JOURNAL OF THE SENATE

EIGHTIETH SESSION  



TWENTY-THIRD DAY



STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Thursday, February 10, 2005

     The Senate convened at 2:00 p.m., pursuant to adjournment, the President presiding.

     The prayer was offered by the Chaplain, Pastor Genie Butler, followed by the Pledge of Allegiance led by Senate page Cody Raterman.

     Roll Call: All members present except Sens. Duenwald and Gant 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 twenty-second 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.
CONSIDERATION OF EXECUTIVE APPOINTMENTS


     The Senate proceeded to the consideration of the executive appointment of Raymond W. Carpenter of Pennington County, Rapid City, South Dakota, as the Assistant Adjutant General, Army.

     The question being "Does the Senate advise and consent to the executive appointment of Raymond W. Carpenter pursuant to the executive message as found on page 40 of the Senate Journal?"

     And the roll being called:

     Yeas 32, Nays 0, Excused 3, Absent 0

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

     Excused:
Adelstein; Duenwald; Gant

     So the question having received an affirmative vote of a majority of the members-elect, the President declared the appointment confirmed.

COMMUNICATIONS AND PETITIONS


February 9, 2005

Mr. President and Members of the Senate:

     I have the honor to inform you that on February 9, 2005, I approved Senate Bills 38, 40, 56, and 84, and the same have been deposited in the office of the Secretary of State.

Respectfully submitted,
M. Michael Rounds
Governor

REPORTS OF STANDING COMMITTEES


MR. PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 144 and returns the same with the recommendation that said bill be amended as follows:

144ra
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. An obligation of a professional corporation or limited liability company formed pursuant to chapter 47-11, 47-11A, 47-11B, 47-11C, 47-11D, 47-11E, 47-12, 47-13, 47-13A, or 47-13B, whether arising in contract, tort, or otherwise, is the obligation of the professional corporation or limited liability company. No shareholder, director, or officer of a professional corporation or member or manger of a limited liability company is personally liable, directly or indirectly, by way of contribution or otherwise, for such an obligation solely by being or so acting as the shareholder, director, or officer of a professional corporation or member or manager of a limited liability company. This limitation of liability does not extend to amounts owed to the State of South Dakota or its political subdivisions for any taxes, or any penalty or interest on such taxes.

     Section 2. Any professional corporation or limited liability company may amend its articles of incorporation to be consistent with this Act.

     Section 3. The code counsel shall codify sections 1 and 2 of this Act in chapters 47-11, 47- 11A, 47-11B, 47-11C, 47-11D, 47-11E, 47-12, 47-13, 47-13A, and 47-13B.

     Section 4. That   § §  47-11A-8, 47-11A-9, 47-11A-10, 47-11A-11, and 47-11A-12 be repealed.

     Section 5. That § §  47-11B-17, 47-11B-18, 47-11B-19, 47-11B-20, and 47-11B-21 be repealed.

     Section 6. That § §  47-11C-17, 47-11C-18, 47-11C-19, 47-11C-20, and 47-11C-21 be repealed.

     Section 7. That § §  47-11D-17, 47-11D-18, 47-11D-19, 47-11D-20, and 47-11D-21 be repealed.

     Section 8. That § §  47-11E-8, 47-11E-9, 47-11E-10, 47-11E-11, and 47-11E-12 be repealed.

     Section 9. That subdivision 47-13A_2(7) be repealed.

     Section 10. That § §  47-13B-8, 47-13B-9, 47-13B-10, 47-13B-11, 47-13B-12 be repealed."


     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 217 and returns the same with the recommendation that said bill be amended as follows:

217jc
     On page 3, line 10 of the printed bill, delete " section " and insert " sections ".

     On page 3 , line 17, delete " 1 to 26, inclusive, and sections 371 to " and insert " 7 and 8 ".

     On page 3 , line 18, delete " 389, inclusive, " .

