits for injury and the constitutional rights of persons to petition, speech and association, to protect and encourage public participation in government. • Defines exercise of the right to petition, governmental proceeding and legal action. Ms. Proctor explained that the Farnsworth two-line amendment dated 2/15/06 to the Farnsworth four-page strikeeverything amendment makes a technical correction (Attachment 2). Question was called for on Vice-Chairman Barto's motion that the Farnsworth two-line amendment dated 2/15/06 to the Farnsworth four-page strike-everything amendment dated 2/14/06 be adopted (Attachment 2). The motion carried. Vice-Chairman Barto moved that the Farnsworth four-page strike-everything amendment dated 2/14/06 as amended be adopted (Attachment 1). The motion carried. Vice-Chairman Barto moved that H.B. 2440 as amended do pass.

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

Representative Andy Biggs, stated that H.B. 2440 refers to the anti-SLAPP lawsuit (Strategic Lawsuit Against Public Participation). He explained that when a developer, working with a governmental entity on a project, decides it does not want people to raise objections to the project, it will file a defamation lawsuit against the individual or individuals expressing opposition. Normally these are frivolous lawsuits and are generally dismissed; however, it causes average citizens to spend thousands of dollars to defend themselves. He said this causes a chilling effect on public participation. This bill is tied into the constitutional right of free speech. Page 2, line 13 states that if the court finds the lawsuit was brought to deter or prevent the exercise of constitutional rights or was otherwise brought for an improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation, the responding party is encouraged to pursue additional sanctions as provided by law. He advised similar legislation has been passed in more than 20 states. In response to Mr. Miranda, Representative Biggs gave an example of a huge development in Mesa. A group of people organized a referendum to stop the development. The organizer of that referendum was sued and thousands of dollars were spent in an effort to try to bankrupt the people who organized the referendum. Mr. Miranda asked whether this type of litigation arises from population growth. Representative Biggs replied in the negative. He said it does prevent lawsuits to harass people who wish to participate in the process. Kris Godinez, representing herself, testified in support of H.B. 2440. She stated that landowners of this State desperately need protection from unscrupulous developers. She advised that she attended a Gilbert City Council meeting in January of this year opposing a proposed water park that would adversely affect her neighborhood. The Mayor made the statement that if opponents continue to oppose the water park, they would be sued. Her husband sent an e-mail to the Mayor asking why he would sue his constituents. The Mayor responded that it would not be the City who would sue, but the developer. All landowners are susceptible to SLAPP lawsuits which are a series of frivolous lawsuits intended to do nothing more than harass, bankrupt and shut up any opposition to any kind of development. She maintained that these lawsuits must end and landowners must be protected. Persons in support of H.B. 2440 who did not speak: Pat Haruff, Coalition of HomeOwners for Rights and Education (CHORE) Anne Stewart, Spokesperson for The Sun City Formula Registry Roland Kelly, representing self Jerry Neill, representing self and Neighborhood Activists Inter-linked Empowerment Movement (NAILEM) Sandy Bahr, Conservation Director, Sierra Club - Grand Canyon Chapter Mary Afdem, representing self N. Kasper, representing self Question was called for on Vice-Chairman Barto's motion that H.B. 2440 as amended do pass. The motion carried by a roll call vote of 8-1-0-0 (Attachment 4). H.B. 2118, charter schools; fingerprinting; penalties - DO PASS AMENDED Vice-Chairman Barto moved that H.B. 2118 do pass. Vice-Chairman Barto moved that the Farnsworth 10-page amendment dated 2/15/06 be adopted (Attachment 5). Jan Forst, Majority Intern, explained the provisions of H.B. 2118 (Attachment 6): • Allows the sponsor of a charter school to impose a $1,000 civil penalty per occurrence if a charter school fails to comply within 48 hours of notification of noncompliance with specified statutory fingerprinting requirements. • Requires a civil penalty to be imposed against a charter school that has previously been determined to be out of compliance with specified statutory fingerprinting requirements. • Requires all civil penalties collected for fingerprinting noncompliance to be deposited in the state General Fund.

