Monday, May 6, 1996

4518 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 May 6, 1996 10 3:09 p.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR JOHN R. KUHL, JR., Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 4519 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: Senate 3 will come to order. Ask the members to find 4 their place, staff to find their place. 5 I ask everybody in the chamber, 6 including those people in the gallery, to rise 7 and join with me in saying the Pledge of 8 Allegiance to the flag. 9 (Whereupon, the Senate and those 10 present joined in the Pledge of Allegiance to 11 the Flag.) 12 In the absence of clergy, may we 13 bow our heads in a moment of silence. 14 (Whereupon, there was a moment of 15 silence.) 16 Reading of the Journal. 17 THE SECRETARY: In Senate, 18 Sunday, May 5. The Senate met pursuant to 19 adjournment. The Journal of Saturday, May 4, 20 was read and approved. On motion, Senate 21 adjourned. 22 ACTING PRESIDENT KUHL: Hearing 23 no objection, the Journal stands approved as 4520 1 read. 2 Presentations of petitions. 3 Messages from the Assembly. 4 Messages from the Governor. 5 Reports of standing committees. 6 Reports of select committees. 7 Communications and reports from 8 state officers. 9 Motions and resolutions. 10 Chair recognizes Senator 11 Maziarz. 12 SENATOR MAZIARZ: Thank you, Mr. 13 President. 14 Mr. President. On page number 15 64, I offer the following amendments to Calendar 16 Number 544, Senate Print Number 6268, and ask 17 that said bill retain its place on Third Reading 18 Calendar, and also to remove the star. 19 ACTING PRESIDENT KUHL: The 20 amendments to Calendar Number 544 are received 21 and adopted. The bill will retain its place on 22 the Third Reading Calendar, and the star is 23 removed. 4521 1 Senator Maziarz. 2 SENATOR MAZIARZ: Mr. President. 3 On page 55, I offer the following amendments to 4 Calendar Number 759, Senate Print Number 1677A, 5 and ask that said bill retain its place on Third 6 Reading Calendar. 7 ACTING PRESIDENT KUHL: The 8 amendments to Calendar Number 759 are received 9 and adopted. Bill will retain its place on 10 Third Reading Calendar. 11 Senator Maziarz. 12 SENATOR MAZIARZ: Mr. President. 13 On behalf of Senator Velella, on page 52, I 14 offer the following amendments to Calendar 15 Number 735, Senate Print Number 6906, and ask 16 that said bill retain its place on Third Reading 17 Calendar. 18 ACTING PRESIDENT KUHL: 19 Amendments to Calendar Number 735 are received 20 and adopted. Bill will retain its place on 21 Third Reading Calendar. 22 Senator Maziarz. 23 SENATOR MAZIARZ: Mr. President, 4522 1 on behalf of Senator Hannon, on page number 61, 2 I offer the following amendments to Calendar 3 Number 11, Senate Print Number 5238, ask said 4 bill retain its place on Third Reading Calendar. 5 ACTING PRESIDENT KUHL: 6 Amendments to Calendar Number 11 are received 7 and adopted. Bill will retain its place on 8 Third Reading Calendar. 9 Senator Maziarz. 10 SENATOR MAZIARZ: Mr. President. 11 On behalf of myself, I ask that a sponsor's star 12 be placed on Calendar Number 871. 13 ACTING PRESIDENT KUHL: Calendar 14 Number 871 is starred at the request of the 15 sponsor. 16 Senator DiCarlo. 17 SENATOR DiCARLO: Mr. President. 18 On behalf of Senator Saland, I wish to call up 19 bill Print Number 3474, recalled from the 20 Assembly, which is now at the desk. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read. 23 THE SECRETARY: By Senator 4523 1 Saland, Senate Print 3474, an act to amend the 2 Social Services Law. 3 ACTING PRESIDENT KUHL: Senator 4 DiCarlo. 5 SENATOR DiCARLO: I now move to 6 reconsider the vote by which the bill was 7 passed. 8 ACTING PRESIDENT KUHL: The 9 Secretary will call the roll on reconsideration. 10 (The Secretary called the roll on 11 reconsideration.) 12 THE SECRETARY: Ayes 40. 13 ACTING PRESIDENT KUHL: The bill 14 is before the house. 15 Senator DiCarlo. 16 SENATOR DiCARLO: Mr. President. 17 I now offer the following amendments. 18 ACTING PRESIDENT KUHL: 19 Amendments are received and adopted. 20 Senator DiCarlo. 21 SENATOR DiCARLO: Mr. President. 22 On behalf of Senator Velella, I'd like to call 23 up bill Print Number 6125, recalled from the 4524 1 Assembly, which is now at the desk. 2 ACTING PRESIDENT KUHL: Secretary 3 will read. 4 THE SECRETARY: By Senator 5 Velella, Senate Print 6125, an act to amend the 6 Insurance Law. 7 ACTING PRESIDENT KUHL: Senator 8 DiCarlo. 9 SENATOR DiCARLO: Mr. President. 10 I now move to reconsider the vote by which this 11 bill was passed. 12 ACTING PRESIDENT KUHL: The 13 Secretary will call the roll on reconsideration. 14 (The Secretary called the roll on 15 reconsideration.) 16 THE SECRETARY: Ayes 43. 17 ACTING PRESIDENT KUHL: The bill 18 is before the house. 19 Senator DiCarlo. 20 SENATOR DiCARLO: Mr. President. 21 I now offer the following amendments. 22 ACTING PRESIDENT KUHL: 23 Amendments are received and adopted. 4525 1 Senator DiCarlo. 2 SENATOR DiCARLO: Mr. President. 3 On behalf of Senator Leibell, I wish to call up 4 bill Print Number 6124, recalled from the 5 Assembly, which is now at the desk. 6 THE SECRETARY: By Senator 7 Leibell, Senate Print 6124, an act to amend the 8 General Municipal Law. 9 ACTING PRESIDENT KUHL: Senator 10 DiCarlo. 11 SENATOR DiCARLO: Mr. President. 12 I now move to reconsider the vote by which this 13 bill was passed. 14 ACTING PRESIDENT KUHL: The 15 Secretary will call the roll on reconsideration. 16 (The Secretary called the roll on 17 reconsideration.) 18 THE SECRETARY: Ayes 43. 19 ACTING PRESIDENT KUHL: The bill 20 is before the house. 21 Senator DiCarlo. 22 SENATOR DiCARLO: Mr. President, 23 I now offer the following amendments. 4526 1 ACTING PRESIDENT KUHL: Senator 2 LaValle. 3 SENATOR LAVALLE: Mr. President, 4 I'd like to place a sponsor's star on Calendar 5 Number 946, Senate Print Number 1719. 6 ACTING PRESIDENT KUHL: Calendar 7 Number 946 is starred at the request of the 8 sponsor. 9 Senator Bruno, I have a 10 substitution at the desk if we could take that 11 now. 12 SENATOR BRUNO: Please make the 13 substitution. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the substitution. 16 THE SECRETARY: On page 5, 17 Senator LaValle moves to discharge from the 18 Committee on Higher Education Assembly Bill 6794 19 and substitute it for the identical Senate Bill 20 7232. 21 ACTING PRESIDENT KUHL: 22 Substitution is ordered. 23 Senator Bruno. 4527 1 SENATOR BRUNO: Mr. President, I 2 believe that there is a privileged resolution at 3 the desk by Senator DiCarlo. I would ask that 4 the title be read and that we move its adoption. 5 ACTING PRESIDENT KUHL: There is 6 a privileged resolution at the desk. I will 7 direct the Secretary to read the title. 8 THE SECRETARY: By Senator 9 DiCarlo, Legislative Resolution commending Sonya 10 Deiber. 11 ACTING PRESIDENT KUHL: The 12 question is on the resolution. 13 All those in favor, signify by 14 saying aye. 15 (Response of "Aye.") 16 Opposed, nay. 17 (There was no response.) 18 The resolution is adopted. 19 Senator Bruno, that brings us to 20 the calendar. 21 SENATOR BRUNO: Mr. President, 22 can we at this time take up the noncontroversial 23 calendar. 4528 1 ACTING PRESIDENT KUHL: Secretary 2 will read the noncontroversial calendar. 3 THE SECRETARY: On page 32, 4 Calendar Number 417, by Senator Libous, Senate 5 Print 4457A, an act to amend the General 6 Business Law, in relation to unlawful possession 7 of tobacco. 8 SENATOR PATERSON: Lay it aside. 9 ACTING PRESIDENT KUHL: Lay the 10 bill aside. 11 THE SECRETARY: Calendar Number 12 537, by Senator Maziarz, Senate Print 4329B, an 13 act to amend the Estate, Powers and Trusts Law, 14 the Insurance Law, in relation to disqualifying 15 persons who have caused the death of a decedent. 16 ACTING PRESIDENT KUHL: The 17 Secretary will read the last section. 18 THE SECRETARY: Section 6. This 19 act shall take effect immediately. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 46. 4529 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 620, by Senator Libous, Senate Print 4496, an 5 act to amend the Penal Law, in relation to 6 authorizing additional term of imprisonment for 7 sale of controlled substances or marijuana. 8 ACTING PRESIDENT KUHL: The 9 Secretary will read the last section. 10 THE SECRETARY: Section 6. This 11 act shall take effect on the first day of 12 November. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 46. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 641, by Senator Maltese, Senate Print 491, an 21 act to amend the Social Services Law, in 22 relation to access to criminal history records. 23 ACTING PRESIDENT KUHL: The 4530 1 Secretary will read the last section. 2 THE SECRETARY: Section 2. This 3 act shall take effect immediately. 4 ACTING PRESIDENT KUHL: Call the 5 roll. 6 (The Secretary called the roll.) 7 THE SECRETARY: Ayes 48. 8 ACTING PRESIDENT KUHL: The bill 9 is passed. 10 THE SECRETARY: Calendar Number 11 650, by Senator Seward, Senate Print 4594, an 12 act to amend the Real Property Tax Law, in 13 relation to the payment date of installments of 14 taxes to a county. 15 ACTING PRESIDENT KUHL: The 16 Secretary will read the last section. 17 THE SECRETARY: Section 2. This 18 act shall take effect on the first day of 19 January. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 50. 