Senate Journal 3/1/2016 02:00 PM

JOURNAL OF THE SENATE

NINETY-FIRST SESSION

THIRTIETH DAY

STATE OF SOUTH DAKOTA
Senate Chamber, Pierre
Tuesday, March 1, 2016

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

The prayer was offered by the Chaplain, Pastor John Fette, followed by the Pledge of Allegiance led by Senate page Shale Kramme.

Roll Call: All members present.

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-ninth 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,

Gary Cammack, Chair

Which motion prevailed.

REPORTS OF STANDING COMMITTEES

MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that SB 66 and 138 were delivered to his Excellency, the Governor, for his approval at 10:00 a.m., March 1, 2016.

Also MR. PRESIDENT:

The Committee on Legislative Procedure respectfully reports that the Office of Engrossing and Enrolling has carefully compared SB 16, 23, 34, 53, 59, 71, 73, and 75 and finds the same correctly enrolled.

Respectfully submitted,

Gary Cammack, Chair

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1125 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Judiciary respectfully reports that it has had under consideration HB 1135 and 1138 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 Judiciary respectfully reports that it has had under consideration HCR 1009 and HB 1129 which were deferred to the 41^st Legislative Day.

Respectfully submitted,
Craig Tieszen, Chair

Also MR. PRESIDENT:

The Committee on Education respectfully reports that it has had under consideration HB 1096 and 1169 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 Education respectfully reports that it has had under consideration HB 1198 which was deferred to the 41^st Legislative Day.

Respectfully submitted,
Deb Soholt, Chair

Also MR. PRESIDENT:

The Joint Committee on Appropriations respectfully reports that it has had under consideration SB 43, which was removed from the table, and 92 and returns the same with the recommendation that said bills do pass.

Also MR. PRESIDENT:

The Joint Committee on Appropriations respectfully reports that it has had under consideration SB 84 which was tabled.

Respectfully submitted,
Deb Peters, Co-Chair

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1075 and returns the same with the recommendation that said bill do pass.

Also MR. PRESIDENT:

The Committee on Agriculture and Natural Resources respectfully reports that it has had under consideration HB 1094 and returns the same with the recommendation that said bill be amended as follows:

1094na

On page 2 of the House Agriculture and Natural Resources Committee engrossed bill, delete lines 12 to 16, inclusive, and insert:

" Section 4. That chapter 38-19 be amended by adding a NEW SECTION to read:

From each fee collected pursuant to § 38-19-10, fifty cents shall be deposited into the nutrient research and education fund created in section 7 of this Act. The nutrient and education fund shall be disbursed as follows:

(1) The Agriculture Experiment Station may use an amount not to exceed five percent of the revenue deposited in the fund for administrative expenses necessary to carry out the functions of this Act;

(2) The balance of the fund shall be used for fertilizer-related, nutrient-related, and water quality-related research and education purposes in conjunction with the Nutrient Research and Education Council; and

(3) Beginning in fiscal year 2020, a minimum of ten percent of the fund shall be used to support water quality projects.".

On page 2, line 22, delete everything after "association, and" and insert "one farmer member of the State Conservation Commission".

On page 2, line 23, delete everything before "." and delete "four" and insert "five".

On page 2, line 24, after "organizations," insert "one representing the director of the South Dakota Agricultural Experiment Station,".

On page 4, after line 2, insert:

" Section 7. That chapter 38-19 be amended by adding a NEW SECTION to read:

There is hereby created a nutrient research and education fund for the purpose of advancing fertilizer-related, nutrient-related, and water quality-related purposes as provided in section 4 of this Act. Any money in the nutrient research and education fund is continuously appropriated to the Agriculture Experiment Station. The state may accept and expend for the purposes of this Act funds obtained from appropriations or any other source. Interest earned on money in the fund shall be deposited into the fund. Any money deposited into and distributed from the fund shall be set forth in an informational budget as described in § 4-7-7.2.".

And that as so amended said bill do pass.