     On page 16 , delete lines 5 to 17 , inclusive, and insert:

    "(2) In this chapter the following have the meanings defined in § 47-2-1 Terms in this chapter mean :

             (a)      "Board , " the board of directors of a corporation;

             (b)      "Class , " if used with reference to shares, means a category of shares that differs in designation or one or more rights or preferences from another category of shares of the corporation;

             (c)      "Director , " a member of the board;

             (d)      "Good faith , " honesty in fact in the conduct of the act or transaction concerned;

             (e)      "Intentionally , " that the person referred to either has a purpose to do or fail to do the act or cause the result specified or believes that the act or failure to act, if successful, will cause that result. A person intentionally violates a statute if the person intentionally does the act or causes the result prohibited by the statute, or if the person intentionally fails to do the act or cause the result required by the statutes, even though the person may not know of the existence or constitutionality of the statute or the scope or meaning of the term used in the statute;

             (f)      "Knows," or has "knowledge , " has actual knowledge of it. A person does not know of a fact merely because the person has reason to know of the fact;

             (g)      "Notice , " is given by a corporation to a person when mailed to the person at the last known address of the person, when communicated to the person orally, when handed to the person, when left at the office of the person with a clerk or other person in charge of the office, or if there is no one in charge, when left in a conspicuous place in the office, or if the office is closed or the person to be notified has no office, or when left at the dwelling house or usual place of abode of the person with some person of suitable age and discretion then residing therein. Notice is given to a corporation when mailed or delivered to it at its registered office. Notice by mail is given when deposited in the United States mail with sufficient postage affixed;
             (h)      "Officer , " a person elected, appointed, authorized, or otherwise designated as an officer by the board, and any other person considered elected as an officer;

             (i)      "Organization , " a domestic or foreign corporation partnership, limited partnership, joint venture, association, business trust, estate, trust, enterprise and any other legal or commercial entity;

             (j)      "Outstanding shares , " all shares duly issued and not reacquired by a corporation;

             (k)      "Series . , " a category of shares, within a class of shares authorized or issued by a corporation by or pursuant to its articles, that have some of the same rights and preferences as other shares within the same class, but that differ in designation or one or more rights and preferences from another category of shares within that class. "

     On page 16 , delete lines 18 to 23 , inclusive.

     On page 20 , delete lines 21 and 22 , and insert:

"licensed to do business within this state pursuant to chapter 47-8 47-34A ; a corporation organized under the".


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

Also MR. PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 201 and tabled the same.

Also MR. PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 147 and 206 which were deferred to the 41st Legislative Day.

Also MR. PRESIDENT:

    The Committee on Judiciary respectfully reports that it has had under consideration SB 43 and returns the same with the recommendation that said bill be amended as follows:

43rf
     On page 79 of the printed bill, delete lines 3 to 5 , inclusive, and insert:

    "No person who has been convicted of any misdemeanor crime involving an act of domestic violence may possess or have control of a firearm for a period of one year from the date of conviction. Any violation of this section is a Class 1 misdemeanor. At the end of the one year period, any civil rights lost as a result of this provision shall be restored. Any person who has lost their right to possess or have control of a firearm as a result of a misdemeanor conviction involving an act of domestic violence, prior to the date of the effectiveness of this Act, shall be restored to those civil rights one year after the effective date of this Act. This section shall be repealed on the date when any federal law restricting the right to possess firearms for misdemeanor domestic violence convictions is repealed.

     Once eligible under the statute, a person convicted under this section may petition the convicting court for an order reflecting the restoration of any firearm rights lost, if the person has not been convicted within the prior year of a crime for which firearm rights have been lost. A petition filed under this section shall be verified by the petitioner and served upon the states attorney in the county where the conviction occurred. Thirty days after service upon the states attorney, the court shall enter the order, if the court finds that the petitioner is eligible for relief under this section."

43ra
     On page 29 of the printed bill, delete line 24 , and insert:

    "Section 100. That § 22-34-27 be amended to read as follows:

     22-34-27.   Any person who, with intent to cause damage, deposits, throws, or propels any substance upon any highway, roadway, runway, or railroad tracks, or at any vehicle while such vehicle is either in motion or stationary, is guilty of a Class 1 misdemeanor. "


     On page 30 , delete lines 1 to 3 , inclusive.

43rc
     On page 60, line 4 of the printed bill, overstrike " jailer, " .

     On page 60 , line 4, delete " management " and insert " medical technician ".

     On page 60 , line 5, delete " personnel " .

