Call to Order and Roll Call
The 7th meeting of the Interim Joint Committee on Licensing and Occupations was held on Thursday, December 15, 2016, at 10:00 AM, in Room 129 of the Capitol Annex. Senator John Schickel, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator John Schickel, Co-Chair; Representative Dennis Keene, Co-Chair; Senators Tom Buford, Julian M. Carroll, Denise Harper Angel, Jimmy Higdon, Ray S. Jones II, Christian McDaniel, Dan "Malano" Seum, and Damon Thayer; Representatives Tom Burch, Denver Butler, Larry Clark, Jeffery Donohue, Daniel Elliott, Joni L. Jenkins, Adam Koenig, Reginald Meeks, Jerry T. Miller, David Osborne, Sal Santoro, Arnold Simpson, Diane St. Onge, and Susan Westrom.
Guests: Senator Brandon Smith, Mike DeFrancisco, NITV Federal Services; Kristin Meadors Baldwin, Director of Governmental Affairs, Kentucky Distillers Association; Christy Trout, Commissioner, Carol Beth Martin, Malt Beverage Administrator, Trina Summers, Distilled Spirits Administrator and Steve Humphress, General Counsel, Department of Alcoholic Beverage Control; Paula Schenk, Executive Director, Kentucky Board of Nursing, Rebecca Fotsch, National Council of State Boards of Nursing (NCSBN).
LRC Staff: Tom Hewlett, Bryce Amburgey, Jasmine Williams, Michel Sanderson, and Susan Cunningham.
Approval of minutes from the October 14, 2016 meeting as well as the minutes from the November 28, 2016 meeting.
A motion was made by Senator Buford, seconded by Representative Keene, to approve the minutes from the October 14, 2016 meeting and the November 28, 2016 meeting. The motion was adopted by voice vote.
Alternatives to Detection of Deception Devices
Senator Brandon Smith said that he has been approached by a constituent about an alternative method to using a polygraph as a lie detector. Kentucky is one of the few states that still uses only the polygraph system.
Mike DeFrancisco, board member of the National Association of Computer Voice Stress Analysts, is currently employed as a fire and explosion investigator in the city of Columbus, Ohio, as well as deputy sheriff in Madison County, Ohio. He told the committee he regularly used the CVSA to solve crimes related to fires and explosions and other investigations. The use of this system has changed the case closure and conviction rates. The ease of use and the instant verification that a person is being truthful or deceitful is paramount in solving crimes. Kentucky is a polygraph only state. By enabling Kentucky to use the CVSA system, Kentucky law enforcement would be equipped with an additional tool to fight crime and protect citizens more efficiently. He said the CVSA is a truth verification detection deception device that is in use in each of Kentucky’s contiguous states. The CVSA is also currently used by federal probation officers in Lexington and Louisville. The CVSA is used in 20 countries around the world to assist in fighting crime and terrorism. Some countries receive funding from the United States State Department to train and certify examiners in their countries.
The CVSA is a laptop computer with proprietary software installed to detect truthful and deceptive responses. This system was developed in 1957. It was discovered that when someone was not telling the truth there are micro tremors in their voice. The technology has been expanded through the years. In 2003 the CVSA was added to a tablet computer for use in the military. The CVSA has a 98% accuracy rate and is currently being used by 2,000 law enforcement agencies throughout the United States. There are no language barriers for using this device, and it is compatible with male or female. The training for using the CVSA is approximately 60 hours.
Senator Schickel said that CVSA machines were legal in Kentucky up to 10 years ago when Kentucky changed the standard for lie detection systems. He advised Mr. DeFrancisco to have the company meet with polygraph operators, the Public Protection Cabinet, and the Director of Homeland Security.
In response to a question from Representative Jerry Miller, Mr. DeFrancisco said he cannot answer for the way a polygraph measures in comparison to the CVSA, and that it could be used by Metro Louisville Police at the street level.
In response to a question from Senator Carroll, Mr. DeFrancisco said the CVSA does not have any more evidentiary value in a court of law than a polygraph.
In response to a question from Representative St. Onge, Mr. DeFrancisco said the CVSA is very useful in determining if someone is being truthful or not. Representative St. Onge asked for a list of other agencies that are using the CVSA. Senator Schickel added that he would like to have that list as well.
Senator Schickel said that he was using the privilege of the chair to honor committee members who were leaving the committee with a resolution recognizing their service during their tenure in the legislature. Those members are Representative Denver Butler, Representative Larry Clark, Representative David Floyd, and Representative Brad Montell. Representative Dennis Keene was also honored as he steps down as co-chair. A motion was called for, and the resolutions were unanimously adopted by voice vote.
Kentucky Distillers Association – Discussion of 2017 Legislative Agenda
Kristin Meadors Baldwin, Director of Governmental Affairs, Kentucky Distillers Association said the association has 33 members. To date, 20 members have received the non-quota 3 license that allows a distillery to sell by the drink. Distillers are expanding not only to enhance the visitor experience but are hiring employees to ensure visitors receive a first-class visit. Mixologists use local ingredients to serve farm fresh cocktails. Distilleries are partnering with communities to showcase their industry.
The industry has nine stops on the Bourbon Trail and 11 stops on the Kentucky Bourbon Trail Craft Tour. Sixteen distilleries are under construction. The board of directors of the KDA has adopted a social responsibility statement regarding a code of conduct, a best practices checklist for events and a visitor center responsibility standard. The board has created a new position, Director of Social Responsibility, to oversee these efforts.