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

Chairman Farnsworth explained that current law applies to charter schools. This bill expands the law to include district schools if they do not have current fingerprint cards, and upon notification, mandates that they have 48 hours to become complaint. A fingerprint card cannot be obtained within 48 hours. The person can be taken from the classroom until the card is obtained. Mr. Downing asked whether the 48 hours can be expanded. Chairman Farnsworth again stated that the person can be removed from the classroom. This legislation addresses those who are non-compliant and who refuse to take action to obtain a fingerprint card. He noted it already is law that a current fingerprint card is required to work with children unless the person is a volunteer. He advised that it can take up to six weeks to acquire a fingerprint card. Mr. Quelland expressed concern about teachers who have contracts with districts. He queried how this would work in those situations. Chairman Farnsworth thinks the teacher would know what State law is. Michele Diamond, Director of Government Affairs, Arizona State Board for Charter Schools, spoke in support of H.B. 2118. She advised that the Charter Board currently does not have a tool to deal with repeat fingerprinting violations. Sponsors of charter schools have two tools available to them to deal with violations: withhold 10 percent of State aid until the school comes into compliance, and issue a notice of intent to revoke. Persons in support of H.B. 2118 who did not speak: Gary Bae, Director of Public Affairs, The Leona Group Arizona Tom Dorn, representing Arizona Charter Schools Association Question was called for on Vice-Chairman Barto's motion that the Farnsworth ten-page amendment dated 2/15/06 be adopted (Attachment 5). The motion carried. Vice-Chairman Barto moved that H.B. 2118 as amended do pass. The motion carried by a roll call vote of 8-0-0-1 (Attachment 7). H.B. 2824, homeowners' associations; condominiums; hearings - DO PASS AMENDED Vice-Chairman Barto moved that H.B. 2824 do pass. Vice-Chairman Barto moved that the Farnsworth 23-line amendment dated 2/15/06 be adopted (Attachment 8). Katy Proctor, Majority Research Analyst, reviewed the provisions of H.B. 2824 (Attachment 9): • Provides that for a dispute between an owner and either a condominium association or planned community association, either may petition the Department of Building and Fire Safety (DBFS) for a hearing concerning violations of the association documents or violations of statutes regulating associations. • Requires the petitioner to file a petition with DBFS and pay a filing fee of $500. • Deposits the filing fee into the Condominium and Planned Community Hearing Office Fund (Fund). • Provides that an order issued by an administrative law judge (ALJ) in an action regarding a condominium or planned community is final and not subject to a request for a rehearing. • Establishes the Condominium and Planned Community Hearing Office Fund (Fund) within the DBFS. Allows the Director of DBFS to administer the fund. • Makes Fund monies continuously appropriated and requires the State Treasurer to invest/divest monies on notice from the Director. Credits monies earned from investment to the Fund. • Requires monies in the Fund to be transferred from the Fund to the general fund quarterly. • Allows DBFS to retain five percent of the monies to offset the costs of administering and providing a hearing officer function for these disputes, including reimbursing the OAH for actual costs incurred. • Contains a blank appropriation from the general fund in FY 2007 to the Fund. Exempts the appropriation from lapsing. • Requires the Joint Legislative Budget Committee (JLBC) to review and make recommendations to the Legislature regarding the filing fees charged to parties for filing for an administrative hearing under this section. JLBC must

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

recommend a level of filing fee appropriate to ensure the hearing officer program is fiscally sound and self-supporting. The report must be made by December 1, 2007. Ms. Proctor explained the Farnsworth 23-line amendment dated 2/15/06 clarifies that the decision by the Administrative Law Judge is also not subject to being accepted, rejected or modified by the Director, and rewrites the Fund language (Attachment 8). Chairman Farnsworth advised that homeowners' associations continue to be an issue. The only option available to a homeowner is to go to court which ultimately may cost more money than paying the assessment. HOAs have the power of automatic statutory lien authority and foreclosure authority. Because of that threat, homeowners generally decide to pay the assessments or fees even if they disagree with them. This legislation is a mechanism to allow HOAs and homeowners to have a reasonable resolution at a reasonable cost. The bill calls for a $500 filing fee to prevent frivolous lawsuits. If the homeowner is successful with his suit, the HOA has to reimburse the filing fee. Mr. Downing asked whether a justice of the peace (JP) can do this. Chairman Farnsworth replied this is a different mechanism than going to a justice court. Representative Chuck Gray, said there are still some mechanical issues involving JPs that are not workable, so he is here to support this bill. He believes it solves the problem of holding HOAs accountable. Mr. Downing asked Representative Gray if he is comfortable with the $500 threshold. He thinks it might affect some people of limited means. Representative Gray said he believes it is within the realm of acceptability. Chairman Farnsworth stated the $500 filing fee was set high enough to prevent a person from filing just to harass an HOA. Cliff Vanell, Director, Office of Administrative Hearings (OAH), spoke in support of H.B. 2824. He said this legislation is within the existing mission of OAH. It does have a funding source that would allow these cases to proceed without putting an undue burden on the Office. It is designed to limit the number of cases that go to OAH and guards against other frivolous situations. It clearly states what the Administrative Law Judge is to address and the remedies to be applied. He maintained it is an appropriate tool to use for this stated purpose. In reply to Mr. Downing, Mr. Vanell advised that the right of appeal would be to the Superior Court. Mr. Downing queried the number of cases anticipated. Mr. Vanell said he thinks with the $500 filing fee, the number would not be large. He referred to the OAH website and newsletter (Attachment 10) where information can be accessed to allow people to participate more. Mr. Barnes wondered if OAH plans to have indoctrination sessions with people who do not understand the process. Mr. Vanell advised that people can research past OAH decisions to allow them to see what the approach of the OAH has been in the past. He related that a copy of their brochure is sent to each party to assist them to interface with OAH so they can be well prepared to represent themselves. Brian Lincks, Arizona Association of Community Managers, testified in opposition to H.B. 2824. He stated that some of the language is ambiguous and he does not know how it would work. One of the provisions in the bill clearly limits management companies from representing their HOA Board of Directors in the Administrative Law hearings. There is also concern about higher costs which will not allow HOAs to handle matters on their own without legal counsel. He said the Association would like to work with the sponsor and others so the Association could support this legislation. Roland Kelly, Coalition of HomeOwners for Rights and Education (CHORE), expressed support for H.B. 2824. He stated it is very important to do as much as possible in an area where there is so little control and where so many homeowners are subjected to unnecessary fines. He said the fines could turn into large amounts of money for people who are interested in pursuing their cases in court. He related that CHORE gets hundreds of complaints each year. ÂŠ 2018 Thomson Reuters. No claim to original U.S. Government Works.