Respectfully submitted,
Gary Cammack, Chair

MESSAGES FROM THE HOUSE

MR. PRESIDENT:

I have the honor to return herewith SB 17 and 132 which have been amended by the House and your concurrence in the amendments is respectfully requested.

Also MR. PRESIDENT:

I have the honor to return herewith SB 16, 23, 34, 53, 59, 71, 73, and 75 which have passed the House without change.

Also MR. PRESIDENT:

I have the honor to transmit herewith HB 1045 which has passed the House and your favorable consideration is respectfully requested.

Also MR. PRESIDENT:

I have the honor to transmit herewith HCR 1016 which has been adopted by the House and your concurrence is respectfully requested.

Respectfully,
Arlene Kvislen, Chief Clerk

MOTIONS AND RESOLUTIONS

HCR 1015: A CONCURRENT RESOLUTION, Commending Taiwan's presidential election; supporting Taiwan's efforts to secure entry to the Trans-Pacific Partnership (TPP) and the signing of the Free Trade Agreement (FTA) and the Bilateral Investment Agreement (BIA) with the United States; and reaffirming support for increasing Taiwan's international profile and for strengthening and expanding sister-state ties between South Dakota and Taiwan.

Sen. Tieszen moved that the Senate do concur in HCR 1015 as found on page 660 of the House Journal.

The question being on Sen. Tieszen's motion that HCR 1015 be concurred in.

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1015 was concurred in.

HCR 1017: A CONCURRENT RESOLUTION, Commending the nation of Israel for its cordial and mutually beneficial relationship with the United States and with the State of South Dakota.

Sen. Greenfield (Brock) moved that the Senate do concur in HCR 1017 as found on page 662 of the House Journal.

The question being on Sen. Greenfield (Brock)'s motion that HCR 1017 be concurred in.

And the roll being called:

Yeas 34, Nays 0, Excused 1, Absent 0

Yeas:
Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Greenfield (Brock); Haggar (Jenna); Haverly; Heineman (Phyllis); Heinert; Holien; Hunhoff (Bernie); Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

Excused:
Bradford

So the motion having received an affirmative vote of a majority of the members-elect, the President declared the motion carried and HCR 1017 was concurred in.

HCR 1016: A CONCURRENT RESOLUTION, Expressing and encouraging support for the continued use of country-of-origin labels on meat products sold to consumers.

Was read the first time, the President waived the referral to committee, and placed HCR 1016 on the calendar of Wednesday, March 2^nd, the 31^st legislative day.

Sen. Brown moved that SB 96 and 47 be deferred to Wednesday, March 2^nd, the 31^st legislative day.

Which motion prevailed.

CONSIDERATION OF REPORTS OF COMMITTEES

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

State Affairs on HB 1140 as found on page 467 of the Senate Journal; also

State Affairs on HB 1238 as found on page 468 of the Senate Journal; also

Joint Committee on Appropriations on SB 49 as found on page 468 of the Senate Journal; also

Joint Committee on Appropriations on SB 67 as found on page 471 of the Senate Journal; also

Joint Committee on Appropriations on SB 46 as found on page 473 of the Senate Journal be adopted.

Which motion prevailed.

FIRST READING OF HOUSE BILLS AND JOINT RESOLUTIONS

HB 1045: FOR AN ACT ENTITLED, An Act to revise certain reversion provisions relating to the General Appropriations Act for fiscal year 2013.

Was read the first time and the President Pro tempore waived the referral to the standing committee pursuant to Joint Rule 6D-1.

SECOND READING OF CONSENT CALENDAR ITEMS

HB 1188: FOR AN ACT ENTITLED, An Act to exempt certain operations of school buses from commercial motor vehicle fees.

Was read the second time.

The question being "Shall HB 1188 pass?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 1230: FOR AN ACT ENTITLED, An Act to require lights on certain animal-drawn vehicles while operating on a highway.

Was read the second time.

