Senate Journal 01/28/2005 1:00 PM

JOURNAL OF THE SENATE

EIGHTIETH SESSION

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Friday, January 28, 2005

The Senate convened at 1:00 p.m., pursuant to adjournment, the President presiding.

The prayer was offered by the Chaplain, Pastor Nancy Kapp, followed by the Pledge of Allegiance led by Senate page Emily Jepsen.

Roll Call: All members present except Sens. Duenwald, Lintz, McCracken, Smidt, and Two Bulls who were excused.

APPROVAL OF THE JOURNAL

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Secretary of the Senate has had under consideration the Senate Journal of the twelfth day.

All errors, typographical or otherwise, are duly marked in the temporary journal for correction.

And we hereby move the adoption of the report.

Respectfully submitted,

Lee Schoenbeck, Chair

Which motion prevailed and the report was adopted.

COMMUNICATIONS AND PETITIONS

January 28, 2005

Mr. President and Members of the Senate:

I have the honor to inform you that I have approved Senate Bill 69 and the same has been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 112 and returns the same with the recommendation that said bill do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

The Committee on State Affairs respectfully reports that it has had under consideration SB 110 and returns the same with the recommendation that said bill be amended as follows:

On page 1, after line 9 of the printed bill, insert:

"Section 2. That chapter 43-41B be amended by adding thereto a NEW SECTION to read as follows:

Any intangible property held for the owner by a court, federal, state, or other government, governmental subdivision or agency or entity, public corporation, public authority, or public officer of this state which has a value of less than one hundred dollars shall be reported to the state treasurer by June thirtieth and December thirty-first of each year. The state treasurer shall prescribe the format for the report. If no report is filed with the state treasurer, all intangible property shall be forwarded to the state treasurer within thirty days after the report was due pursuant to this section."

And that as so amended said bill do pass.

Respectfully submitted,
Eric H. Bogue, Chair

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration SB 78 and HB 1033 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration HB 1037, 1040, and 1044 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration HB 1043 and returns the same with the recommendation that said bill be amended as follows:

On page 2, after line 10 of the printed bill, insert:

"Section 2. That subdivision (8) of § 10-46-1 be amended to read as follows:

(8) "Prepared food," any food sold in a heated state or heated by the seller ~~. The term, prepared food, does not include:~~

~~(a) Two or more food ingredients mixed or combined by the seller for sale as a single item;~~

(b) Food that is only cut, repackaged, or pasteurized by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the Food and Drug Administration in chapter 3, part 401.11 of its Food Code as of January 1, 2003, so as to prevent food borne illnesses; or

(c) Food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport the food. ; two or more food ingredients mixed or combined by the seller for sale as a single item; or food sold with eating utensils provided by the seller, including plates, knives, forks, spoons, glasses, cups, napkins, or straws. A plate does not include a container or packaging used to transport the food.

Prepared food does not include food that is only cut, repackaged, or pasteurized by the seller, and eggs, fish, meat, poultry, and foods containing these raw animal foods requiring cooking by the consumer as recommended by the Food and Drug Administration in chapter 3, part 401.11 of its Food Code as of January 1, 2003, so as to prevent food borne illnesses;".

And that as so amended said bill do pass and be placed on the Consent Calendar.

Also MR. PRESIDENT:

The Committee on Taxation respectfully reports that it has had under consideration SB 4 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Dave Knudson, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration SB 97 and 98 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1071 and 1072 and returns the same with the recommendation that said bills do pass and be placed on the Consent Calendar.

Respectfully submitted,
Gene G. Abdallah, Chair

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 14, 18, 19, 31, 32, 44, 62, and 63 and finds the same correctly enrolled.

Respectfully submitted,
Lee Schoenbeck, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to return herewith SB 54 which has been amended by the House and your concurrence in the amendments is respectfully requested.

I have the honor to transmit herewith HCR 1003, 1004, and 1005 which have been adopted by the House and your concurrence is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 14, 18, 19, 31, 32, 44, 62, and 63 which have passed the House without change.

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1078 and 1097 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS

Sen. Ed Olson moved that the appointment of Barbara Everist, Clint Waara, and Terry Baloun be referred from the Committee on State Affairs to the Committee on Education.