4531 1 ACTING PRESIDENT KUHL: The bill 2 is passed. 3 THE SECRETARY: Calendar Number 4 654, by Senator Cook, Senate Print 6271, an act 5 to amend the General Municipal Law, in relation 6 to fees of justice courts. 7 SENATOR WALDON: Lay it aside. 8 ACTING PRESIDENT KUHL: Lay the 9 bill aside. 10 THE SECRETARY: Calendar Number 11 655, by Senator Cook, Senate Print 6348A, an act 12 to amend the Local Finance Law, in relation to 13 flood relief expenses. 14 ACTING PRESIDENT KUHL: The 15 Secretary will read the last section. 16 THE SECRETARY: Section 4. This 17 act shall take effect immediately. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 THE SECRETARY: Ayes 50. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 4532 1 THE SECRETARY: Calendar Number 2 656, by Senator Rath, Senate Print 6661, an act 3 to amend the County Law, in relation to the 4 operation of secure detention facilities. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 657, by Senator Rath, Senate Print 6785, an act 9 to amend the General Municipal Law, in relation 10 to authorizing an increase in the charge that 11 may be imposed for a returned check. 12 SENATOR LEICHTER: Lay it aside. 13 ACTING PRESIDENT KUHL: Lay the 14 bill aside. 15 THE SECRETARY: Calendar Number 16 663, by member of the Assembly Luster, Assembly 17 Print 647A, an act to amend the Uniform District 18 Court Act. 19 ACTING PRESIDENT KUHL: The 20 Secretary will read the last section. 21 THE SECRETARY: Section 15. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 4533 1 roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 51. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 665, by Senator Lack, Senate Print 6746 an act 8 to amend the Surrogate's Court Procedure Act, in 9 relation to the time in which an estate may be 10 distributed. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 THE SECRETARY: Section 2. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 51. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 668, by Senator Present, Senate Print 4092, an 23 act to amend the Economic Development Law, the 4534 1 General Municipal Law, the Public Authorities 2 Law, in relation to program reporting. 3 ACTING PRESIDENT KUHL: The 4 Secretary will read the last section. 5 THE SECRETARY: Section 29. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 51. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 669, by Senator Johnson, Senate Print 5077, an 15 act to amend State Administrative Procedure Act, 16 in relation to requiring private property rights 17 protection. 18 SENATOR VOLKER: Lay it aside. 19 ACTING PRESIDENT KUHL: Lay the 20 bill aside. 21 THE SECRETARY: Calendar Number 22 680, by Senator Levy, Senate Print 2591D, an act 23 to amend the Public Authorities Law and 4535 1 Administrative Code of the State of New York, in 2 relation to establishing the Committee on 3 Personal security. 4 SENATOR LEICHTER: Lay it aside. 5 ACTING PRESIDENT KUHL: Lay the 6 bill aside. 7 THE SECRETARY: Calendar Number 8 731, by Senator Velella, Senate Print 3763, an 9 act to amend the Insurance Law, in relation to 10 agent termination. 11 ACTING PRESIDENT KUHL: Lay the 12 bill aside. 13 Senator Bruno, that completes the 14 calling of the noncontroversial calendar. 15 SENATOR BRUNO: Mr. President, 16 can we at this time take up the controversial 17 calendar. 18 ACTING PRESIDENT KUHL: The 19 Secretary will read the controversial calendar, 20 beginning with Calendar Number 417. 21 THE SECRETARY: On page 32, 22 Calendar Number 417, by Senator Libous, Senate 23 Print 4457A, an act to amend the General 4536 1 Business Law, in relation to unlawful possession 2 of tobacco. 3 ACTING PRESIDENT KUHL: Senator 4 Libous, an explanation of Calendar Number 417 5 has been asked for by the Acting Minority 6 Leader, Senator Paterson. 7 SENATOR LIBOUS: Thank you, Mr. 8 President. Basically, what this legislation 9 does, it puts responsibility on those minors who 10 are purchasing and possessing tobacco. We have 11 laws that are presently on the books that go 12 after those businesses who are illegally selling 13 tobacco products to minors. 14 This is patterned very similarly 15 to the alcohol bill that this house passed 16 several years ago and actually became law, which 17 dealt with the unlawful possession of alcohol. 18 This deals with tobacco products. 19 Right now, we're trying to do everything we 20 can. This state spends an awful lot of money 21 through education programs, through schools and 22 through a number of different areas and trying 23 to teach our young people under the age of 18 4537 1 years of age that tobacco products can be 2 harmful, and I think this goes a long way in 3 teaching them a little bit of added 4 responsibility. 5 ACTING PRESIDENT KUHL: Senator 6 Paterson. 7 SENATOR PATERSON: Thank you, Mr. 8 President. If Senator Libous would avail 9 himself to a question? 10 ACTING PRESIDENT KUHL: Senator 11 Libous, do you yield to a question from Senator 12 Paterson? 13 SENATOR LIBOUS: I'd be happy to, 14 Mr. President. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR PATERSON: Thank you, Mr. 18 President. 19 Senator Libous, we agree with the 20 goals of this type of legislation, and it would 21 establish a good precedent. I'm just confused 22 as to why we are exempting the employees of the 23 dealers, the wholesalers and the distributors of 4538 1 tobacco, the employees who would be underage. 2 Why are they restricted on this legislation? 3 SENATOR LIBOUS: Mr. President, 4 right now, under present law, what would happen 5 basically is, there are fines that are imposed 6 against those businesses. So, Mr. President, 7 the business owner would be subject to those 8 penalties and fines. It really doesn't pertain 9 to the person who actually sold the product, but 10 it pertains to the business itself. 11 ACTING PRESIDENT KUHL: Senator 12 Paterson. 13 SENATOR PATERSON: Thank you, Mr. 14 President. If Senator Libous would continue to 15 yield? 16 SENATOR LIBOUS: Yes, I will. 17 ACTING PRESIDENT KUHL: Senator 18 continues to yield. 19 SENATOR PATERSON: Senator, what 20 I read from your legislation was the possession 21 of tobacco with intent to use it. So in spite 22 of the fact that the business owner would be 23 liable, the message and the lesson that you just 4539 1 described that we would want to send to younger 2 people, in my opinion, would be enhanced just as 3 forcibly by the maintaining of the exact same 4 guidelines for an individual whether they were 5 an employee or not an employee. 6 So, in other words, if the intent 7 of the legislation is to target those who would 8 use the tobacco, then I don't see any difference 9 between an individual who would be employed by 10 the wholesaler, the dealer or the distributor, 11 and anybody else. 12 And so my question is, why would 13 we draw that distinction? 14 SENATOR LIBOUS: Mr. President. 15 I drew the distinction because the intent and 16 purpose of this legislation was to put some 17 teeth into those who are under age of 18 and who 18 are possessing tobacco products. Basically, our 19 goal here is to teach and to try to put some 20 enforcement responsibilities upon those who, 21 particularly, go into stores and are purchasing 22 the products illegally. 23 There are teeth in the present 4540 1 law that deal with penalties to businesses; 2 however, the young person in the past has been 3 able to walk away and not have any 4 responsibility. This is patterned very similar 5 to, as I said, the alcohol legislation that was 6 passed and signed by the Governor a couple of 7 years ago; and, basically, its goal, Senator, is 8 to put some responsibility on the individual who 9 is underage and buying tobacco products. 10 Its intent is not to go after the 11 particular businesses because there are already 12 laws that are on the books that deal with those 13 particular individuals, and it's not to go after 14 any particular individual who works. For years, 15 what we've done -- as a matter of fact, I can 16 give you a good example. My father owned a 17 grocery store. If I was working that store or 18 my brother was working that store or if my 19 cousin or sister was working that store, and we 20 sold tobacco products to a minor, we would then 21 be punished as a business, and my father would 22 have to pay that fine. There would be no 23 particular punishment of the individual, and 4541 1 that's not what the intent of this legislation 2 is to be. 3 This is legislation that should 4 show some responsibility on the fact that if 5 young people are purchasing tobacco under the 6 age of 18 and they are possessing it then there 7 should be some responsibility here. 8 ACTING PRESIDENT KUHL: Senator 9 Paterson. 10 SENATOR PATERSON: Mr. 11 President. Thank you very much Senator Libous 12 for your response. 13 Mr. President, on the bill. 14 ACTING PRESIDENT KUHL: Senator 15 Paterson, on the bill. 16 SENATOR PATERSON: It might be 17 somewhat of a mixed message if an individual 18 cannot use a product or can sell a product when 19 they are underage. That is not really my 20 problem with this legislation. 21 I agree with Senator Libous that 22 we would not want to be restricting somebody 23 from working and if they are working and they 4542 1 are underage, they should be entitled, I would 2 suppose, to sell all the products that a person 3 is selling if they are over the limit. 