The question being "Shall HB 1230 pass as amended?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 1051: FOR AN ACT ENTITLED, An Act to prohibit the use of certain automated sales suppression devices and to provide penalties for their use.

Was read the second time.

The question being "Shall HB 1051 pass?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 1214: FOR AN ACT ENTITLED, An Act to regulate conflicts of interest for authority, board, or commission members.

Was read the second time.

The question being "Shall HB 1214 pass as amended?"

And the roll being called:

Yeas 35, Nays 0, Excused 0, Absent 0

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 HOUSE BILLS AND JOINT RESOLUTIONS

HB 1182: FOR AN ACT ENTITLED, An Act to increase the state sales tax, the state use tax, the excise tax on farm machinery, and amusement device tax for the purpose of increasing education funding and reducing property taxes, to provide for certain school district reporting and penalties, and to declare an emergency.

Was read the second time.

1182yc

Sen. Novstrup moved that HB 1182 be amended as follows:

On page 1, line 8, of the House engrossed bill, delete "one-half" and insert "one-fourth".

On page 1, line 12, delete "one-half" and insert "one-fourth".

On page 2, line 13, delete "one-half" and insert "one-fourth".

On page 2, line 18, delete "one-half" and insert "one-fourth".

On page 2, line 24, delete "one-" and insert "one-fourth".

On page 3, line 1, delete "half".

On page 3, line 17, delete "one-half" and insert "one-fourth".

On page 4, line 3, delete "one-half" and insert "one-fourth".

On page 4, line 7, delete "one-half" and insert "one-fourth".

On page 4, line 13, delete "one-half" and insert "one-fourth".

On page 5, line 5, delete "one-half" and insert "one-fourth".

On page 5, line 10, delete "one-half" and insert "one-fourth".

On page 5, line 17, delete "one-" and insert "one-fourth".

On page 5, line 18, delete "half".

On page 6, line 10, delete "one-half" and insert "one-fourth".

On page 6, line 13, delete "one-half" and insert "one-fourth".

On page 6, line 23, delete "sixty-three" and insert "ninety-four".

On page 6, line 24, delete everything after "districts" .

On page 7, line 1, delete everything before "and" .

On page 7, line 1, delete "three" and insert "six".

On page 7, between lines 18 and 19, insert:

The tax imposed by § 10-45-2 on food items, as defined in § 10-45-1 and not including alcohol or tobacco products, shall be additionally reduced at the rate specified in this section, beginning after the first sixty million dollars of net revenue is collected and remitted under this section. The tax imposed on food items may be reduced to below four percent.".

On page 10, between lines 3 and 4, insert:

" Section 23. That § 10-45-1 be amended to read:

10-45-1. Terms used in this chapter mean:

(1) "Agricultural purposes," the producing, raising, growing, or harvesting of food or fiber upon agricultural land, including dairy products, livestock, and crops. The services of custom harvesters, chemical applicators, fertilizer spreaders, hay grinders, and cultivators are considered agricultural purposes;

(1A) "Alcoholic beverages," any beverage that is suitable for human consumption and contains one-half of one percent or more of alcohol by volume;

(2) "Business," any activity engaged in by any person or caused to be engaged in by such person with the object of gain, benefit, or advantage, either direct or indirect;

(3) "Candy," any preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts or other ingredients or flavorings in the form of bars, drops, or pieces. The term, candy, does not include any preparation containing flour ~~and does not~~. No candy may require refrigeration;

(4) "Delivery charges," charges by the retailer for preparation and delivery to a location designated by the purchaser of tangible personal property, any product transferred electronically, or services including transportation, shipping, postage, handling, crating, and packing. The term does not include postage for direct mail;

(4A) "Dietary supplement," any product, other than tobacco, intended to supplement the diet that:

(a) Contains one or more of the following dietary ingredients:

(i) A vitamin;

(ii) A mineral;

(iii) An herb or other botanical;

(iv) An amino acid;

(v) A dietary substance for use by humans to supplement the diet by increasing the total dietary intake; or