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Homeowners usually pay rather than becoming involved in a protracted lawsuit. They pay because they believe they are told they have no other recourse. Mr. Miranda agreed with Mr. Kelly. He believes the playing field needs to be even. George Staropoli, representing self, stated support for H.B. 2824. He said he thinks the OAH will be an excellent forum to address these issues. Homeowners are at a definite disadvantage because HOAs have the resources to hire attorneys while homeowners oftentimes do not. He said he thinks this bill will go a long way to help solve the problem. Persons in support of H.B. 2824 who did not speak: Pat Haruff, Coalition of HomeOwners for Rights and Education (CHORE) Anne Stewart, spokesperson for The Sun City Formula Registry Fran Noe, representing self John Lamer, representing self Donna Neill, representing self Jerry Neill, representing self Keith Wallace, representing self Mary Afdem, representing self N. Kasper, representing self Fred Fischer, representing self Persons in opposition to H.B. 2824 who did not speak: Kevin DeMenna, representing Community Associations Institute (CAI) Linda Lang, Executive Director, Arizona Association of Community Mangers Question was called for on Vice-Chairman Barto's motion that the Farnsworth 23-line amendment dated 2/15/06 be adopted (Attachment 8). The motion carried. Vice-Chairman Barto moved that H.B. 2824 as amended do pass. The motion carried by a roll call vote of 9-0-0-0 (Attachment 11). H.B. 2342, child support; self-employed parent - DO PASS Vice-Chairman Barto moved that H.B. 2342 do pass. Jen Forst, Majority Intern, summarized the provisions of H.B. 2342 (Attachment 12): â&#x20AC;˘ Strikes the provision that requires both parents to equally share the cost of the federally-authorized tax practitioner (FATP) if at least one of the parents is self-employed. â&#x20AC;˘ Requires the court to determine which parent shall pay for the cost of the FATP or determine each parent's share of the cost. Representative John McComish, sponsor, read notes from Judge Steven Sheldon who sits on the Family Court. Judge Sheldon said that H.B. 2342 is a very important tool to bring fairness to the unfortunate process of dividing property during a divorce. Current statute states that parents shall equally share the cost of the federally-authorized tax practitioner (FATP) if there is potential for real unfairness and delay in the process. Oftentimes, in cases of a selfemployed person, the other spouse does not have access to information, and the self-employed person usually controls all access to finances and income, so there are opportunities to hide income and assets. Complete and fair disclosure of financial information is needed. This legislation allows the judge to exercise judgment and to decide who pays for the expense of the audit. Mr. Barnes questioned how frequently this comes up. Representative McComish said he cannot answer that. He said that Judge Sheldon believes it is an issue in a significant number of cases. Question was called for on Vice-Chairman Barto's motion that H.B. 2342 do pass. The motion carried by a roll call vote of 9-0-0-0 (Attachment 13).

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Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

H.B. 2819, adult probation; county responsibility - DO PASS AMENDED Vice-Chairman Barto moved that H.B. 2819 do pass. Vice-Chairman Barto moved that the Farnsworth seven-line amendment dated 2/15/06 be adopted (Attachment 14). Ralene Whitmer, Assistant Majority Research Analyst, explained the provisions of H.B. 2819 (Attachment 15): • Permits a county through its Board of Supervisors to choose to not receive state aid for probation services (SAFPS). If a county chooses not to receive SAFPS, the following applies: - Adult probation ratios are suspended. - The county's contribution to the hospitalization and medical care of the indigent sick, to the nonfederal portion of providing long-term care and for the administrative costs of implementing portions of the Arizona Health Care Cost Containment System (AHCCCS) are reduced. - The Economic Estimates Commission must increase the county's base expenditure limit. • Increases the probation surcharge from $5 to $10. • Specifies that the superior, justice and municipal courts collect the probation fee. • Deposits the probation surcharges that are collected in counties that receive SAFPS in the Judicial Collection Enhancement Fund (JCEF). • Deposits the probation surcharges that are collected in counties that do not receive SAFPS in the adult probation services fund or the juvenile probation fund. • Allows the presiding judge of the superior court of a county with a population of less than 2 million persons to prepare a plan outlining and requesting the use of SAFPS. • Requires the Supreme Court to report to the Joint Legislative Budget Committee (JLBC) all amounts provided to any county for SAFPS. • Specifies that for the adult probation services fund in counties that receive SAFPS: - Any modifications to the expenditure plan affecting state appropriations shall be made in accordance to the rules and procedures established by the Supreme Court. - The chief fiscal officer of each county on or before August 31 of each year for the receding fiscal year, submit an annual report to the Supreme Court showing the total amount of receipts and expenditures in each account of the adult probation services fund. - The state monies in the adult probation services fund are to be used in accordance with guidelines established by the Supreme Court or the granting authority. - The state monies expended from the adult probation services fund are to supplement, not supplant county appropriations for the superior court adult probation department. - That up to $25,000 annually deposited in the adult probation services fund to be used to pay the annual assessment on member states of the interstate compact for the supervision of adult offenders. • Specifies that for the juvenile probation fund in counties that receive SAFPS: - Any modifications to the expenditure plan affecting state appropriations shall be made in accordance to the rules and procedures established by the Supreme Court. - The chief fiscal officer is to disperse monies form the fund accounts only at the direction of the presiding juvenile judge of the superior court. - The state monies in the adult probation services fund are to be used in accordance with guidelines established by the Supreme Court or the granting authority. - The state monies expended from the juvenile probation fund are to supplement, not supplant county appropriations for the superior court adult probation department. • Allows for a county with a population of 2 million persons or more or a county which has chosen not to receive SAFPS to have the county's contributions for their portion of the non-federal costs of providing long-term care system services reduced by the amount of SAFPS that the county would have received. • Provides that any increase in the county's contributions in subsequent years be reduced according to its proportionate share of the base contribution. • Specifies that county contributions be reduced in the following priority:

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

- First as applied to the contributions for portions of the Arizona Health Care Cost Containment System (AHCCCS) administration costs. - Second as applied to the contributions for AHCCCS acute care costs. - Third as applied to the contributions for the Arizona Long-Term Care Fund. Mr. Paton asked whether this applies to all counties. Ms. Whitmer replied in the affirmative. Ms. Whitmer explained the Farnsworth seven-line amendment dated 2/15/06 specifies that reduced contributions for health care costs would begin in fiscal year 2006-2007. It would include more acute care circumstances which would fall under the section for contributions and reductions (Attachment 14). Mr. Miranda asked whether there is a fiscal note. Ms. Whitmer advised that JLBC is preparing a fiscal note. David Smith, Manager, Maricopa County Board of Supervisors, testified in support of H.B. 2819. He said this bill comes out of a successful three-year experiment that emanated from Marciopa County's 2002, 2003 and 2004 fiscal crisis. In 2002, there were some real cutbacks in the adult probation department that were threatening the integrity of the commitments to county jails. Judges no longer had the tool of the probation alternative, so Maricopa County assumed 100 percent of that liability which amounted to $22 million. This bill codifies that successful experiment and creates an option for counties to do a similar thing in juvenile probation. He stated that counties would be 100 percent responsible for the quality of the results and outcomes. Maricopa County is very proud of coming from a period of fiscal crisis and turning it around, creating a very positive government solution to a tough problem. It has created the ability to make more flexible judgments. He said it is a win-win situation for the State, counties and taxpayers. Mr. Barnes queried how other counties feel about this. Mr. Smith said he thinks the other counties are studying this as an option. Mr. Paton asked whether Maricopa County would be open to keeping this in Maricopa County to see how it works. Mr. Smith replied the County would be amenable to that suggestion. Jerry Landau, Legislative Liaison, Administrative Office of the Courts (AOC), Arizona Supreme Court, testified in opposition to H.B. 2819. He said the bill makes more broad-based changes than what Mr. Smith has talked about. It is not just the funding but the operation of probation. He advised that Maricopa County does participate in some of the programming that is still State-funded. He related there are tradeoffs for opting out of State aid. The bill does not address the $5.5 million deficit in probation funding that would still be in place, and does not address the issue of State liability attached to probation. Mr. Miranda asked whether this will affect outlying counties if the provisions of this bill are limited to Maricopa County. Mr. Landau answered that if this were opened up to all the counties, all the shared services that AOC provides would be impacted. In reply to Mr. Downing, Mr. Landau said there is nothing in the bill that would require the counties to maintain their current funding levels. If a county decided to use the money for other purposes, it could be shifted from probation under this bill. Bob Brutinel, Presiding Judge, Yavapai County Superior Court, spoke against H.B. 2819. He advised that people are put on probation to protect the public. In addition, probation keeps the probationers in the community for the purpose of paying restitution, supporting their families and paying taxes. When people are on probation, the concern is that they are adequately being supervised. Small counties rely on the technical assistance provided by the courts. If this legislation passes, there is concern about whether the current funding levels will be maintained. Additionally, there is concern about probation caps and whether the probationers will be adequately supervised. He said that if he cannot be assured that the public will be protected, he will put these people in prison instead of putting them on probation.

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Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