4 But what is specific to this 5 legislation is that it targets the intent to use 6 the product which would automatically exempt an 7 individual who was selling the product, and so, 8 since we would automatically exempt the person 9 since they could establish, "No, I'm not using 10 it, I'm selling it," I imagine what Senator 11 Libous is really trying to do is to make sure 12 that there is not a presumption that the sale is 13 not the catalyst to the use, and I can 14 understand that. 15 However, I don't think it is 16 necessarily appropriate to the legislation or to 17 the message we want to send, and we want to send 18 a complete message presumably, not one that is 19 somewhat obfuscated by an ancillary piece of 20 legislation that would confuse people, and I 21 think we are confusing individuals when they 22 come to the conclusion that an individual is 23 exempt because they are selling a product. 4543 1 The fact is that the legislation 2 itself states that it is the use or the intent 3 to use that would make someone eligible under 4 the statute and, since the statute is written 5 that way, I would feel that it sends a mixed 6 message, because a person who is now selling the 7 product could use it because there's nothing to 8 stop them whereas anyone else would be 9 prohibited by this legislation. 10 ACTING PRESIDENT KUHL: Is there 11 any other Senator wishing to speak on the bill? 12 SENATOR WALDON: Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Waldon. 15 SENATOR WALDON: Yes, would 16 Senator Libous yield? 17 ACTING PRESIDENT KUHL: Senator 18 Libous, would you yield to a question from 19 Senator Waldon? 20 SENATOR LIBOUS: Certainly. 21 ACTING PRESIDENT KUHL: Senator 22 yields. 23 SENATOR WALDON: Senator Libous, 4544 1 suppose someone is in the U.S. military. 2 They're a New York resident. You can join the 3 military under age 18. You can go away and die 4 for your country at that tender age. What 5 happens when someone who is accustomed to 6 smoking on the base comes home and is found to 7 have cigarettes in his or her possession? 8 SENATOR LIBOUS: If he or she is 9 under 18, and for some reason the law needs to 10 be put into place, then they would not be 11 exempt. 12 SENATOR WALDON: I beg your 13 pardon? 14 SENATOR LIBOUS: They would not 15 be exempt. Obviously, Senator, the intent here, 16 again, is predominantly in those situations 17 where we have people under 18 years of age 18 purchasing cigarettes in stores and, as you 19 know, you have to be 18 years of age to 20 purchase, and this is really where the intent of 21 this legislation is going. And also if young 22 minors are possessing tobacco and if they are in 23 a situation where they are caught with that 4545 1 possession, there are a couple of violations 2 that can take place. 3 Obviously, the violation will not 4 go against their record, but there could be 5 community service or a $50 fine. And, again, 6 the whole concept here is to teach people under 7 the age of 18, quite simply, that it is illegal 8 for them to purchase and it's illegal for them 9 to have possession. 10 So, obviously, Senator, if 11 someone is 17 years of age and they are in the 12 armed forces, that's an honorable thing for them 13 to do, but at the same time they are still not 14 old enough to purchase tobacco products in the 15 United States. 16 SENATOR WALDON: Would the 17 Senator yield for another question or two, Mr. 18 President? 19 ACTING PRESIDENT KUHL: Senator 20 Waldon, Senator Libous, if you would excuse us 21 just a minute. I want to recognize Senator 22 Bruno for an announcement. 23 SENATOR BRUNO: Would you 4546 1 Senators excuse the interruption while we 2 announce a correction. 3 The Transportation Committee was 4 announced to meet in Room 124. We would like to 5 change that to Room 332. They are meeting 6 immediately. We would ask any members to join 7 them in Room 332, not Room 124. 8 Thank you, Senators. 9 ACTING PRESIDENT KUHL: There 10 will be an immediate meeting of the Senate 11 Transportation Committee in the Majority 12 Conference Room, Room 332. 13 An immediate meeting of the 14 Senate Transportation Committee in the Majority 15 Conference Room, Room 332. 16 Thank you, gentlemen, for the 17 interruption. Senator Waldon, you had the 18 floor. 19 SENATOR WALDON: Yes, I was 20 asking if Senator Libous would yield for another 21 question? 22 ACTING PRESIDENT KUHL: Senator 23 Libous, do you continue to yield? 4547 1 SENATOR LIBOUS: Yes. 2 ACTING PRESIDENT KUHL: Senator 3 continues to yield. 4 SENATOR WALDON: Thank you very 5 much, Mr. President. 6 Thank you, Senator. Senator, I'm 7 trying to make here a valid point. It's not a 8 frivolous pursuit. 9 But if someone is in the service 10 of his or her nation and if the consumption of 11 alcohol and/or tobacco products on base is 12 approved by the employer of the moment, this 13 nation, we have an obvious conflict when the 14 person comes home and happens to stop to buy a 15 pack of cigarettes and is then caught in the 16 snare of what you are proposing. 17 SENATOR LIBOUS: Mr. President, 18 if I can answer that. I respect what the 19 Senator is saying, but at the same time that 20 person serves his country overseas and comes 21 home and, if that person is under the age of 18, 22 they can not legally purchase tobacco products. 23 That doesn't change. 4548 1 SENATOR WALDON: Thank you very 2 much, Mr. President. Thank you, Senator Libous. 3 ACTING PRESIDENT KUHL: Any other 4 Senator wishing to speak on the bill? 5 Senator Paterson. 6 SENATOR PATERSON: Mr. 7 President. Upon further perusal of the bill, 8 it's possible that I made a mistake. 9 And if Senator Libous would yield 10 for a question? 11 ACTING PRESIDENT KUHL: Senator 12 Libous, do you yield to another question from 13 Senator Paterson? 14 SENATOR LIBOUS: Yes, I would, 15 Mr. President. 16 ACTING PRESIDENT KUHL: Senator 17 yields. 18 SENATOR PATERSON: Senator 19 Libous, I asked you a question earlier about an 20 individual who was employed by a distributor or 21 a wholesaler, and so the thrust of my question 22 was, would this exempt this individual from 23 being charged if it could be established that 4549 1 they were going to use the tobacco product? 2 SENATOR LIBOUS: Mr. President, 3 could I ask Senator Paterson to hit me with that 4 question one more time, because I'm a little 5 confused as to what he is after. 6 SENATOR PATERSON: Certainly, Mr. 7 President. 8 SENATOR LIBOUS: Please. 9 SENATOR PATERSON: There is an 10 exemption in the legislation that covers 11 individuals who are employed in the selling of 12 tobacco by the distributor or the wholesaler 13 and, therefore, I inferred from the reading of 14 that part of the legislation that you could not 15 ban these individuals even if they were 16 intending to use the product. 17 So my question is, more than the 18 fact that an individual worked for the 19 convenience store, if they took a pack of 20 cigarettes outside of the convenience store 21 clearly with an intent to use the product, would 22 the exemption still cover them or would they be 23 just as liable as anyone else who is using the 4550 1 product? 2 SENATOR LIBOUS: Senator, thank 3 you, because I do understand your question now. 4 I really didn't the first time. 5 The answer to your question is 6 yes. Yes. 7 SENATOR PATERSON: Thank you, 8 Senator. Then, therefore, there was somewhat of 9 a misunderstanding, because I thought that the 10 exemption would cover even the intent to use of 11 the individual. 12 SENATOR LIBOUS: Mr. President. 13 Senator Paterson, and I apologize because I mis 14 understood the question initially, but the 15 answer to that question is yes. 16 SENATOR PATERSON: Thank you, 17 Senator. 18 ACTING PRESIDENT KUHL: Senator 19 Marchi. 20 SENATOR MARCHI: I just wanted to 21 comment. Senator Libous' bill is really -- he 22 is doing something very constructive for that 23 youngster, and that youngster may be grateful 4551 1 some day. 2 You know, the most painful thing 3 is to see young people getting involved in 4 smoking. The older people are sometimes 5 dependent, and it is difficult to wrestle with 6 that problem successfully, but anything that can 7 be done to dissuade and persuade that this is 8 the wrong way to go may spare that young man or 9 that young woman from a date on the table where 10 they are being operated for lung cancer or some 11 other malignancy. 12 So this is a very, very 13 constructive step. It is a mild reproach, 14 really, but it is an educative process that that 15 young man or woman would certainly value later 16 on in life when they realize the hazards they 17 were being asked to avoid. 18 I certainly would urge a positive 19 vote on this. 20 ACTING PRESIDENT KUHL: The 21 Secretary will read the last section. 22 THE SECRETARY: Section 2. This 23 act shall take effect on the first day of 4552 1 September. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 ACTING PRESIDENT KUHL: Senator 6 Montgomery to explain her vote. 7 SENATOR MONTGOMERY: Yes, Mr. 8 President. I'm going to vote against this bill, 9 not because I think that it's bad for young 10 people to be discouraged from smoking and using 11 tobacco at all but because I believe that there 12 are much more effective ways of doing that, and 13 we certainly don't want to go around issuing 14 summonses to 16- and 17- and 13- and 15 14-year-olds because their parents sent them to 16 the store to buy cigarettes or whatever or 17 however they get the cigarettes. The bodega 18 sells it to them or one at a time or however 19 they get it, which is how a lot of young people 20 get these cigarettes. 