The KDA is asking the 2017 General Assembly for a level playing field for distillers by allowing them the same privilege that small farm wineries and micro-brewers enjoy in participating at fairs and festivals. KDA is asking the legislature to clarify the term “produced” to strengthen production standards for the word Kentucky by stating in statute, “whiskey produced from grains which are cooked, fermented and distilled in Kentucky.” KDA would like to modernize penalties for distillers under their retail licenses. Currently, when distillers are penalized, it is under their manufacturers’ license even though they are acting as retailers. Finally, KDA is seeking a change in statute to permit the sale of vintage whiskey at retail locations.
Department of Alcoholic Beverage Control – Discussion of 2017 Legislative Agenda
Christy Trout, Commissioner, Department of Alcoholic Beverage Control, said the department wants to clean-up statutory language and consolidate and clarify language that is duplicative. Making statutes easier to understand will help retailers stay in compliance. Changing definitions will clarify what a caterer is, or what a state administrator is. Changing terms such as “field representative” to “investigator” aids in clarity. Another issue is repealing or amending statutes so that they are consistent with court rulings.
Carol Beth Martin, Malt Beverage Administrator, said that the department intends to consolidate old language within statutes, allowing retailers to store distilled spirits and wine in the same manner as beer, and allowing retailers to deliver distilled spirits and wine to match beer privileges. Another example of duplicative language is limited restaurant food sales regarding the number of seats at tables and their sales percentages.
Steve Humphress, General Counsel, said that ABC’s legislation will clarify ambiguous statutes regarding minors in bars and the vague language the courts have found to be problematic. The new language will also amend the advertising laws to remove restrictions to protect retailers’ first amendment rights. The bill will also group statutes together such as gambling that are now separated by two chapters. The language will simplify licensing terminology to be consistent and clear.
Trina Summers, Distilled Spirits Administrator, said the department would like to provide emergency license suspension powers that will address local community concerns. The department wishes to allow state parks that want to sell specialty bottles to hold an NQ1 quota retail license. The department would like to clarify language regarding cities and counties allowing quota retail drink licenses. There is confusion among local administrator and government officials as to what is permitted and where.
In response to a question from Senator Thayer, Mr. Humphress said currently in order to address violations by licensees, the department is required by Chapter 13B to start administrative proceedings. No license can be revoked until after a hearing it provided. However, KRS 243.560(6) creates an automatic stay; if the retailer appeals, the retailer is allowed to continue business. The retailer has a right to an appeal to Franklin Circuit Court and an additional right to appeal to the Court of Appeals. This could allow a retailer to continue business for up to three years without any penalty. The department is asking for legislation that would allow the department to close a business for cause in dire situations, while still allowing for appeals with the due process in KRS Chapter 13B.
In response to a question from Senator Buford, Ms. Trout said the department is working with the KDA regarding manufacturers acting as retailers. In response to another question from Senator Buford, Ms. Trout said different facilities in an area might have different licenses available to them depending upon whether the territory is wet or moist.
In response to a question from Senator Carroll, Mr. Humphress said KRS Chapter 13B has a specific section regarding an emergency suspension. The enabling statute deals with public safety. Ms. Trout added that there are two separate tracks. The complaint stays the same: however, if there is egregious conduct, this will allow ABC to stop the licensee from doing business for a short period of time.
Representative Meeks said in urban areas there are businesses that cause disruption and repeated complaints. Bad actors use the process to keep their doors open.
In response to a question from Senator Thayer, Mr. Trout said that current law will keep the appeal of the license suspension in Franklin Circuit Court.
Representative St. Onge asked to be provided with information as to why residents in Kentucky cannot send a bottle of bourbon to an out-of-state resident and why a bottle cannot be sent into Kentucky.
Interstate Compact on Nurse Licensure
Rebecca Fotsch, is the Associate Director of State Advocacy and Legislative Affairs at the National Council of State Boards of Nursing (NCSBN). NCSBN is a member organization of all of the state Boards of Nursing and the drafters of the proposed compact as well as the compact that Kentucky is currently a party to. The nursing compact is like the driver’s license compact which allows for mutual recognition from state to state. The nurse licensure compact allows a nurse to have one multistate license in the state of residence that permits the nurse to practice in other member states, both physically and electronically. Kentucky has been in the compact for about 10 years.
The enhanced compact now proposed requires a criminal background check. Additionally there are uniform licensure requirements. The eleven licensure requirements are already required in Kentucky. The reason for changes are to make the compact more effective by adding all states. The new compact will enhance telehealth. The enhanced language has been passed in 10 states and 20 states are moving forward with this language this year.
Paula Schenk, Executive Director, Kentucky Board of Nursing, said Kentucky has participated in the current compact since 2006. There are 71,000 nurses in Kentucky who have multistate licenses. If the enhanced compact is not passed in the 2017 session the Kentucky nurses would not be able to practice across borders. The board had a similar bill in the last session that was not able to pass due to concerns regarding rule making.
Senator Schickel commented that he has spoken with Senator Givens regarding concerns about the compact and he hoped that a resolution can be reached.
Senator Schickel noted that the committee is going to pass over Agenda Item 7, relating to 804 KAR 11:010.
Senator Thayer said he wanted to clarify that Ms. Trout’s response to his question regarding appeals held in Franklin Circuit Court was not due to a decision by the commission but rather is in statute. The legislature can change the statute to allow an issue to be held in a local jurisdiction.
Senator Schickel agreed that this issue was across all regulatory bodies.
There being no further business, the meeting was adjourned at 11:26 AM.