In response to Mr. Miranda, Judge Brutinel said if it is a joint funded system from a county and the State, the monies come from the Administrative Office of the Courts. AOC provides counties with treatment resources, probation supervision and technical assistance. He expressed concern about losing these resources if the county were not part of a statewide system. Representative Russell Pearce, sponsor, advised this bill codifies what was done through the budget process last year. He said he is willing to entertain an amendment to make this applicable only to Maricopa County at this point. There are county probation officers and State probation officers, and that creates problems. He opined this is an executive function, not a judicial function, and has no business being part of the courts. It is an enforcement activity in conflict with judicial philosophy and judicial mission. Maricopa County has done an outstanding job with this and that should be continued. This bill saves money for the State, it builds and enhances the probation system and relieves the State of funding the program. Mr. Downing wondered whether the State is abrogating its responsibility for pubic safety by removing its ability to set a cap on the staff-to-probationer ratio for adult probation. Representative Pearce replied this is a good system and he trusts the County to do the right thing. He thinks removing those caps is the right thing to do. The Council should make decisions regarding the ratio of staff to probationers. Mr. Downing commented that one of the roles of the Legislature is to protect the safety of the public. The bill will be removing the cap, which actually puts Maricopa County at risk. He opined the State should maintain the role to set caps to protect public safety. Mr. Miranda referred to Judge Brutinel's testimony that changing the system could result in more people going to prison. He asked the sponsor if he disagrees with that. Representative Pearce replied that he thinks that statement is inappropriate. Person in support of H.B. 2819 who did not speak: Jessica Blazina, Communications & Government Relations, County Supervisors Association Question was called for on Vice-Chairman Barto's motion that the Farnsworth seven-line amendment dated 2/15/06 be adopted (Attachment 14). The motion carried. Vice-Chairman Barto moved that H.B. 2819 as amended do pass. The motion carried by a roll call vote of 6-3-0-0 (Attachment 16). H.B. 2142, human eggs; sale; prohibition - DO PASS Vice-Chairman Barto moved that H.B. 2142 do pass. Vice-Chairman Barto moved that the Gallardo nine-line amendment dated 2/15/06 be adopted (Attachment 17). Katy Proctor, Majority Research Analyst, advised that H.B. 2142 makes it a Class 6 felony for a person to sell or offer to sell a human oocyte for money or other valuable consideration (Attachment 18). Additionally, it is a Class 6 felony to purchase or offer to purchase a human oocyte in exchange for money or other valuable consideration. Mr. Gallardo explained his nine-line amendment dated 2/15/06 (Attachment 17). He believes this is an equality issue, and what is good for one gender is good for another. He asked for support of his amendment. Mr. Downing said he strongly supports the Gallardo amendment. Representative Bob Stump, sponsor, testified that this bill is necessary because of human cloning. There can be no cloning without procuring human eggs. The recent cloning scandal in South Korea involving the illegal procurement of women's eggs for cloning purposes highlights the need for a law addressing commercial trafficking in human oocytes. While it is illegal to use public funds for human cloning in Arizona, it is legal to engage in human cloning using private funds. The crucial question is whether to permit researchers to allow women to put their health at risk by harvesting their eggs

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Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

for the purpose of engaging in human cloning research. This bill would not restrict a woman's ability to donate eggs. It would prevent the commercialization of human eggs and the ability to profit from an invasive procedure that is medically hazardous. It is a procedure with no medical benefits for the donor, and when used for research purposes, contributes to the spread of unethical human cloning research. He believes it is illegal to sell human eggs just as it is unethical to sell human organs. He stated this is a pro-life bill and a pro-woman bill. Representative Stump advised that his position on the Gallardo amendment is that it is superfluous. He said that spermatozoa donation poses no risk to health. Donating sperm is not invasive. He urged opposition to the amendment. Mr. Quelland observed that the harvesting of eggs is dangerous, invasive and requires a medical procedure. He asked if the same is true of sperm harvesting. Representative Stump replied in the negative. Mr. Miranda said the Gallardo amendment tries to be fair in terms of addressing the issue of normal expenses for a donor wishing to help another person to get pregnant. He asked what the objection is. Representative Stump advised this bill just bans the sale of human oocytes. It has nothing to do with compensation. Discussion ensued on the issue of compensation for donor expenses. Mr. Miranda wondered whether this creates a situation for donors. His concern is whether the bill closes the door for anyone wanting to assist someone else. Representative Stump said the bill addresses the sale of human eggs in exchange for a large amount of money. If the phrase “valuable consideration” needs to be tightened, he would be willing to work on that to ensure that anyone who wants to donate eggs has the opportunity to do so in order to contribute to life as opposed to contributing to its destruction via cloning. Question was called for on Vice-Chairman Barto's motion that the Gallardo nine-line amendment dated 2/16/06 be adopted (Attachment 17). The motion failed. Persons in support of H.B. 2142 who did not speak: Ron Johnson, Executive Direct, Arizona Catholic Conference Shane Wikfors, Executive Director, Arizona Right to Life Cathi Herrod, Interim President, The Center for Arizona Policy Question was called for on Vice-Chairman Barto's motion that H.B. 2142 do pass. The motion carried by a roll call vote of 6-2-0-1 (Attachment 19). H.B. 2076, weapons; misconduct; storage; map pocket - DO PASS Vice-Chairman Barto moved that H.B. 2076 do pass. Jen Forst, Majority Intern, explained the provisions of H.B. 2076 (Attachment 20). • Requires temporary and secure storage of a weapon that an operator of a public event or establishment has in custody. - The storage must be readily accessible upon entrance and exit of the event/establishment. • Allows a person to carry a weapon in a vehicle concealed without a carry concealed weapon (CCW) if the weapon is stored in a map pocket. Representative Chuck Gray, sponsor, stated this bill adds into law the storage of a weapon in a vehicle's map pocket. The bill also relates to temporary storage for securing weapons when entering a facility. The intent is to allow for storage of a weapon on the premises before entering a facility, as well as retrieving the weapon immediately upon exiting. Gary Christensen, Arizona State Rifle and Pistol Association, testified in support of H.B. 2076. He related that he has checked his firearm on numerous occasions before entering a facility. The problem is that on leaving, he has been told he had to retrieve his weapon during business hours, which may be the next day or two. He revealed that at some facilities, the place where one stores a firearm is some distance from the front door, and that makes storage inconvenient, seldom complied with and dangerous to citizens who carry weapons. He urged that storage be more readily available, more convenient and more readily-returnable.