21 And for them to receive a summons 22 and have to go to whatever the court is, 23 whatever the process is vis-a-vis the 4553 1 legislation, I just don't think that that is a 2 way to really and truly discourage children from 3 using cigarettes or any other drug at an early 4 age. 5 I would hope, on the other hand, 6 that Senator Libous would be as vocal and as 7 persistent in pushing for school-based health 8 clinics with funding -- clinics that include 9 funding through the Department of Education for 10 the express purpose of providing health 11 education to young people in schools at an early 12 point when they are most impressionable and when 13 we can get them to change their behavior as 14 relates to their bodies and their health 15 generally. 16 So, Mr. President, I'm voting no 17 on this, and, as I said, I agree with the 18 intent, but I think that this is just the wrong 19 direction to go if we want to really teach 20 youngsters to take care of their bodies and to 21 live healthy and healthful lives. 22 ACTING PRESIDENT KUHL: Senator 23 Montgomery will be recorded in the negative. 4554 1 Senator Waldon to explain his 2 vote. 3 SENATOR WALDON: Thank you very 4 much, Mr. President. 5 We have an incongruity here. At 6 the federal level, the government is subsidizing 7 tobacco farmers. They are a key element in our 8 economy, and the federal government is saying, 9 "We need you to grow tobacco," and yet some 10 welfare mother will send her young child to the 11 store to buy a pack of cigarettes because as a 12 single parent, head of household, her only 13 pleasure of the moment may be the pack of 14 cigarettes. 15 And this kid who will probably 16 look something like me, on his way home, will be 17 stopped by an officer doing his duty, not 18 necessarily picking on this young person, but 19 the person's introduction to the criminal 20 justice system will begin with this summons. 21 I think it is wrong. I think it 22 is abhorrent. 23 I don't condone smoking 4555 1 especially amongst young folk, but I think the 2 social concern and the social responsibility is 3 misdirected. I think it's a mistake to 4 constantly intrude in certain forms of social 5 behavior, and I think this chamber should be 6 mindful of the direction in which it is headed 7 when it does these kinds of things. 8 Will we next be peeking through 9 the blinds in the bedroom and saying, "Aha! 10 This is not acceptable"? I think that's the 11 direction in which we're headed when we pursue 12 this course of action. 13 And because of these reasons, I 14 oppose it. I vote in the no. 15 ACTING PRESIDENT KUHL: Senator 16 Waldon will be recorded in the negative. 17 Announce the results. 18 THE SECRETARY: Those recorded in 19 the negative on Calendar Number 417 are Senator 20 Montgomery, Senators Seabrook, Smith and 21 Waldon. Ayes 50, nays 4. 22 ACTING PRESIDENT KUHL: The bill 23 is passed. 4556 1 The Secretary will continue to 2 call the controversial calendar. 3 THE SECRETARY: Calendar Number 4 654, by Senator Cook, Senate Print 6271, an act 5 to amend the General Municipal Law, in relation 6 to fees of justice courts. 7 ACTING PRESIDENT KUHL: Senator 8 Gold. 9 SENATOR GOLD: What? 10 ACTING PRESIDENT KUHL: You rise 11 for a question? 12 The Secretary will read the last 13 section. 14 THE SECRETARY: Section 3. This 15 act shall take effect on the first day of April. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 54. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 Senator Stavisky, why do you 23 rise? 4557 1 SENATOR STAVISKY: Mr. 2 President. I was just outside the chamber when 3 Calendar 417 was voted on. Will you cast me in 4 the negative, please. 5 ACTING PRESIDENT KUHL: Without 6 objection, hearing no objection, Senator 7 Stavisky will be recorded in the negative on 8 Calendar Number 417. 9 The motion is to reconsider the 10 vote by which Calendar Number 654 passed the 11 house. 12 The Secretary will read. 13 THE SECRETARY: By Senator Cook, 14 Senate Print 6271, an act to amend the General 15 Municipal Law, in relation to fees of justice 16 courts. 17 ACTING PRESIDENT KUHL: The 18 Secretary will call the roll on reconsideration. 19 (The Secretary called the roll on 20 reconsideration.) 21 THE SECRETARY: Ayes 54. 22 ACTING PRESIDENT KUHL: The bill 23 is before the house. 4558 1 Secretary will read. 2 THE SECRETARY: Calendar Number 3 654, by Senator Cook, Senate Print 6271, an act 4 to amend the General Municipal Law, in relation 5 to fees of justice courts. 6 ACTING PRESIDENT KUHL: Senator 7 Waldon. 8 SENATOR WALDON: Thank you very 9 much, Mr. President. I appreciate the courtesy. 10 Will Senator Cook yield to a 11 question? 12 ACTING PRESIDENT KUHL: Senator 13 Cook, do you yield? 14 SENATOR COOK: Yes. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR WALDON: Senator, when I 18 read over this bill, I was very concerned that 19 the person who may be required to pay these fees 20 might not be in a position to really afford it. 21 I recognize that if they committed certain forms 22 of behavior, they should be punished. I'm not 23 opposed to that. I'm really not opposed to the 4559 1 exacting of fines -- not fines, I'm sorry fees 2 when a person can afford it, but many of the 3 people, as you know as well as I, who come 4 before the criminal justice system are there 5 through acts of desperation and really can not 6 afford to pay fees of any form. That's why 7 they're out stealing or whatever they're doing. 8 Not condoning the behavior, but are we not 9 compounding the process by putting these 10 additional fees on them? I just wanted to know 11 how you feel about that. 12 SENATOR COOK: Mr. President. 13 Senator, the process of levying these fees is 14 something that's been on the book for ten 15 years. It does indeed add $5 in each instance 16 to the cost that's there. I have to assume that 17 if $5 is a hardship, $10 is still a hardship. 18 But I don't think it really changes the 19 dimensions of what happens if the person is 20 indigent and, therefore, unable to pay the fee. 21 In all candor, I assume that 22 there is a process by which the court deals with 23 that situation and, frankly, Senator, I don't 4560 1 know what it is because I'm not an attorney, I 2 don't practice in the courts. 3 The whole point of this bill, 4 however, is that for ten years the justice 5 courts have been basically collecting a lot of 6 money for the state of New York. They are in 7 fact big revenue collectors. Cost of running 8 those justice courts is imposed upon the 9 taxpayers of the municipality and consequently 10 there is never -- the local people are paying a 11 property tax to pay for a court which 12 essentially is raising money and sending it to 13 the state, and the whole point of this bill is 14 to try to make sure that those courts are 15 self-supporting. That is really the point of 16 it. 17 SENATOR WALDON: Mr. President, 18 on the bill. 19 ACTING PRESIDENT KUHL: Senator 20 Waldon, on the bill. 21 SENATOR WALDON: I appreciate the 22 explanation of Senator Cook. I did not 23 understand it as well reading through it as his 4561 1 explanation. If the purpose here is to reduce 2 the impact on the local municipalities, 3 certainly I can go along with that. I prefer 4 that the state pick up the whole cost and that 5 there be no tax on the municipality or on those 6 who may be indigent in this process. 7 I will support the bill, Mr. 8 President. 9 Thank you, Senator Cook. 10 ACTING PRESIDENT KUHL: The 11 Secretary will read the last section. 12 THE SECRETARY: Section 3. This 13 act shall take effect on the first day of April. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 54. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 656, by Senator Rath, Senate Print 6661, an act 22 to amend the County Law, in relation to the 23 operation of secure detention facilities. 4562 1 SENATOR PATERSON: Explanation. 2 ACTING PRESIDENT KUHL: Senator 3 Rath, an explanation of Calendar 656 has been 4 asked for by Senator Paterson, the Acting 5 Minority Leader. 6 SENATOR RATH: Yes, Senator 7 Paterson. The bill before the house is a bill 8 that would give the counties an opportunity to 9 contract with other entities than they are now 10 contracting with. It was at the request of 11 several counties in the Capital Region and 12 Chemung County. They have asked the Division 13 for Youth for permission to establish secure 14 detention facilities operated by an authorized 15 agency. 16 There are presently only six such 17 facilities in the state of New York and in that 18 many youth have been sentenced to the kinds of 19 sentences that would keep them in detention for 20 over a year and they need to be in secure 21 detention as opposed to nonsecure detention, 22 they need another option, and this would give 23 them that option. 4563 1 ACTING PRESIDENT KUHL: Senator 2 Paterson. 3 SENATOR PATERSON: Thank you, Mr. 4 President. If Senator Rath will yield? 5 SENATOR RATH: Sure. 6 ACTING PRESIDENT KUHL: Senator 7 yields. 