Which motion prevailed.

SCR 3 Introduced by: Senators Olson (Ed), Dempster, Duniphan, Gray, Hanson (Gary), Hundstad, McCracken, Napoli, Nesselhuf, Peterson (Jim), Sutton (Duane), and Two Bulls and Representatives Tidemann, Cutler, Hennies, and Kraus

A CONCURRENT RESOLUTION, Recognizing October fifteenth as Pregnancy and Infant Loss Remembrance Day.

WHEREAS, it is a great tragedy to lose the life of a child and each year, approximately one million pregnancies in the United States end in miscarriage, stillbirth, or the death of a newborn baby; and

WHEREAS, the availability of information and support is of the utmost importance for families to cope with pregnancy or infant loss; and

WHEREAS, an informed and educated public would have more capability to respond with compassion to the affected families; and

WHEREAS, establishing a Pregnancy and Infant Loss Remembrance Day may provide solace and comfort to those who have lost a baby through miscarriage, stillbirth, or other complications and provide an opportunity for the public to increase their awareness and understanding of this tragedy:

NOW, THEREFORE, BE IT RESOLVED, by the Senate of the Eightieth Legislature of the State of South Dakota, the House of Representatives concurring therein, that October fifteenth be proclaimed as Pregnancy and Infant Loss Remembrance Day.

Was read the first time.

The President announced the waiving of the committee referral and placed SCR 3 on the calendar of January 31, the 14^th legislative day.

HCR 1003: A CONCURRENT RESOLUTION, Expressing the gratitude of South Dakota to Thomas A. Daschle for his distinguished service to state and nation.

Was read the first time.

The President announced the waiving of the committee referral and placed HCR 1003 on the calendar of January 31, the 14^th legislative day.

HCR 1004: A CONCURRENT RESOLUTION, Supporting a Taiwan-United States free trade agreement.

Was read the first time.

The President announced the waiving of the committee referral and placed HCR 1004 on the calendar of January 31, the 14^th legislative day.

HCR 1005: A CONCURRENT RESOLUTION, Concerning endorsement of the participation of Taiwan in the World Health Organization.

Was read the first time.

The President announced the waiving of the committee referral and placed HCR 1005 on the calendar of January 31, the 14^th legislative day.

CONSIDERATION OF REPORTS OF COMMITTEES

Sen. Bogue moved that the reports of the Standing Committees on

Agriculture and Natural Resources on SB 17 as found on page 197 of the Senate Journal ; also

Education on SB 72 as found on page 196 of the Senate Journal ; also

Transportation on SB 74 as found on page 198 of the Senate Journal be adopted.

Which motion prevailed and the reports were adopted.

FIRST READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 179 Introduced by: Senators Hansen (Tom), Duniphan, Greenfield, Olson (Ed), and Two Bulls and Representatives McCoy, Frost, Hackl, Halverson, and Jensen

FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the practice of occupational therapy.

Was read the first time and referred to the Committee on Commerce.

SB 180 Introduced by: Senators Earley and Kelly and Representative Wick

FOR AN ACT ENTITLED, An Act to clarify that a tax may not be abated if a tax certificate is outstanding.

Was read the first time and referred to the Committee on Taxation.

SB 181 Introduced by: Senators Lintz, Duenwald, Hanson (Gary), Hundstad, McNenny, Moore, Napoli, and Peterson (Jim) and Representatives Pederson (Gordon), Brunner, Hargens, Howie, and McCoy

FOR AN ACT ENTITLED, An Act to establish requirements and policies for the management and conservation of prairie dogs in national grasslands areas.

Was read the first time and referred to the Committee on Agriculture and Natural Resources.

SB 182 Introduced by: Senators Kelly and Adelstein and Representatives Dykstra, Cutler, Hennies, and Murschel

FOR AN ACT ENTITLED, An Act to provide for a commercial real estate broker lien.

Was read the first time and referred to the Committee on Commerce.

SB 183 Introduced by: Senator Olson (Ed) and Representatives Vehle and Sebert

FOR AN ACT ENTITLED, An Act to require the filing of certain notices of intention to preserve possibilities of reverter and rights of entry and to provide for the termination of such rights in the absence of notification.