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

Tom Van Dorn, Arizona Association of Chiefs of Police and Phoenix Police, spoke in opposition to H.B. 2076. He said he takes no position with respect to the map pocket provision. His concern relates to the cost of having to provide temporary storage lockers for people entering public establishments. With regard to public events, the bill would require cities, counties or the sponsor of the event to provide a portable storage facility in which to store weapons. Additionally, qualified security personnel or police officers would have to be hired to be on hand to provide security. The cost issue is a concern for law enforcement. Mr. Miranda raised the issue of liability if someone makes allegations against a city or town for failing to take proper precautions at a public event. He expressed concern about the reach of this proposal, and brought up public parks. Mr. Van Dorn said that parks would be included in this, and law enforcement would have to provide some type of temporary storage facility at the entrance of the park. Mr. Yarbrough said he understands this only applies if the person putting on the public event wants to prohibit weapons from the event. Mr. Van Dorn agreed. Chairman Farnsworth said the public event issue is already covered in law. This bill relates to storage of a weapon and getting access to that weapon when the person leaves the premises. He said he believes this is a reasonable bill. Dave Kopp, President, Arizona Citizens Defense League, Inc., expressed support of H.B. 2076. He said the League does not believe there is any unfounded mandate associated with this bill regarding the cost issue. Regardless of what lockers cost, there is always the choice to not prohibit weapons by the sponsor of the event. He said that many public establishments already have storage lockers. As for signs, he believes that criminals do not obey signs and will carry their weapons regardless of what a sign says, while law-abiding citizens obey signs. He stated it is already illegal to carry a weapon in any licensed establishment that serves alcohol and that applies to a public event as well. If a person carries a gun into a public event that serves alcohol, that person is breaking the law. Parks and schools have weapon restrictions under other law. He believes he has addressed the concerns that Mr. Van Dorn raised. The problem he has is that there are different policies in different jurisdictions as to how current law is implemented. Mr. Downing raised the issue of someone breaking into the storage locker which contains a loaded arsenal. He asked whether there is the potential of creating a dangerous situation and endangering public safety. Mr. Kopp replied that he does not see that as a problem. Mr. Gallardo brought up the financial impact to those holding the event. Mr. Kopp said that if the sponsor of the event is concerned about the facility and chooses to prohibit weapons, there will be a cost. Mr. Gallardo expressed concern about who is going to bear the cost of security at a public library or a park. Mr. Kopp stated that law-abiding citizens are not the problem. He thinks the smart thing to do would be to allow law-abiding citizens to carry their weapons because criminals will ignore security measures. John Wentling, Vice President, Arizona Citizens Defense League, testified in support of H.B. 2076. He said there is the option for public libraries or public events to not put up signs because criminals do not obey signs. Mr. Miranda stated concern that this creates a duty for anyone hosting an event. Currently there is no duty for anyone sponsoring a public event. He thinks it presents problems because it opens up liability. Persons in support of H.B. 2076 who did not speak: Darren Lasorte, Legislative Liaison, National Rifle Association of America Frederick Dahnke, Arizona Citizens Defense League Question was called for on Vice-Chairman Barto's motion that H.B. 2076 do pass. The motion carried by a roll call vote of 6-3-0-0 (Attachment 21). H.B. 2696, adoption - DO PASS ÂŠ 2018 Thomson Reuters. No claim to original U.S. Government Works.

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

Vice-Chairman Barto moved that H.B. 2696 do pass. Ralene Whitmer, Assistant Majority Research Analyst, summarized the provisions of H.B. 2696 (Attachment 22): • Directs the Department of Economic Security (DES) or an agency to place a child available for adoption with any person who is qualified to adopt subject to the following: - A married couple's application must be given primary consideration. - A single person's application to adopt may be considered if a qualified married couple has not submitted an application unless one of the following apply: • The applicant is a legal relative of the child. • The alternative for the child is extended foster care. • A meaningful and healthy relationship between the applicant and the child has already been established. • The child's best interest requires the adoption by the single parent. • The adoption is the result of a direct placement adoption. • Requires the court to make a specific finding regarding the best interest of the child pursuant to this section. • Specifies that in determining which application for adoption certification to accept DES or an agency must give priority to married couples who are adult residents of this state and file jointly. • Allows DES or an agency to give secondary priority to adult residents who wish to adopt a child with special needs. Representative Steve Tully, sponsor, stated that all the evidence indicates that children brought up with two parents are more likely to do better in life than if raised by a single parent. This legislation provides that, all things being equal, adoption preference is given to a married couple over someone who is single. Concern was raised that this bill prohibits singles from adopting. That is not the intent of the bill. It is clear that the best interest of the child is paramount. He said he is willing to work on language if it needs to be clarified. Mr. Miranda said that since the emphasis is on the institution of marriage, more weight should be given to a couple that has been married a long time. Representative Tully said that is something that could be considered. Mr. Miranda wondered whether a single individual who has been a good citizen should not be considered on the same level as a married couple. Representative Tully answered that he does not think so, assuming a married couple has also been good citizens. Mr. Miranda brought up the 50 percent divorce rate in Arizona. He asked whether the sponsor has factored in the changing family structure. He said he finds it problematic that two people, just because they are married, are in a much better position to adopt a child than a single person. Representative Tully stated that all social statistics indicate that children raised by two parents are better off economically and educationally and less likely to be involved in criminal activity. He acknowledged that some single parents do a better job than married people, but with all things being equal, the adoption policy of the State should be that preference be given to a married couple. To that point, Mr. Gallardo asked if there are any statistics or studies that show that the best interests of the child would be with a married couple. To that point, Mr. Yarbrought said he can provide studies to Mr. Gallardo. Mr. Miranda stated that the best interest of the child is the top priority. He wondered how one can say that the institution of marriage guarantees the child will be better off than with a single parent. He suggested including a list of criteria to make the determination. Representative Tully related that this bill allows the consideration of all the other factors. Chairman Farnsworth said that preference is given to a married couple only if a judge believes that is in the best interest of the child. Peter Gentela, General Counsel, The Center for Arizona Policy, expressed support of H.B. 2696. A handout was distributed (Attachment 23). He stated the basic premise of adoption law is and always has been “the best interests of