8 SENATOR PATERSON: Senator Rath, 9 I don't mean to minimize the gravity of concern 10 that the counties have for the staffing of these 11 facilities, and I recognize that there have been 12 a number of complaints about malfeasance of duty 13 on the part of some of the individuals who work 14 there; nonetheless, the operation of secure 15 detention facilities is a critical function in 16 the state and the individuals who are placed in 17 such facilities pose a tangible threat to our 18 society. 19 Ordinarily, these facilities are 20 staffed by highly-trained and very professional 21 individuals. Because there have been some 22 problems, isn't it possible that the private 23 companies with which we may contract are not 4564 1 training their personnel as well and that in 2 avoidance of a problem, that perhaps we can 3 address administratively, we take a procedure 4 that might exacerbate the problem that we're 5 having in the facilities right now? 6 SENATOR RATH: Senator, my 7 recollection of some of the difficulties that we 8 had were in state facilities, and it was state 9 personnel that we had some of the difficulties 10 with, and it's my understanding that this would 11 be an authorized agency and licensed by the 12 state of New York, and so the question of the 13 kinds of folks that were functioning as the 14 personnel in the agencies would have the same 15 responsibilities for training as they would if 16 they were in a state-run facility. This just 17 gives an alternate opportunity, for example, if 18 two counties wanted to work together and share. 19 And in that there are only six 20 facilities in the state now, the fact that these 21 are young people whose parents need to see them 22 on the weekend and the young people who need to 23 see their parents, I think we need to have more 4565 1 of these facilities, and recognizing that the 2 nonsecure facilities -- we are now contracting 3 that way for the nonsecure facilities. This 4 just makes it possible for them to be secure 5 facilities. Indeed, it may be even some of the 6 same agencies that are contracting for nonsecure 7 that would contract for secure. 8 ACTING PRESIDENT KUHL: Senator 9 Paterson. 10 SENATOR PATERSON: Thank you, Mr. 11 President, Senator Rath. The method of 12 regulation you are saying would, in effect, be 13 the same even though the operation of the 14 companies may be somewhat outside of the scope 15 of the agencies with which we are contracting 16 right now? 17 SENATOR RATH: Well, the agencies 18 that we're contracting with right now are not 19 for-profit corporations licensed by the 20 Department of Social Services to provide this 21 care for delinquent, destitute, abused and 22 neglected youth. I'm thinking of several 23 specific agencies in Western New York that would 4566 1 qualify and are presently licensed to serve as 2 nonsecure. They would now through additional 3 regulations and the additional certification be 4 able to supply for secure, as well as nonsecure. 5 SENATOR PATERSON: If Senator 6 would continue to yield? 7 SENATOR RATH: Sure. 8 SENATOR PATERSON: Would you be 9 planning on licensing the companies that we 10 would now be contracting with? 11 SENATOR RATH: Was that the full 12 question, Senator? 13 SENATOR PATERSON: That was a 14 question. 15 SENATOR RATH: Could you repeat 16 the question. I thought it was a half a 17 question. Go ahead again, please. 18 SENATOR PATERSON: My question is 19 what would be the standard of care that the 20 private companies would have to meet to become 21 eligible, and would we be licensing them? 22 SENATOR RATH: Whatever we're 23 doing in state facilities, that same standard 4567 1 would be held to the private companies that 2 would be providing the services. 3 SENATOR PATERSON: Thank you very 4 much, Senator. 5 Other than that -- the Civil 6 Service Employees Association has issued a memo 7 in opposition to this legislation and other than 8 that, I thank you for the answer. 9 ACTING PRESIDENT KUHL: Chair 10 recognizes Senator Leichter. 11 SENATOR LEICHTER: Yes, thank 12 you, Mr. President. 13 Senator Rath, would you be so 14 good as to yield to one or more questions? 15 ACTING PRESIDENT KUHL: Senator 16 Rath, do you yield to Senator Leichter? 17 SENATOR RATH: Yes. 18 ACTING PRESIDENT KUHL: Senator 19 yields. 20 SENATOR LEICHTER: Senator Rath, 21 as I understand it, your bill would authorize 22 the contracting out of all aspects of the 23 operation of one of these youth facilities. Is 4568 1 that correct? 2 SENATOR RATH: We are saying that 3 the counties would have the flexibility to 4 contract if they did not have the capacity in 5 their county in order to cover the number of 6 young people that needed to be in a secure 7 detention facility. 8 SENATOR LEICHTER: If you would 9 be so good as to continue to yield. 10 SENATOR RATH: Yes. 11 SENATOR LEICHTER: And that 12 contracting can be to a private company; is that 13 correct? 14 SENATOR RATH: It would be to an 15 agency that would be certified by the Department 16 of Social Services. For example, Hopevale in 17 Erie County would be a capability of a 18 contractor. These are private not-for-profit 19 agencies that could contain secure detention as 20 opposed to nonsecure detention. 21 SENATOR LEICHTER: Among the 22 services they would be contracting out would 23 also be the security services to see that these 4569 1 kids did not run away? 2 SENATOR RATH: Yes. Yes, that's 3 exactly right. 4 SENATOR LEICHTER: The question I 5 have for you, Senator Rath, is, earlier this 6 session, maybe just a couple of weeks ago, we 7 passed a bill that was sponsored by Senator 8 Nozzolio and Senator Abate which I'm sure you 9 voted for -- I think it passed unanimously - 10 where we prohibited the Department of Correction 11 from contracting out the security functions. 12 Why, just two weeks after we did that, are we 13 departing this principle in the instances of 14 youth facilities? 15 SENATOR RATH: I think we're 16 talking about two different kinds of contracting 17 out, for the Corrections Department or the 18 Division for Youth. I think we've got -- the 19 Corrections Department has facilities all over 20 the state. There are only six facilities that 21 we're talking about that provide the services 22 presently, secure services for the youth. 23 SENATOR LEICHTER: Senator Rath, 4570 1 if you will continue to yield. 2 ACTING PRESIDENT KUHL: Senator 3 Rath, do you continue to yield? 4 SENATOR RATH: Yes. 5 ACTING PRESIDENT KUHL: Senator 6 continues to yield. 7 SENATOR LEICHTER: It's my 8 recollection that the reason we supported 9 unanimously in this chamber Senator Nozzolio and 10 Senator Abate's bill was not because there were 11 so many correctional facilities and, therefore, 12 why contract out, but it was because we thought 13 the significance and the importance of seeing 14 that facilities are securely run made it not 15 only appropriate but made it necessary for us as 16 a Legislature to say that security services for 17 the protection of society and the protection of 18 inmates should always be done by government, 19 should not be privately done. 20 Why wouldn't that principle apply 21 here? 22 SENATOR RATH: Well, Senator, I 23 believe that if a county decides that that's the 4571 1 way they want to provide the services that are 2 mandated for them to provide for the young 3 people in their county, then they can decide to 4 do it that way. But if they want to choose 5 another option, we are giving them the 6 opportunity to look at other options. 7 SENATOR LEICHTER: Good. Thank 8 you very much. 9 Mr. President, on the bill. 10 ACTING PRESIDENT KUHL: Senator 11 Leichter, on the bill. 12 SENATOR LEICHTER: I think this 13 bill specifically and directly contradicts the 14 bill we passed before, and I think anybody who 15 votes for this bill is sort of watering down the 16 vote that they cast on the Nozzolio-Abate bill. 17 It's true, here we're talking 18 about people in youth facilities, but as we well 19 know, some of the people in those youth 20 facilities need more careful security than 21 people who are now in the state detention 22 facilities. Security is very important. 23 For society, it's also important 4572 1 that it be done correctly and properly for the 2 people who are incarcerated. I think if we say 3 for people in state facilities we think it is 4 inappropriate, I don't see why we would give 5 local option to counties to depart from this 6 principle. 7 This should be a universal 8 principle. It certainly makes sense to me to 9 say that to see that security services are 10 properly and correctly carried out that we want 11 it done by government. That should not be 12 contracted out. 13 Having voted for the Nozzolio 14 Abate bill, I don't see how I could vote for 15 your bill, Senator Rath. 16 ACTING PRESIDENT KUHL: Is there 17 any other Senator wishing to speak on this 18 bill? 19 SENATOR ABATE: If I could just 20 explain my vote. 21 ACTING PRESIDENT KUHL: The 22 Secretary will read the last section. 23 THE SECRETARY: Section 2. This 4573 1 act shall take effect immediately. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll.) 5 Senator Abate to explain her 6 vote. 7 SENATOR ABATE: Yes, as Senator 8 Leichter was absolutely on the mark, I could 9 support this legislation if it carved out those 10 responsibilities within DFY like DOCS or other 11 correction facilities whose responsibility is to 12 secure those facilities. We talked about how 13 sensitive a function security is, whether it's 14 the peace officers in correction facilities or 15 individuals assigned to secure DFY facilities. 16 These are not ordinary functions 17 that can be contracted out to for-profit 18 organizations. It requires the skills and 19 training, sometimes a career path. As we stated 20 before when we sponsored and supported the other 21 bill, there are certain positions like police 22 officers. They are the core function of 23 government and should remain within the function 4574 1 of government. So as we supported that other 2 bill, I believe we have to defeat this bill 3 unless an amendment is made to carve out the 4 security functions at DFY. 5 I have to oppose the bill today. 6 I invite the sponsor to look at future 7 amendments. 8 ACTING PRESIDENT KUHL: Senator 9 Abate will be recorded in the negative. 10 Announce the results. 11 THE SECRETARY: Those recorded in 12 the negative on Calendar Number 656, Senator 13 Abate, Connor, Espada, Lachman, Leichter, 14 Markowitz, Montgomery, Onorato, Paterson, Smith, 15 Stachowski, Stavisky and Waldon. Ayes 41, nays 16 13. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 657, by Senator Rath, Senate Print 6785, an act 21 to amend the General Municipal Law, in relation 22 to authorizing an increase in the charge that 23 may be imposed for a return check. 4575 1 ACTING PRESIDENT KUHL: The 2 Secretary will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect on the 90th day. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 54. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 669, by Senator Johnson, Senate Print 5077, an 13 act to amend the State Administrative Procedure 14 Act, in relation to requiring a private property 15 rights protection. 16 ACTING PRESIDENT KUHL: Senator 17 Leichter. 18 SENATOR LEICHTER: I was going to 19 ask for an explanation, but Senator Paterson 20 has. 21 ACTING PRESIDENT KUHL: Senator 22 Johnson, an explanation of Calendar Number 669 23 has been asked for by Senator Paterson and 4576 1 Senator Leichter. 2 SENATOR JOHNSON: Mr. President, 3 I could give a very good explanation if I had my 4 folder here. It's on its way. But suffice it 5 to say that the original draft of the 6 Declaration of Independence brought forth 7 protection of life, liberty and property. It 8 was changed even then, say, to mean life, 9 liberty and pursuit of happiness. 10 Well, some people's happiness is 11 owning property and using property in a way 12 which suits them and which doesn't bother other 13 people; but in recent years, of course, we've 14 had a plethora of legislation which essentially 15 diminishes the right to use your property as you 16 see fit even when it doesn't affect anyone 17 else. 18 It seems government now has a 19 larger right and use of your property than you 20 do yourself. There have been many horror 21 stories about people having their life savings 22 destroyed by some bureaucratic action which 23 perhaps doesn't benefit anyone but satisfies the 4577 1 interest of certain groups who feel it is the 2 job of the anointed to tell everyone else what 3 to do with their lives and their property. 4 Mr. President, I don't feel that 5 way, and I feel that we do need some protection, 6 some oversight, some looking at the possible 7 effects of laws, rules and regulations, before 8 they are put into effect in order to protect the 9 rights of those who own the property and pay 10 taxes on the property and feel that they have 11 certain objectives to use that property with 12 which government is capriciously interfering. 13 SENATOR LEICHTER: Senator, thank 14 you. 15 ACTING PRESIDENT KUHL: Senator 16 Leichter. 17 SENATOR LEICHTER: Senator, where 18 did this bill originate? Is this something that 19 came from the Montana Militia? 20 SENATOR JOHNSON: Mr. President, 21 I think Senator Leichter has an interesting 22 question there. I don't think that's where it 23 came from, but I think there is no doubt about 4578 1 it that people who feel aggrieved by actions of 2 government in some cases feel the only solution 3 is to resort to use of arms. I don't believe 4 that, Mr. President. I believe the opposite is 5 true, and I believe it's up to the government to 6 put in place proper laws that we do not 7 disaffect great numbers of our electorate, of 8 our citizenry to which they feel there's no 9 recourse except the recourse of arms. 10 ACTING PRESIDENT KUHL: Senator 11 Leichter. 12 SENATOR LEICHTER: Senator 13 Johnson, if you would be so good as to continue 14 to yield. 15 ACTING PRESIDENT KUHL: Senator 16 Johnson, do you continue to yield? 17 SENATOR LEICHTER: And I 18 apologize if I, you know, make sort of a snide 19 comment about the bill, but I'm sort of puzzled 20 by it because, Senator, it's my understanding 21 now that both under the New York and the U.S. 22 Constitution that if there is a taking of 23 property that that may not be done except under 4579 1 due process of law. 2 Is that not the case? 3 SENATOR JOHNSON: It's kind of 4 interesting because -- because there are many 5 people who don't agree with the operation of the 6 law, whether it's due process or not, and I will 7 just give you a little example. 8 We have an area in Long Island 9 called the Pine Barrens. There was a lot of 10 agitation to protect the Pine Barrens. What we 11 actually did was take tens of thousands of acres 12 of property and put it constructively in the 13 public domain. We didn't buy the property. We 14 just said you can't use it for anything, and 15 people are paying taxes on that. They have 16 owned that property for years. They are very 17 upset. They're hiring lawyers, trying to sue, 18 because they feel they have had a taking by 19 government. 20 You know, the Constitution says 21 private property shall not be taken for public 22 use without just compensation. Nobody bought 23 their property, Senator. Just said, "We created 4580 1 a new area in which nobody can use their 2 property, and do what you want to us," and now 3 they are going to have to resort to the courts. 4 They are not being protected by the Constitution 5 which they think protects them. 6 SENATOR LEICHTER: If Senator 7 Johnson will continue to yield. 8 ACTING PRESIDENT KUHL: Senator 9 Johnson, do you continue to yield? 10 SENATOR LEICHTER: Senator 11 Johnson, are you trying to upset all of the 12 zoning laws that we have in the state of New 13 York and the land use law? Because it could 14 well happen, Senator, that somebody buys a piece 15 of property and that government comes along and 16 it zones the property in a particular way. It 17 may say you can't have a glue factory there. 18 Are you saying that the person is then in a 19 position to say, "Well, that's exactly what I 20 wanted to do. I wanted to have a glue factory 21 there, and now that is an unlawful taking"? 22 SENATOR JOHNSON: Senator, you 23 know there is no question that there are a lot 4581 1 of laws that we have not -- that we have passed 2 that diminished property rights to some extent. 3 Zoning is one of those property rights. 4 Sometimes I wonder about zoning, whether it 5 protects us or whether it simply makes an 6 opportunity for a lawyer to figure out a way to 7 subvert or go around that zoning, so he can make 8 himself a living. That's a question that's 9 always bothered me. We're not talking about 10 that today. 11 I think what we're saying here, 12 Senator, is we're going to amend the 13 Administrative Procedure Act to say, if the rule 14 makers see when they make their rules that there 15 would be a substantial diminishing of property 16 rights, then they have to consult with the 17 Attorney General to see if this would, indeed, 18 be serious enough to call it a taking and in 19 what manner they are going to compensate the 20 property owners who are affected by this 21 regulation. 22 SENATOR LEICHTER: Senator 23 Johnson, if you will continue to yield. 4582 1 Senator, I think there is a 2 problem or an area where maybe we need 3 legislation, and I want to get to that in a 4 moment, but I don't think your bill does 5 anything like what you say it does. 6 If I read your bill, it defines 7 private property right protection analysis. 8 This is Section 202(e), starting at line 14 on 9 page 1. It says, "A constitutional taking shall 10 mean that due to an agency's rule private 11 property could be deemed taken by operation of 12 such rule." Now, when you say "taken," are you 13 referring to a transfer of title. 14 SENATOR JOHNSON: No. We're 15 talking about a de facto taking, when the 16 property cannot be utilized for any substantial 17 benefit by the owner, that would be considered a 18 taking and, as such, would be a violation of law 19 without being compensated under our 20 Constitution. 21 SENATOR LEICHTER: With all due 22 respect, Senator, that isn't what it says. It 23 says, "a taking." "Taking," I think is a fairly 4583 1 clear word. You don't say de facto taking. You 2 don't say an impairment of property rights. It 3 seems to me that you say -- you say "taken". 4 "Taken" means transfer of title. Transfer of 5 title, the state or whoever takes the property, 6 if it's a local government or so on, both under 7 the state Constitution and under the federal 8 Constitution, can only do so under due process 9 of law, and they have to compensate the owner 10 for the fair property value. 