     On page 61 , line 2, delete " , jailer " and insert " jailer ".

     On page 61 , line 3, delete " management personnel " and insert " medical technician ".

     On page 61 , line 13, delete " , jailer " and insert " jailer ".

     On page 61 , line 14, delete " management personnel " and insert " medical technician ".

     On page 61 , line 15, delete " management personnel " and insert " medical technician ".

     On page 61 , line 21, delete " , jailer " and insert " jailer ".

     On page 61 , line 21, delete " management personnel " and insert " medical technician ".

     On page 61 , line 22, delete " jailer, " .
     On page 61 , line 22, delete " management personnel " and insert " medical technician ".

43rd
     On page 75, line 14 of the printed bill, delete " shall may " and insert "shall".

43rg
     On page 12 of the printed bill, delete lines 8 to 10 , inclusive, and insert:

    "Section 38. That § 22-29-9 be amended to read as follows:

     22-29-9.   So much of an oath of office as relates to future performance of official duty is not sufficient to constitute perjury or subornation. "


43ri
     On page 28 of the printed bill, delete lines 15 to 19 , inclusive, and insert:

    "Section 96. That § 22-33-10 be amended to read as follows:

     22-33-10.   Any person who intentionally and without authorization of the person in charge of a place of confinement, sets fire to, burns, or causes to be burned any material, object, or substance within a structure knowing there is lawfully confined therein any person, is guilty of a Class 4 Class 6 felony. "


43rj
     On page 148, after line 1 of the printed bill, insert:

    "Section 447. That chapter 22-19 be amended by adding thereto a NEW SECTION to read as follows:

     Any person who unlawfully holds or retains another person with any of the following purposes:

             (1)    To hold for ransom or reward, or as a shield or hostage; or
             (2)    To facilitate the commission of any felony or flight thereafter; or
             (3)    To inflict bodily injury on or to terrorize the victim or another; or
             (4)    To interfere with the performance of any governmental or political function; or
             (5)    To take or entice away a child under the age of fourteen years with intent to detain and conceal such child;

is guilty of kidnapping in the second degree. Kidnapping in the second degree is a Class 3 felony, unless the person has inflicted serious bodily injury on the victim in which case it is aggravated kidnapping in the second degree and is a Class 1 felony."

     On page 34 , line 21, after " kidnapping " insert " in the first degree ".

     On page 34 , line 21, after " Kidnapping " insert " in the first degree ".

     On page 34 , line 23, after " kidnapping " insert " in the first degree ".
43rk
     On page 95, line 22 of the printed bill, delete " Class 6 " and insert "Class 5".

43rl
     On page 109, line 19 of the printed bill, delete " due " .

     On page 109 , line 20, delete " to mental disease or defect, " .

43rm
     On page 110, line 8 of the printed bill, overstrike " convicted of a crime " .

43rn
     On page 121 of the printed bill, delete lines 23 and 24 , and insert:

    "Section 381. That § 22-5-7 be amended to read as follows:

     22-5-7.   A morbid propensity to commit prohibited acts existing in the mind of a person who is not shown to have been incapable of knowing the wrongfulness of such acts forms no defense to a prosecution therefor. "


     On page 122 , delete lines 1 and 2 .

43ro
     On page 63 of the printed bill, delete lines 22 to 24 , inclusive, and insert:

    "Section 206.That § 22-11-14 be amended to read as follows:

     22-11-14.   As used in this chapter, the term, judicial officer, includes any referee, arbitrator, judge, hearing officer, or any other person authorized by law to hear or determine a controversy. "


43rah
     On page 42 of the printed bill, delete lines 23 and 24 , and insert:

    "Section 134. That § 22-41-1.3 be amended to read as follows:

     22-41-1.3.   If a any person, who has been accused of a violation of § 22-41-1 or 22-41-1.2, restores or returns the property allegedly obtained as consideration or makes payment of the check before an indictment or information is laid before a magistrate, such fact may be considered in mitigation of punishment. The restoration or return of the property or payment of the check is not a defense to a violation of § 22-41-1 or 22-41-1.2, nor may it be considered by the finder of fact and the costs and expenses provided for in §  57A-3-421 to the holder within thirty days of the mailing or delivery of the notice of dishonor, no criminal prosecution may occur in regard to the check . "

     On page 43 , delete lines 1 to 5 , inclusive.