Arizona House Committee Minutes, 2/16/2006, Arizona House Committee Minutes,...

children.” Relevant social science data demonstrates that children do better in life when they have a married mother and father. This bill establishes that preference. He maintained the marriage preference in this bill is sensible and flexible. He listed exceptions that are contained in the bill: if the applicant is a relative of the child, if a meaningful and healthy relationship exists between the child and the applicant, and if only single people are certified and ready to adopt. He said there needs to be a determination by the agency or by the judge that the best interests of the child are met. This bill recognizes that in most cases, the best interests of the child are served by placement with a married mother and father. Statistically, marriage is linked to reductions in child poverty, increases in health problems, increased educational success and a lower likelihood of criminal involvement. Mr. Gallardo brought up the situation of a child with special needs. Mr. Gentala said that issue already exists in law and this preference does not change that. Person in support of H.B. who did not speak: Ron Johnson, Executive Director, Arizona Catholic Conference Person opposed to H.B. 2829 who did not speak: Marge Mead, National Organization for Women-Arizona Person neutral on H.B. 2829 who did not speak: Shane Wikfors, Executive Director, Arizona Right to Life Question was called for on Vice-Chairman Barto's motion that H.B. 2696 do pass. The motion carried by a roll call vote of 6-3-0-0 (Attachment 24). H.B. 2829, precinct registers; voter registration count - DO PASS Vice-Chairman Barto moved that H.B. 2829 do pass. Ralene Whitmer, Assistant Majority Research Analyst, reviewed the provisions of H.B. 2829 (Attachment 25): • Requires the county recorder to distribute precinct lists to the county and state chairmen within ten business days of the date the county recorders are required to count registered voters. • Provides that the county recorder must deliver a daily list of those who have requested an early ballot and a weekly list of those who have returned an early ballot upon the request of the county and state chairmen from 33 days prior to the election to three days before the election. • Includes June 1 in the list of dates for even numbered years that the county recorder is required to count the registered voters. • Requires that for municipal election administered by the county: - The city or town clerk must provide voter registration and precinct lists if requested by the county and state chairmen. - The county and state chairmen may request that the county recorder provide municipal voter registration and precinct lists if the chairmen are unable to obtain the lists from the city or town clerk. - The city or town clerk to adhere to the schedule followed by county recorders when providing registration information and precinct lists to the county and state chairmen. Person in support of H.B. 2829 who did not speak: Jennifer Daily, Arizona Education Association Persons neutral on H.B. 2829 who did not speak: Karen Osborne, Elections Director, Maricopa County Helen Purcell, representing self Question was called for on Vice-Chairman Barto's motion that H.B. 2829 do pass. The motion carried by a roll call vote of 6-0-0-3 (Attachment 26). H.B. 2490, sex offenders; annul community notification S/E: sexually oriented business; location; penalty - DO PASS AMENDED S/E