(vi) A concentrate, metabolite, constituent, extract, or combination of any ingredient described in this subsection;

(b) Is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or if not intended for ingestion in such a form, is not represented as conventional food and is not represented for use as a sole item of a meal or of the diet; and

(c) Is required to be labeled as a dietary supplement, identifiable by the supplemental facts box, found on the label and as required pursuant to 21 C.F.R. § 101.36 as of January 1, 2016;

(5) "Food" and "food ingredient," any substance, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that is sold for ingestion or chewing by humans and is consumed for its taste or nutritional value. The term, food, does not include any alcoholic ~~beverages~~ beverage, tobacco, soft drink, candy, dietary supplement, food sold through a vending machine, or prepared food;

(5A) "Food sold through a vending machine," any food dispensed from a machine or other mechanical device that accepts payment;

(6) Repealed by SL 2007, ch 56, § 1.

(7) "Person," any individual, firm, copartnership, joint adventure, association, limited liability company, corporation, municipal corporation, estate, trust, business trust, receiver, the State of South Dakota and its political subdivisions, or any group or combination acting as a unit;

(8) "Prepared food," any food sold in a heated state or heated by the seller; 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;

(8A) "Product transferred electronically," any product obtained by the purchaser by means other than tangible storage media. A product transferred electronically does not include any intangible such as a patent, stock, bond, goodwill, trademark, franchise, or copyright.

(9) "Relief agency," the state, and county, municipality or district thereof, or any agency engaged in actual relief work;

(10) "Retail sale" or "sale at retail,' ' any sale, lease, or rental for any purpose other than for resale, sublease, or subrent;

(11) "Retailer," any person engaged in the business of selling tangible goods, wares, or merchandise at retail, or the furnishing of gas, electricity, water, and communication service, and tickets or admissions to places of amusement and athletic events as provided in this chapter, and the sale at retail of products transferred electronically. The term also includes any person subject to the tax imposed by §§ 10-45-4 and 10-45-5. The isolated or occasional sale of tangible personal property or any product transferred electronically at retail by a person who does not hold himself or herself out as engaging in the business of selling such tangible personal property or products transferred electronically at retail does not constitute such person a retailer;

(12) "Sale," any transfer, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for a consideration;

(13) "Soft drinks," any nonalcoholic beverages that contain natural or artificial sweeteners. The term, soft drinks, does not include any beverage that contains milk or milk products, soy, rice of similar milk substitutes, or greater than fifty percent of vegetable or fruit juice by volume;

(14) "Tangible personal property," personal property that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses. The term includes electricity, water, gas, steam, and prewritten computer software;

(15) "Tobacco," any cigarettes, cigars, chewing or pipe tobacco, or any other item that contains tobacco. ".

1182xa

Sen. Novstrup moved that his amendment to HB 1182 be amended as follows:

On the pending amendment (1182yc), in every place that "one-fourth" appears, delete "one-fourth" and insert "three-tenths".

Sen. Novstrup requested a roll call vote on the motion to amend the amendment.

Which request was supported.

And the roll being called:

Yeas 13, Nays 22, Excused 0, Absent 0

Yeas:
Curd; Ewing; Fiegen; Greenfield (Brock); Haggar (Jenna); Heineman (Phyllis); Holien; Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Rampelberg

Nays:
Bradford; Brown; Buhl O'Donnell; Cammack; Frerichs; Haverly; Heinert; Hunhoff (Bernie); Otten (Ernie); Parsley; Peters; Peterson (Jim); Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Van Gerpen; Vehle; White

So the motion not having received an affirmative vote of a majority of the members-elect, the President declared the motion lost.

Sen. Novstrup requested a roll call vote on the motion to amend.

Which request was supported.

The question being on Sen. Novstrup's motion that HB 1182 be amended.

And the roll being called:

Yeas 13, Nays 22, Excused 0, Absent 0

Yeas:
Curd; Ewing; Fiegen; Greenfield (Brock); Haggar (Jenna); Heineman (Phyllis); Holien; Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Rampelberg

So the motion not having received an affirmative vote of a majority of the members-elect, the President declared the motion lost.