     On page 44 , line 21, overstrike " five days, or eight " and insert " thirty ".
     On page 148 , after line 1, insert:

    "Section 442. That chapter 22-30A be amended by adding thereto a NEW SECTION to read as follows:

     If the drawer of a check does not pay the fees and costs provided for in §  57A-3-421 and the amount of the check to the holder of the check within thirty days of the mailing of the notice of dishonor, the drawer shall owe to the holder of the check an additional civil penalty equal to twice the amount of the check. The state's attorney may then prosecute the dishonor.

     Section 443. The code counsel shall, pursuant to section 139 of this Act, place section 442 of this Act, between §  22-41-3.1 and §  22-41-3.2 in chapter 22-30A.

     Section 444. That § 22-41-3.2 be amended to read as follows:

     22-41-3.2.   The notice of dishonor required by § 22-41-3.1 shall be in substantially the following form:
Date _______________________________________________________________________
Name of issuer ______________________________________________________________
Bank on which drawn ________________________________________________________
Date of check _______________________________________________________________
Amount of check ____________________________________________________________
Merchant holding Holder of the check ______________________________________________

     You are hereby notified that your check described above has been dishonored and is now being held by the above merchant holder for a period of five thirty days from the above date of the mailing of this notice . Civil liability incurred by a check issuer pursuant to § SDCL 57A-3- 420 is not a defense to a violation of this chapter. If you do not pay the amount of the check and the costs and expenses provided for by SDCL 57A-3-421 within thirty days of the mailing of this notice of dishonor to you, your check will be delivered to the state's attorney for criminal prosecution for theft, and you will be liable to the holder of the check for an additional civil penalty of an amount equal to twice the amount of the check in addition to the amount of the check and the costs and expenses provided for by SDCL 57A-3-421. "

     On page 45 , line 8, after " notice. " insert " However, if the insufficient funds check or no account check is paid by the drawer to the holder, along with the costs and expenses provided for in §  57A-3-421, within the thirty days after the notice is mailed or delivered to the drawer, the check may not be prosecuted. "

     On page 148 , after line 1, insert:

    "Section 445. That chapter 22-30A be amended by adding thereto a NEW SECTION to read as follows:

     The maker, drawer, or issuer is not criminally liable or civilly liable for damages and costs specified in this chapter if:
             (1)    The account contained sufficient funds or credit to cover the check, draft, or order at the time the check, draft, or order was issued, plus all other checks, drafts, and orders on the account then outstanding and unpaid; or

             (2)    The check, draft, or order was not paid because a paycheck, deposited in the account in an amount sufficient to cover the check, draft, or order, was not paid upon presentation; or

             (3)    Funds sufficient to cover the check, draft, or order were garnished, attached, or setoff, and the maker, drawer, or issuer had no notice of such garnishment, attachment, or setoff at the time the check, draft, or order was issued; or

             (4)    The maker of the check, draft, or order was not competent or of full age to enter into a legal contractual obligation at the time the check, draft, or order was issued; or

             (5)    The making of the check, draft, or order was induced by fraud or duress; or

             (6)    The transaction which gave rise to the obligation for which the check, draft, or order was given lacked consideration or was illegal.

     Section 446. That chapter 22-30A be amended by adding thereto a NEW SECTION to read as follows:

     If the same person is the maker, drawer, or issuer of two or more checks, drafts, or orders, such instruments may be combined. An action for their recovery pursuant to this chapter may be brought in any county in which one of the dishonored checks, drafts, or orders were issued or in the county in which the check writer resides. A cause of action under this chapter may be brought in small claims court, if the amount of the demand does not exceed the jurisdiction of that court, or in any other appropriate court."

43rb
     On page 49, line 10 of the printed bill, after " when " insert " , including an unborn child ".

     On page 50 , line 6, after " person " insert " , including an unborn child ".

     On page 50 , line 20, after " person " insert " , including an unborn child, ".

     On page 50 , line 23, after " death, " insert " including an unborn child, ".

     On page 51 , line 1, after " death, " insert " including an unborn child, ".