Was read the first time and referred to the Committee on Judiciary.

SB 184 Introduced by: Senators Bogue, Bartling, and Koskan and Representatives Deadrick, Dennert, and Klaudt

FOR AN ACT ENTITLED, An Act to make an appropriation to the Department of Education to assist certain school districts with capital improvement needs.

Was read the first time and referred to the Committee on Education.

SECOND READING OF CONSENT CALENDAR ITEMS

SB 89: FOR AN ACT ENTITLED, An Act to revise certain supervision requirements regarding the delegation of procedures to dental hygienists.

Was read the second time.

The question being "Shall SB 89 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; McNenny; Moore; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Sutton (Dan); Sutton (Duane)

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1021: FOR AN ACT ENTITLED, An Act to revise the state trunk highway system.

Was read the second time.

The question being "Shall HB 1021 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1022: FOR AN ACT ENTITLED, An Act to repeal certain provisions regarding the winter safe maintenance fund.

Was read the second time.

The question being "Shall HB 1022 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1035: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the regulation of remote service banking.

Was read the second time.

The question being "Shall HB 1035 pass as amended?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1045: FOR AN ACT ENTITLED, An Act to provide for the continuance of coverage for dependents on certain health insurance policies.

Was read the second time.

The question being "Shall HB 1045 pass as amended?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1046: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding examination reports of insurers and insurance producers.

Was read the second time.

The question being "Shall HB 1046 pass as amended?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1047: FOR AN ACT ENTITLED, An Act to authorize premium discounts for small employers who meet certain carrier participation requirements.

Was read the second time.

The question being "Shall HB 1047 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1050: FOR AN ACT ENTITLED, An Act to provide that residents under sixteen years of age are not required to obtain a resident wholesale bait dealer license.

Was read the second time.

The question being "Shall HB 1050 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1063: FOR AN ACT ENTITLED, An Act to repeal certain administrative rule-making authority regarding education for gifted children.

Was read the second time.

The question being "Shall HB 1063 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HB 1064: FOR AN ACT ENTITLED, An Act to remove the requirement for a certificate of health for certain persons with continuing contracts in a consolidated school district.

Was read the second time.

The question being "Shall HB 1064 pass?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

There being no objection, the Senate reverted to Order of Business No. 5.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Appropriations respectfully reports that it has had under consideration SB 36 and HB 1055 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Committee on Appropriations respectfully reports that it has had under consideration SB 34 and returns the same with the recommendation that said bill be amended as follows:

On page 1, after line 10 of the printed bill, insert:

"Section 2. Notwithstanding the provisions of § 13-51-2, no money from the state general fund, student tuition fees, the educational facilities fund, nor any money appropriated for statewide maintenance and repair, may be used to finance the maintenance and repair of the facilities specified in this Act."

And that as so amended said bill do pass.

Respectfully submitted,
Jerry Apa, Chair

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS

SB 2: FOR AN ACT ENTITLED, An Act to revise the procedure for assessing certain agricultural property.

Was read the second time.

Sen. Bogue moved that SB 2, 3, 86, and 96 be deferred to Monday, January 31, the 14^th legislative day.

Which motion prevailed.

SB 53: FOR AN ACT ENTITLED, An Act to provide for adequate access to health care provider networks.

Was read the second time.

Sen. Broderick moved that SB 53 be further amended as follows:

On page 2, line 1 of the Senate Commerce Committee engrossed bill, after " Act. " insert "A plan or program offered by a health care provider as defined in § 34-12C-1 is not required to register pursuant to this Act if the health care provider does not charge for the plan or program."

Which motion prevailed.

The question being "Shall SB 53 pass as amended?"

And the roll being called:

Yeas 30, Nays 0, Excused 5, Absent 0

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 56: FOR AN ACT ENTITLED, An Act to repeal certain provisions relating to preadmission assessment for admission to nursing facilities.

Was read the second time.

The question being "Shall SB 56 pass?"