11 SENATOR JOHNSON: Senator, if you 12 would further enlighten me by making reference 13 to my original situation, which is not the 14 genesis of this bill but the Suffolk County Pine 15 Barrens, where the government said, "You can not 16 develop this land," is that a taking or what is 17 it? They still own the property. They can't 18 use it for anything. Is that a taking? Nobody 19 will buy it because there's no -- in fact, it 20 was bought by the government, actually. It was 21 bought by the government or was told, "You can 22 not develop any property in this area." There's 23 both things. Eventually, the government plans 4584 1 to buy this property but they haven't bought it 2 yet. So, meanwhile, they say you can't use it 3 for anything. Is that a taking? I think it's 4 essentially a taking because they're told they 5 can't use it and, "Some day we'll buy it when we 6 get the money and we'll pay you for it." 7 Meanwhile, what is it? 8 SENATOR LEICHTER: It's 9 interesting - 10 ACTING PRESIDENT KUHL: Senator 11 Leichter, you are asking Senator Johnson to 12 continue to yield? 13 SENATOR LEICHTER: Yes. 14 ACTING PRESIDENT KUHL: Senator 15 Johnson, do you continue to yield? 16 SENATOR JOHNSON: Yes. 17 ACTING PRESIDENT KUHL: Senator 18 yields. 19 SENATOR LEICHTER: Senator 20 Johnson, it's interesting, because yesterday, at 21 a town meeting, afterwards, one of my 22 constituents came up to me, said, "You got to 23 help me. There's a lot of people like me who 4585 1 are constituents of yours. We have property in 2 the Pine Barrens, and they are taking it and 3 they are not going to compensate us." I said, 4 "My dear constituent, that's impossible. They 5 can't do that under the law." 6 But now that I listen to you, I 7 understand what it is that she was talking 8 about, and what it is -- tell me if I'm correct 9 -- that we have said, and I guess we passed 10 state legislation on it that said that -- or 11 authorized Suffolk County to take the property, 12 and I guess Suffolk County has said we're going 13 to take the property but it said we're going to 14 take it ten years from now, fifteen years from 15 now. In the meantime, these owners can't build 16 on it, and what you are saying is they can't be 17 compensated at the present time, or at least you 18 believe that under the current law they can't be 19 compensated at the present time, while there 20 obviously has been an impairment of the value of 21 their property. Is that what you are aiming 22 at? 23 SENATOR JOHNSON: That's right. 4586 1 That's why I tell you it's de jure de facto. 2 It's the fact that you can't use their property. 3 SENATOR LEICHTER: Mr. 4 President. On the -- on the - 5 ACTING PRESIDENT KUHL: Senator 6 Leichter, on the bill. 7 SENATOR LEICHTER: On the bill. 8 Well, I think we have come a long way, Senator 9 Johnson, from the Montana militia, and I think 10 -- in all fairness, I think you have put your 11 finger on what is a problem. It's a problem 12 that is in sort of an emerging area of the law 13 where we are developing a concept known as 14 constructive taking, where, in effect, 15 government takes certain action which really so 16 impairs the owner's property rights that the 17 property has lost its value, and I think there's 18 a place for a bill. 19 But I think you could have a 20 totally different and much more effective bill, 21 Senator. I really submit to you that this bill, 22 well intentioned as it is, doesn't deal with the 23 problem. The difficulty is in New York State, 4587 1 the Court of Appeals, years ago, took the 2 position that there can be no constructive 3 taking, that you have to have an actual taking. 4 Now, that has been -- both in New 5 York and on the federal level, that concept has 6 been changed, and there were recent U.S. Supreme 7 Court decisions, one of them, I think, involving 8 -- trying to remember. I think it was a 9 property out West, where there was a particular 10 zoning ordinance which the Court found 11 unreasonable and which so diminished the value 12 of the property that the U.S. Supreme Court said 13 this was a constructive taking and, under the 14 5th Amendment or the 14th Amendment, 15 compensation had to be paid. 16 I would say that rather than go 17 through the complicated procedure of rule making 18 which I don't think attacks it, it may make a 19 lot of sense for us to pass a bill which says 20 that there can be constructive taking of 21 property to try to define what constructive 22 taking of property is, because I think there are 23 instances where -- I agree with you -- where 4588 1 government has taken such action that it's 2 really made it impossible for the property owner 3 to receive any value of the property. 4 I will give you an example which 5 is not quite my district, but there's something 6 called the 42nd Street Redevelopment plan that's 7 run by the UDC. In 1983, they announced that 8 they were going to take property as part of the 9 renewal of 42nd Street. It's now 1996. They 10 haven't taken the property. They recently came 11 out with a statement saying that they think they 12 will take the property in the year 2007. In the 13 meantime, the owner can't sell his property. 14 If you will yield to a question. 15 I assume you want to address that case where it 16 certainly seems unjust to keep the owner from 17 getting the benefit that he wants from his 18 property. Is that what you have in mind? 19 SENATOR JOHNSON: Senator, yes. 20 That's it, and while I -- I do have something on 21 the second page here, Senator, how to determine 22 when a rule making has taking implications, et 23 cetera. 4589 1 I might also add as another 2 aside, and this would be part of my response to 3 you, that the federal government has gone about 4 these things in a different way by saying, 5 essentially, that if you diminish the property 6 value by 25 percent or more it's a taking and 7 you have to pay for the property. 8 So there are many -- many irons 9 in the fire right now. We're trying to deal 10 with the takings by agency regulations, takings 11 by law, and so forth. This is just one solution 12 which we have come up with, Senator. I think 13 it's a step in the right direction, although 14 certainly other bills could be drafted to deal 15 with the situation. I would certainly be 16 interested in anybody else's initiative in this 17 field. 18 SENATOR LEICHTER: Senator 19 Johnson, if you would yield to another question. 20 SENATOR JOHNSON: Yes. 21 ACTING PRESIDENT KUHL: Senator 22 yields. 23 SENATOR LEICHTER: Are you really 4590 1 -- I wonder whether you're really dealing with 2 the Pine Barrens situation or whether you're 3 dealing with a section where a local government 4 does this sort of prohibitive action. In the 5 Pine Barrens, isn't it the action of Suffolk 6 County that made this property either worthless 7 or substantially less valuable? 8 SENATOR JOHNSON: Yeah, it was an 9 action of this Legislature which did that, and 10 we're all a party to it, and we understand that. 11 SENATOR LEICHTER: Right. 12 SENATOR JOHNSON: You know? And 13 this is just dealing, essentially, with agency 14 rule making, which has been another source of 15 problem, rule making many times in excess of 16 that legally permitted by law but, nevertheless, 17 which affects the person and he has to fight to 18 regain those rights. 19 SENATOR LEICHTER: Senator, if 20 you would yield again. If your bill were law 21 now, it would do absolutely nothing for the 22 people in the Pine Barrens because that was by 23 operation of the State Legislature, maybe 4591 1 implemented by Suffolk County. There was no 2 state agency that did it. 3 SENATOR JOHNSON: Precisely. And 4 I said to you that was an aside. The Pine 5 Barrens was an illustration of how government 6 takes and diminishes our use of property without 7 compensation, but this bill doesn't deal with 8 that. This bill deals with administrative 9 agencies, regulatory agencies. 10 SENATOR LEICHTER: But, Senator, 11 if you will continue to yield. 12 You agree with me the problem is 13 not just state agencies. It can also be local 14 government. It can be, as you pointed out, this 15 very state Legislature that did something that 16 probably denied people their property rights. 17 Senator Johnson, my question is 18 why not draft a bill that deals with 19 constructive taking -- and I think that would be 20 very appropriate -- but then apply it across the 21 state? Why just state agencies? Why shouldn't 22 it apply also to local governments, and even 23 this Legislature? Why don't we then protect all 4592 1 property owners? 2 SENATOR JOHNSON: Well, Senator, 3 I think we should. I certainly think that 4 agencies going beyond the statute which they 5 intend to implement, probably they are at 6 fault. We're at fault in some cases. Maybe we 7 should consider other legislation such as the 8 federal legislation which deals with the 9 diminishing of property rights, irrespective of 10 what level of government or what agency puts 11 that in place. I certainly agree with you. 12 As I made reference in my 13 original discussion, the Declaration of 14 Independence made some reference to life, 15 liberty, and property, and we put down pursuit 16 of happiness instead. That was the consensus 17 opinion. But I think your life and your liberty 18 are considerably enhanced by the right to use 19 your property as you see fit. 20 SENATOR LEICHTER: Mr. President, 21 on the bill. 22 I have no problem at all with 23 Senator Johnson's broad statement of rights and 4593 1 liberties. In fact, now that we go into the 2 bill and I see what he is aiming at, I think 3 there is a problem, and I think it cries for 4 correction. 