43rh
     On page 26, line 7 of the printed bill, delete " specific " .

     On page 26 , line 12, delete " specific " .

43rac
     On page 96, line 10 of the printed bill, remove the overstrikes from " Class 5 " .
     On page 96 , line 10, delete " Class 6 " .

43rad
     On page 46, line 12 of the printed bill, delete " January 1, 2006 " and insert "July 1, 2006".

43rae
     On page 142, line 9 of the printed bill, after " counsel " insert ", experts,".

     On page 142 , line 14, after " conviction " insert "or other sentencing document".

     And that as so amended said bill do pass.

Respectfully submitted,
Gene G. Abdallah, Chair

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration SB  170 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration SB 184 and returns the same with the recommendation that said bill be amended as follows:

184za
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. There is hereby created within the Department of Education a program to provide state aid to school districts with critical need for capital construction.

     Section 2. As used in this Act, a school district with critical need for capital construction is one which:

             (1)    Has an average daily membership as defined in subdivision 13-13-10.1(1) per square mile of 0.6 or less;

             (2)    Has a geographical area of more than five hundred square miles;

             (3)    Has an emergency need, be it through catastrophe or condemnation by the state fire marshal or designee for structural concerns, for replacement of an academic building; and

             (4)    Levies ad valorem taxes at or exceeding the levels prescribed in §  10-12-42 and still does not have the ability to raise local effort sufficient enough to build or acquire adequate, permanent classroom building space needed to replace lost space or buildings.

     Section 3. Upon receipt of a school district's application for aid pursuant to this Act, the secretary of the department shall evaluate the district's request and plan for permanent construction. State aid for critical capital construction will be calculated by the secretary as the difference between the cost of the approved construction project and the district's local effort ability for capital construction.

     Section 4. The entitlement provided by sections 1 to 3, inclusive, of this Act, shall be paid by the Department of Education out of any money appropriated by the Legislature for the purposes of this Act.

     Section 5. The secretary of the Department of Education shall promulgate rules, pursuant to chapter 1-26, to establish criteria for: approval of proposed replacement buildings; calculation of local construction effort; notification and acceptance of requests for aid; and review of projects upon completion."


184ca
     On the previously adopted amendment (184za), section 2, delete subdivision (4) and insert:

             "(4)    Levies taxes at the maximum levels prescribed in §  13-16-7 and still does not have the ability to raise local effort sufficient enough to build or acquire adequate, permanent classroom building space needed to replace lost space or buildings."

184zta
     On page 1, line 1 of the printed bill, delete " make an appropriation to " and insert "establish a program in".

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Education respectfully reports that it has had under consideration SB  140 and 161 which were deferred to the 41st Legislative Day.

Respectfully submitted,
Ed Olson, Chair

Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration HB 1060, 1119, and 1171 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration HB 1034 and 1041 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 Transportation respectfully reports that it has had under consideration SB 119 and returns the same with the recommendation that said bill be amended as follows:

119oa
     On the printed bill, delete everything after the enacting clause and insert:

    "Section 1. That § 44-11-1 be amended to read as follows:

     44-11-1.   If a person, at the request or consent of the owner or person lawfully in possession, furnishes any services, skill, labor, materials, parts, accessories, supplies, or facilities for the alteration, repair, replacement of parts, storage, keeping, maintenance, or preservation of any personal property, such person shall have a lien thereon, dependent on possession, or notice as hereinafter provided by this chapter on such the property to the extent of a reasonable charge. However, if there is an agreed price, the lien is to the extent of such agreed price.

     Personal property left for repair at a place of business in this state shall be considered abandoned and may be sold if the property is unclaimed by its owner for a period of ninety days after written notice of the intent to sell the property is given to the owner at his the owner's last known address by certified mail. Such The sale is subject to liens, mortgages, and other creditors' interest properly filed or perfected before the date that the personal property came into the possession of the place of business. Such The abandoned personal property shall be sold under the provisions of chapter 21-54. This section does not apply to any motor vehicle as defined by §  32-3-1.