And the roll being called:

Yeas 29, Nays 1, Excused 5, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hanson (Gary); Hundstad; Kelly; Kloucek; Knudson; Koetzle; Kooistra; Koskan; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Sutton (Dan); Sutton (Duane)

Nays:
Moore

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

SB 109: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the modification of credit card agreements.

Was read the second time.

The question being "Shall SB 109 pass?"

And the roll being called:

Yeas 27, Nays 3, Excused 5, Absent 0

Yeas:
Abdallah; Adelstein; Apa; Bartling; Bogue; Broderick; Dempster; Duniphan; Earley; Gant; Gray; Greenfield; Hansen (Tom); Hundstad; Kelly; Knudson; Koetzle; Kooistra; Koskan; McNenny; Napoli; Nesselhuf; Olson (Ed); Peterson (Jim); Schoenbeck; Sutton (Dan); Sutton (Duane)

Nays:
Hanson (Gary); Kloucek; Moore

Excused:
Duenwald; Lintz; McCracken; Smidt; Two Bulls

So the bill having received an affirmative vote of a majority of the members-elect, the President declared the bill passed and the title was agreed to.

HONORED GUEST

The President introduced United States Congresswoman Stephanie Herseth who spoke briefly.

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1078: FOR AN ACT ENTITLED, An Act to increase the motorcycle safety education fee and to provide for the repeal of the fee.

Was read the first time and referred to the Committee on Transportation.

HB 1097: FOR AN ACT ENTITLED, An Act to authorize the use of special elections to fill vacancies in the office of the mayor and on the governing boards of certain municipalities.

Was read the first time and referred to the Committee on Local Government.

Sen. Bogue moved that HB 1008 and 1019 be deferred to Monday, January 31, the 14^th legislative day.

Which motion prevailed.

SIGNING OF BILLS

The President publicly read the title to

SB 9: FOR AN ACT ENTITLED, An Act to repeal certain obsolete provisions relating to a plan for integrated telecommunications functions and facilities.

SB 10: FOR AN ACT ENTITLED, An Act to revise certain references to the Rural Development Telecommunications Network language with appropriate references to the Digital Dakota Network.

SB 14: FOR AN ACT ENTITLED, An Act to modify provisions related to the payment of unemployment insurance benefits.

SB 18: FOR AN ACT ENTITLED, An Act to require the Public Utilities Commission to disburse certain bond or other proceeds to affected customers.

SB 19: FOR AN ACT ENTITLED, An Act to revise the length of time for the Public Utilities Commission to act on an application for a certificate of authority for interexchange telecommunications service.

SB 20: FOR AN ACT ENTITLED, An Act to prohibit a mobile telecommunications service provider from including a subscriber's telephone number in a wireless directory assistance service database without the subscriber's authorization.

SB 21: FOR AN ACT ENTITLED, An Act to update certain citations to federal regulations regarding the pipeline safety inspection program.

SB 31: FOR AN ACT ENTITLED, An Act to update certain provisions pertaining to motor carrier safety and transportation of hazardous materials.

SB 32: FOR AN ACT ENTITLED, An Act to change certain references from the Department of Revenue and Regulation to the Department of Public Safety.

SB 33: FOR AN ACT ENTITLED, An Act to update certain provisions for specifications and tolerances for weighing and measuring devices.

SB 44: FOR AN ACT ENTITLED, An Act to revise certain provisions relating to the collection of debt and fees by the Bureau of Administration.

SB 62: FOR AN ACT ENTITLED, An Act to authorize the South Dakota Science and Technology Authority to invest funds with the State Investment Council.

SB 63: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding pedestrian control signals.

HB 1009: FOR AN ACT ENTITLED, An Act to revise certain filing requirements for limited liability companies and to repeal certain obsolete provisions.

HB 1010: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding federal tax lien registrations.

HB 1020: FOR AN ACT ENTITLED, An Act to revise certain provisions related to clemency hearings and other hearings of the Board of Pardons and Paroles.

HB 1048: FOR AN ACT ENTITLED, An Act to modify certain bonding provisions for nonresident violators of game, fish and park laws.

And signed the same in the presence of the Senate.

Sen. McNenny moved that the Senate do now adjourn, which motion prevailed and at 1:44 p.m. the Senate adjourned.

Patricia Adam, Secretary