The question being "Shall HB 1182 pass as amended?"

And the roll being called:

Yeas 25, Nays 10, Excused 0, Absent 0

Yeas:
Bradford; Brown; Buhl O'Donnell; Cammack; Curd; Ewing; Fiegen; Frerichs; Haverly; Heinert; Hunhoff (Bernie); Otten (Ernie); Parsley; Peters; Peterson (Jim); Rampelberg; Rusch; Shorma; Soholt; Solano; Sutton; Tidemann; Tieszen; Vehle; White

Nays:
Greenfield (Brock); Haggar (Jenna); Heineman (Phyllis); Holien; Jensen (Phil); Monroe; Novstrup (David); Olson; Omdahl; Van Gerpen

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.

Sen. Brown moved that the balance of the calendar including HB 1005, 1079, 1143, 1144, 1145, 1157, 1177, and 1204 be deferred to Wednesday, March 2^nd, the 31^st legislative day.

Which motion prevailed.

SIGNING OF BILLS

The President publicly read the title to

SB 16: FOR AN ACT ENTITLED, An Act to establish a fee for a nursery license and to increase fees for nursery inspection.

SB 23: FOR AN ACT ENTITLED, An Act to extend the time allowed for conditional land exchanges.

SB 34: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the chemical testing of commercial drivers.

SB 53: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the bank franchise tax.

SB 59: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the application of the special annual road funding levy.

SB 71: FOR AN ACT ENTITLED, An Act to revise the provisions regarding the issuance of small game licenses and fishing licenses to certain veterans at reduced fees and to revise certain provisions regarding special pheasant hunts for disabled veterans.

SB 73: FOR AN ACT ENTITLED, An Act to clarify certain provisions regarding open meetings.

SB 75: FOR AN ACT ENTITLED, An Act to establish a grant program for adult community residential services designed to reduce the risk of recidivism, to provide a report to the Legislature, to make an appropriation therefor, and declare an emergency.

HB 1007: FOR AN ACT ENTITLED, An Act to make an appropriation to revise and update the data and methods used to determine the agricultural land production capacity and to declare an emergency.

HB 1024: FOR AN ACT ENTITLED, An Act to make an appropriation for the maintenance and repair of state owned dams and to declare an emergency.

HB 1047: FOR AN ACT ENTITLED, An Act to make an appropriation for the payment of extraordinary litigation expenses and to declare an emergency.

HB 1065: FOR AN ACT ENTITLED, An Act to designate the Civilian Conservation Corps Museum of South Dakota in Hill City as the official Civilian Conservation Corps Museum of South Dakota.

HB 1083: FOR AN ACT ENTITLED, An Act to change the taxation method used in the sale of certain off-road vehicles and require that the sale of these vehicles be by licensed vehicle dealers.

HB 1092: FOR AN ACT ENTITLED, An Act to revise requirements for local permits for the sale and consumption of alcoholic beverages on certain property abutting licensed establishments.

HB 1095: FOR AN ACT ENTITLED, An Act to revise certain allowable time periods regarding the transfer of vehicle ownership.

HB 1104: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the practice of dental hygiene.

HB 1121: FOR AN ACT ENTITLED, An Act to revise certain provisions concerning the regulation of vehicle dealers.

HB 1123: FOR AN ACT ENTITLED, An Act to require the Department of Health to include certain information regarding the inspection of an abortion facility on the department's website.

HB 1164: FOR AN ACT ENTITLED, An Act to provide for a special interest motor vehicle license plate for certain vehicles under certain conditions.

HB 1179: FOR AN ACT ENTITLED, An Act to revise certain provisions regarding the exemption of certain boats from the excise tax on large boats.

And signed the same in the presence of the Senate.

Sen. Cammack moved that the Senate do now adjourn, which motion prevailed and at 4:52 p.m. the Senate adjourned.

Kay Johnson, Secretary