     Section 2. That chapter 32-3 be amended by adding thereto a NEW SECTION to read as follows:

     For purposes of this chapter, the department shall provide a person that has possession of a vehicle as the result of an unpaid repair bill with the last known name and address of the record holder of title and any readily identifiable lien holders free of charge.

     Section 3. That chapter 32-3 be amended by adding thereto a NEW SECTION to read as follows:

     A person may apply for a title on any motor vehicle that is left unclaimed, as the result of an unpaid repair bill, by its owner or person lawfully in possession of, on private property for a period of thirty days after written notice of intent to apply for a title is given to the owner at the owner's last known address and to any readily identifiable lienholder by certified mail. The notice shall set forth the location where the motor vehicle is being kept, the circumstances surrounding acquisition of the vehicle, the year, make, model, and serial number of the motor vehicle, and shall inform the owner and any lienholder of the right to reclaim the vehicle as provided by section 4 of this Act. The notice shall be on a form provided by the department.

     If it is impossible to determine with reasonable certainty the identity and address of the registered owner and any lienholder, a notice shall be published once in a newspaper of general circulation in the area where the motor vehicle was left for repair. Published notices may be grouped together for convenience and economy.

     Section 4. That chapter 32-3 be amended by adding thereto a NEW SECTION to read as follows:

     Title to any motor vehicle shall vest with the person to whom the unpaid repair bill is payable and who has complied with the provisions of this chapter in notifying the owner and all lienholders of their rights to reclaim the motor vehicle after a period of thirty days from the date to which notice was sent to the owner and all lienholders. The owner or the lienholder may reclaim the motor vehicle. The owner or lienholder shall notify the department and the repair facility within thirty days of receipt of the notice of their intent to reclaim the motor vehicle. If the owner or lienholder fails to claim and remove the motor vehicle within thirty days after mailing of the notice of intent to reclaim the vehicle, title to the motor vehicle is irrevocably vested in the person to whom the repair bill is payable and who has complied with the provisions of this chapter.

     The vehicle shall be sold and any excess moneys above settlement of the debt shall be forwarded to the owner or any lienholder. If the owner and any lienholder are unidentifiable or not able to be contacted, the excess moneys shall be sent to the state treasurer and treated as unclaimed property pursuant to chapter 43-41B."

119otb
     On page 1, line 1 of the printed bill, delete everything after " to " and insert "authorize the transfer of a motor vehicle title to satisfy an unpaid motor vehicle repair bill under certain conditions."

     On page 1 , delete line 2 .

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration HB 1111 and returns the same with the recommendation that said bill be amended as follows:

1111fg
     On page 5, line 15 of the House Transportation Committee engrossed bill, delete " shall show " and insert "shows".
     On page 6 , line 15, overstrike " a record " and insert " books, records, or files ".

     On page 6 , line 24, after " manufactured " insert " home ".

     On page 7 , line 10, after " manufactured " insert "home".

     On page 7 , line 16, delete " shall show " and insert "shows".

     On page 9 , line 19, delete " shall show " and insert "shows".

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Transportation respectfully reports that it has had under consideration SB 219 which was deferred to the 41st Legislative Day.

Respectfully submitted,
Dick Kelly, Chair

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration HB  1038 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 Commerce respectfully reports that it has had under consideration HB 1089 and returns the same with the recommendation that said bill be amended as follows:

1089jb
     On page 7 of the House engrossed bill, between lines 11 and 12, insert:

    "(2)    As part of a licensed practice pursuant to chapter 36-14 or 36-15, if the licensee is performing within the scope of the licensed practice and the licensee does not hold himself or herself out to be a massage therapist or to be engaged in the practice of massage therapy;".


     On page 7 , line 12, delete " (2) " and insert "(3)".

     On page 7 , line 13, delete " (3) " and insert "(4)".

     On page 7 , line 15, delete " (4) " and insert "(5)".
     On page 7 , line 17, delete " (5) " and insert "(6)".

     And that as so amended said bill do pass.

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration SB 179 and returns the same with the recommendation that said bill be amended as follows:

179jb
     On page 2, line 11 of the printed bill, after " modalities " insert " limited to the upper extremities ".