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Vice-Chairman moved that H.B. 2490 do pass. Vice-Chairman moved that the Farnsworth four-page strike-everything amendment dated 2/14/06 to H.B. 2490 be adopted (Attachment 27). Katy Proctor, Majority Research Analyst, explained the provisions of the Farnsworth four-page strike-everything amendment dated 2/14/06 (Attachment 28): • Prohibits an adult oriented business from being located within ¼ mile of a: Child care facility Private, public or charter school Public playground Public recreational facility Residence Church • Measures the distance in a straight line in all directions, without regard to structures or objects, to the nearest point on the property line. • Allows counties or municipalities to enact/enforce ordinances that regulate the location of adult oriented businesses. • Makes a violation a Class 1 misdemeanor. Each day of violation of either the ¼ mile location restriction or the operating hours requirements contained in the same section is considered a separate offense. • States that if there is reason to believe a violation is taking place, the county attorney shall or a private citizen may, maintain an action to abate and prevent the violation. • Exempts existing adult oriented businesses that are established and operating in compliance with all state laws and local ordinances from the new ¼ mile location restriction. • Provides a statement of legislative findings. • Defines adult oriented business using the same definition provided in A.R.S. § 11-821. • Contains an emergency clause. Representative Laura Knaperek, sponsor, related that it came to her attention that there are a lot of strip malls in the State. Near and in those strip malls are charter schools, churches and neighborhoods. Her intent with H.B. 2490 is to keep enough distance between adult-oriented businesses and children. She noted there also are adverse secondary effects. Mr. Gallardo queried what would constitute a sexually-oriented business. He wondered how broad this is. Representative Knaperek said she is following what is currently in statute. She is not adding to or deleting from that. Vice-Chairman Barto moved that the Gallardo four-page amendment dated 2/15/06 to the Farnsworth four-page strikeeverything amendment dated 2/14/06 be adopted (Attachment 29). Ms. Proctor explained the Gallardo four-page amendment dated 2/15/06 to the Farnsworth four-page strike-everything amendment dated 2/14/06 prohibits the Department of Liquor from issuing a retailer's license to any premises that is within a one-quarter mile of a child care facility, school, public playground, public recreational facility, residence or church (Attachment 29). She advised that current law prohibits a retailer's license from being issued to any premises within 300 feet of any of those places. Mr. Quelland questioned whether that includes grocery stores. Ms. Proctor said she will check on that. Mr. Quelland brought up drive-through stores that sell liquor. Ms. Proctor said she believes that would be included but she wants to check on that also. Mr. Gallardo explained his amendment. He said that bars are businesses that have the most violent secondary effects and they should be included in order to protect schools and parks. Chairman Farnsworth asked if the intent is to go after bars, not grocery stores. Mr. Gallardo replied in the affirmative.

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Representative Knaperek said the amendment appears to do more than that. The amendment addresses another section of law. She is not sure whether it brings up a constitutionality issue. She advised she does not support the Gallardo amendment. Right now, the bill has a good balance and she is not sure that would still occur with the adoption of the amendment. Mr. Gallardo distributed a handout to Members showing what he is trying to do (Attachment 30). Question was called for on Vice-Chairman Barto's motion that the Gallardo four-page amendment dated 2/15/06 to the Farnsworth four-page strike-everything amendment dated 2/14/06 be adopted (Attachment 29). The motion failed. Question was called for on Vice-Chairman Barto's motion that the Farnsworth four-page strike-everything amendment dated 2/14/06 be adopted (Attachment 27). The motion carried. Vice-Chairman Barto moved that H.B. 2490 as amended do pass. Darlene Justus, North Tempe Neighborhood Association, testified in support of H.B. 2490. She advised she is also the chair of the Commercial Revitalization Committee that has been working to revitalize commercial corridors in north Tempe. The Committee worked very hard to get appropriate separation ordinances for other secondary-effect businesses and to get proper use permits for certain other businesses. Very serious issues have been seen with adultoriented businesses being too close to neighborhoods. Convenience stores are now showing pornography magazines and videos openly. She maintained that separation is very important to maintain the vitality of neighborhoods. She thinks this bill, with the quarter-mile prohibition, will really help. Regarding the liquor license issue, she cautioned that if liquor is not allowed in strip clubs, these businesses will go totally nude. She believes that upholding the quarter-mile provision will help neighborhoods. Mr. Gallardo referred to testimony about convenient stores and again questioned the broadness of this bill. Ms. Justus said this legislation will provide a tool to keep the real adult-oriented businesses away from neighborhoods. Peter Gentala, General Council, The Center for Arizona Policy, testified in support of H.B. 2490. He stated the Supreme Court recognizes that State and local governments have the authority to regulate sexually-oriented businesses based on harmful secondary effects. The courts have recognized the following secondary effects to be the ones that can be regulated: diminished property values, litter, ascetic impacts, noise, blight, public indecency, lewdness, sexual activity, potential spread of disease, illicit drug use and trafficking, and other personal and property crimes associated with the location of sexually-oriented businesses. He provided Members with documentation on the harmful secondary effects of sexually oriented businesses (Attachment 31). Mr. Gallardo queried the types of crimes that are being committed near these types of businesses. Mr. Gentala replied that the Supreme Court does not require direct evidence of local problems. He maintained that it is constitutional to pass this legislation. Mr. Gallardo again raised the issue of broadness and how this could be interpreted. Chairman Farnsworth asked the kinds of businesses this will impact. Mr. Gentala said an adult business includes adult arcades, adult video stores, adult live entertainment establishments, adult theaters, nude modeling studios, adult book stores, cabarets, adult motion picture theaters and massage establishments. He advised the definition of adult business has been litigation-tested. Persons in support of H.B. 2490 who did not speak: Donna Neill, Director, Neighborhood Activists Inter-linked Empowerment Movement (NAILEM) F.C Slaght, Treasurer, Neighborhood Activists Inter-linked Empowerment Movement (NAILEM) Timothy La Sota, Special Assistant County Attorney, Maricopa County Attorney's Office A packet on secondary effects resources was provided and asked to be made a part of the record (Attachment 32).

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Question was called for on Vice-Chairman Barto's motion that H.B. 2490 as amended do pass. The motion carried by a roll call vote of 9-0-0-0 (Attachment 33). Without objection, the meeting adjourned at 11:45 a.m. ___________________________________ Joanne Bell, Committee Secretary March 13, 2006 (Original minutes, attachments and tape on file in the Chief Clerk's Office)

AZ H.R. Comm. Min., 2/16/2006 End of Document

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