     On page 4 , delete lines 18 to 24 , inclusive, and insert:

    "(6)    Certification: In order to apply physical agent modalities as defined in §  36-3-1, an         occupational therapist or occupational therapist assistant shall be qualified pursuant         to this subdivision, as follows:

             (a)    Has successfully completed twenty-five hours of American Occupational Therapy Association or American Physical Therapy Association approved education on the physical agent modality and completed a supervised mentorship to include five case studies on each class of modality to be incorporated into patient care;

             (b)    Is certified as a hand therapist by the Hand Therapy Certification commission or other equivalent entity recognized by the board; or

             (c)    Has completed education during a basic occupational therapy educational program that included demonstration of competencies on each class of the physical agent modalities.

                 A supervising therapist or mentor may be a physical therapist, a certified hand therapist, or an occupational therapist who has completed a supervised mentorship and has five years of clinical experience utilizing each class of physical agent modalities; or an occupational therapist who has graduated from an occupational therapy program whose curriculum includes physical agent modality education."

     On page 5 , delete lines 1 to 7 , inclusive.

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

Also MR. PRESIDENT:

    The Committee on Commerce respectfully reports that it has had under consideration SB  192 and 199 which were deferred to the 41st Legislative Day.

Respectfully submitted,
Royal "Mac" McCracken, Chair

Also MR. PRESIDENT:

     The Committee on Legislative Procedure respectfully reports that SB 57, 74, and 92 were delivered to his Excellency, the Governor, for his approval at 9:30 a.m., February 10, 2005.

Respectfully submitted,
Lee Schoenbeck, Chair

REPORT OF CONFERENCE COMMITTEE


MR. PRESIDENT:

     The Conference Committee respectfully reports that it has considered SB 13 and the amendments thereto made by the House, and the disagreement of the two houses thereon, and recommends that the Senate do concur with the House amendments.

Respectfully submitted,                         Respectfully submitted,
Lou Sebert                                    Dave Knudson
House Committee Chair                        Senate Committee Chair

MESSAGE FROM THE HOUSE



MR. PRESIDENT:

    I have the honor to transmit herewith HB 1128, 1181, 1188, 1190, 1194, 1202, 1209, and 1212 which have passed the House and your favorable consideration is respectfully requested.

Respectfully,
Karen Gerdes, Chief Clerk

MOTIONS AND RESOLUTIONS


     Sen. Bogue moved that when we adjourn today, we adjourn to convene at 1:00 p.m. on Friday, February 11, the 24th legislative day.

     Which motion prevailed.

     Sen. Knudson moved that the Senate do concur in House amendments to SB 55.

     The question being on Sen. Knudson's motion that the Senate do concur in House amendments to SB 55.

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

     So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and the amendments were concurred in.

CONSIDERATION OF REPORTS OF COMMITTEES


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

     Health and Human Services on SB 168 as found on page 403 of the Senate Journal ; also

     State Affairs on SB 177 as found on page 400 of the Senate Journal ; also

     Commerce on SB 186 as found on page 402 of the Senate Journal ; also

     State Affairs on SB 218 as found on page 401 of the Senate Journal be adopted.

     Which motion prevailed and the reports were adopted.

SECOND READING OF CONSENT CALENDAR ITEMS


     Sen. Kloucek requested that HB 1083 be removed from the Consent Calendar.

     SB 51:   FOR AN ACT ENTITLED, An Act to   revise certain provisions regarding medicare supplement policies.

     Was read the second time.

     The question being "Shall SB 51 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

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

     Was read the second time.

     The question being "Shall SB 180 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

     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 209:   FOR AN ACT ENTITLED, An Act to   revise the number of dentists eligible to participate in the dental tuition reimbursement program.

     Was read the second time.

     The question being "Shall SB 209 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

     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 1074:   FOR AN ACT ENTITLED, An Act to   revise certain provisions relating to the maximum term of promissory notes issued to municipalities.

     Was read the second time.

     The question being "Shall HB 1074 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

     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 1084:   FOR AN ACT ENTITLED, An Act to   revise the circumstances for when special elections for home rule charters shall be called.

     Was read the second time.

     The question being "Shall HB 1084 pass as amended?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

     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 1126:   FOR AN ACT ENTITLED, An Act to   remove certain restrictions that apply to the unexpended balances of the unemployment insurance compensation fund established by political subdivisions.

     Was read the second time.

     The question being "Shall HB 1126 pass?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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


     Excused:
Duenwald; Gant

     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.

SECOND READING OF SENATE BILLS AND JOINT RESOLUTIONS


     SB 114:   FOR AN ACT ENTITLED, An Act to   establish a refundable checkoff on pulse crops.

     Was read the second time.

     Sen. Bogue moved that SB 114 be deferred to Monday, February 14, the 25th legislative day.

     Which motion prevailed.

     SB 163:   FOR AN ACT ENTITLED, An Act to   authorize certain multiple employer trusts.

     Was read the second time.

     The question being "Shall SB 163 pass as amended?"

     And the roll being called:

     Yeas 33, Nays 0, Excused 2, Absent 0

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

     Excused:
Duenwald; Gant

     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 207:   FOR AN ACT ENTITLED, An Act to   revise certain mobile and manufactured home provisions related to taxation, fees, titling, and penalties.

     Was read the second time.

     The question being "Shall SB 207 pass as amended?"

     And the roll being called:

     Yeas 32, Nays 0, Excused 3, Absent 0

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

     Excused:
Duenwald; Gant; Kloucek

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

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS


     HB 1128:   FOR AN ACT ENTITLED, An Act to   revise the definition of agricultural purposes as it relates to sales tax.

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

     HB 1181:   FOR AN ACT ENTITLED, An Act to   exempt certain amateur sports officials from sales tax.

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

     HB 1188:   FOR AN ACT ENTITLED, An Act to   revise certain provisions regarding amounts payable under reinsurance contracts in liquidation proceedings of insurers.

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

     HB 1190:   FOR AN ACT ENTITLED, An Act to   provide for recognition of certain valid nonresident permits to carry a concealed pistol.

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

     HB 1194:   FOR AN ACT ENTITLED, An Act to   require notification to certain retail licensees of prohibited alcohol sales to persons below the age of twenty-one prior to any subsequent violation.

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

     HB 1202:   FOR AN ACT ENTITLED, An Act to   provide for a salvage title.

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

     HB 1209:   FOR AN ACT ENTITLED, An Act to   provide for limited confidentiality of certain firearms information.

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

     HB 1212:   FOR AN ACT ENTITLED, An Act to   revise certain provisions relating to professional and occupational licensing boards.

     Was read the first time and referred to the Committee on State Affairs.

SIGNING OF BILLS


     The President publicly read the title to

     HB 1002: FOR AN ACT ENTITLED, An Act to  revise the requirements for determining whether dwellings are eligible to be classified as owner-occupied single-family dwellings.

     HB 1011: FOR AN ACT ENTITLED, An Act to  make certain provisions for a program of recoveries and fraud investigations in the Department of Social Services.

     HB 1012: FOR AN ACT ENTITLED, An Act to  establish certain penalties for the unauthorized acquisition or transfer of food stamp benefits.

     HB 1080: FOR AN ACT ENTITLED, An Act to  provide for notification to the petitioner when an ex parte protection order is served.

     HB 1085: FOR AN ACT ENTITLED, An Act to  prohibit certain payments and receipt of payments for registering and assisting voters and to establish certain penalties.

     HB 1087: FOR AN ACT ENTITLED, An Act to  require certain voter registration forms to be filed within an established time frame and to establish certain penalties.

     HB 1105: FOR AN ACT ENTITLED, An Act to  revise the definition of domestic abuse.


     HB 1162: FOR AN ACT ENTITLED, An Act to  revise certain provisions relating to cardiopulmonary resuscitation directives.

     HB 1196: FOR AN ACT ENTITLED, An Act to  establish a vaccination program for first responders.

     And signed the same in the presence of the Senate.

     There being no objection, the Senate reverted to Order of Business No. 7.

MESSAGE FROM THE HOUSE


MR. PRESIDENT:

    I have the honor to inform your honorable body that SB 122 was lost on second reading and final passage.

Respectfully,
Karen Gerdes, Chief Clerk

     Sen. Smidt moved that the Senate do now adjourn, which motion prevailed and at 2:43 p.m. the Senate adjourned.

Patricia Adam, Secretary