5 I would urge Senator Johnson very 6 strongly to withdraw this bill, to have it apply 7 across this state, because I think his approach 8 is very convoluted to do it by administrative 9 agencies. I haven't studied the bill 10 carefully. I just read it as we were debating 11 it. But I'm not sure that you're protecting 12 property owners, as you would. 13 I would strongly urge you, in 14 view of the fact that I think, Senator Johnson, 15 that our Court of Appeals has not gone as far as 16 the U.S. Supreme Court on this issue. Of 17 course, the U.S. Supreme Court decision 18 certainly applied also to local, to all the 19 states, but it seems to me that while I'm not 20 always in agreement with this Court that they 21 set forth some very good definitions as to what 22 constitutes a constructive taking. 23 It may make a lot of sense to use 4594 1 that language to put it in the statute, to have 2 it apply -- don't depend on the rule making, 3 that there be this rule making and then the 4 agency would have to determine it, but let's 5 give the authority to the courts of this state 6 where there is this sort of taking as I 7 described on 42nd Street. And, I'm not as 8 familiar with the Pine Barrens situation, but as 9 you described it, it may be the same thing, and 10 it may be unfair that these people have no 11 recourse with the courts at the present time, 12 and give them recourse. 13 I certainly agree with you that 14 certain action of government that is directed at 15 particular owners and denies them their 16 ownership rights ought to be compensated. I 17 think government has a right do it, but I think 18 government then has an obligation to pay for it, 19 and I wouldn't approach it through rule making. 20 I would just authorize the courts of this state, 21 the Court of Claims, to hear these cases, and I 22 would think that would be a much better, much 23 clearer way to proceed, Senator Johnson. 4595 1 I would be very happy to work 2 with you on it because I had recent occasion, as 3 I told you, on the situation involving somebody 4 on 42nd Street who came to me and said, 5 "Leichter, it's not fair. In '83 they came to 6 me and said they were going to take my 7 property. Now it's 1996. Last year, they said 8 they weren't going to take it until the year 9 2002 or 2007, I forget which it is, and I can't 10 use my property. Nobody will buy it because 11 they know the state is eventually going to come 12 in or it may not come in. Why shouldn't I have 13 the right to be compensated?" 14 I researched the issue briefly, 15 and I thought there was a real question whether 16 the courts would entertain such a case. Maybe 17 we ought to tell them that they should. I would 18 think that's a much better approach and much 19 broader than your bill. I would be happy to 20 work with you on that. 21 SENATOR JOHNSON: Senator, I 22 appreciate the offer. I'm glad you are 23 sensitive to it, and it only takes an 4596 1 illustration in our own back yard to demonstrate 2 that there's a need for some change to it. 3 There's one problem with suing. 4 The government's got all the lawyers and all the 5 time in the world. Some people have finite 6 lifetimes and finite economic resources and 7 can't go ahead with all the lawsuits they need 8 to defend their own rights in instances like 9 this. 10 So we're asking for a rule to be 11 analyzed beforehand and see if it has 12 constitutional taking implications; and if it 13 does, consultation with the Attorney General and 14 decide whether these rules are appropriate or 15 not, and instead of forcing people, if their 16 property is diminished and they can't use it, to 17 go to court and try to outlive the government, 18 we would like to have these rules analyzed 19 beforehand so that negative rules don't take 20 place which impact people in a harmful way and 21 without any particular benefit perhaps to the 22 state or society as a whole. 23 Senator, I think it's good, but I 4597 1 think it's time we acted on these things. I 2 certainly welcome Senator Leichter's interest, 3 and I would like to work with him on future 4 legislation, perhaps similar to the federal 5 legislation which sets a dollar amount or 6 percentage amount of diminution which would be 7 compensated promptly. But this bill, I think, 8 should go in the interim, in order to get the 9 message out that this Legislature is zealous in 10 protecting the property rights of the citizens 11 of our state. 12 ACTING PRESIDENT KUHL: Senator 13 Dollinger. 14 SENATOR DOLLINGER: Mr. 15 President, just on the bill briefly. 16 I agree with Senator Leichter. I 17 think that the concept that we need is a better 18 definition of constructive taking. 19 The other thing I disagree with 20 this bill, Mr. President, is the inclusion of 21 the phrase, "private property." It doesn't just 22 affect real property in the Pine Barrens but, my 23 gosh, it affects everything. Every tax is a 4598 1 taking of my private property and everybody 2 else's. Would a tax be subject to this 3 constitutional review since you are taking 4 people's money? 5 What about leash laws? You are 6 obviously curbing their ability to use their 7 private property, their dog, and where it can 8 go. What about noise restrictions? We put 9 noise restrictions all the time. Agencies put 10 noise restrictions all the time. That obviously 11 interferes with private property, with personal 12 property. Your ability to run a lawn mower at 13 1:00 o'clock in the morning, your ability to 14 blow your horn in the neighborhood at 10:00 15 o'clock at night. 16 It seems to me that this is far 17 too broad and is really a baseball bat going 18 after a significant fly but nonetheless a fly. 19 The other thing is, with all due respect, 20 Senator Johnson, if what you want to avoid is 21 litigation, you are dumping an enormous amount 22 of time and effort into the regulatory process. 23 This bill will cost a fortune for the Attorney 4599 1 General and for the Department at issue to do 2 the kind of detailed analysis. 3 This bill, if it became law, 4 would virtually void the ability of the state to 5 put any regulations on anything. While there 6 may be some people in this chamber who favor 7 that approach, let them stand up and say that. 8 Let's not do it through a subterfuge of an 9 overly complicated and, frankly, in my opinion 10 largely wasteful effort that would be required 11 from this bill. 12 If it's an unconstitutional 13 taking, sue. The courts of this state have 14 always upheld property rights, have always had a 15 broad definition of property rights in this 16 state. If we want to change that and give them 17 further guidance, let's do what Senator Leichter 18 said. But in the meantime, let's not do 19 something as complicated and as overblown as 20 this. 21 ACTING PRESIDENT KUHL: Senator 22 Oppenheimer. 23 SENATOR OPPENHEIMER: Thank you. 4600 1 Mr. President, I just want to 2 underscore what has already been said, which is 3 that, you know, there is a problem which has 4 been expressed concerning the taking of land, 5 the fair market value for that land once it's 6 been targeted. But to discuss mitigation 7 actions, to discuss alternatives to the proposed 8 actions, I mean this gets us into such an 9 unwieldy state that each agency that has to do 10 this is going to find themselves overwhelmed. 11 There is no way that each agency will be able to 12 establish guidelines, particularly now that 13 we're cutting back on the number of people in 14 our agencies and indeed in the environmental 15 arena in the Department of Environmental 16 Conservation. We have been cutting back 17 sizably. There is no way that this could be 18 handled by the limited staff, and we're not in 19 an expanding mode at the present time as far as 20 our employment by the state government. 21 It's just so unwieldy that it 22 would very badly impact the environment, and 23 that is why the Environmental Planning Lobby, 4601 1 now known as the Environmental Advocates, gives 2 this three smokestacks because it will simply 3 tie their hands forever under this new 4 burdensome, unnecessary regulation. 5 ACTING PRESIDENT KUHL: Is there 6 any other Senator wishing to speak on the bill? 7 SENATOR JOHNSON: Mr. President. 8 ACTING PRESIDENT KUHL: Yes, 9 Senator Johnson. 10 SENATOR JOHNSON: I would just 11 like to correct a misapprehension which Senator 12 Dollinger enjoys for the moment but which he 13 will not enjoy subsequently, because on the 14 first page of this bill, it doesn't refer to 15 your dog doing his business on the sidewalk as a 16 constitutional right which will be enhanced or 17 diminished in any way by this bill. 18 This says, "For the purposes of 19 this section, private property shall mean all 20 real or personal property in this state that is 21 protected by either the 5th or the 14th 22 Amendment of the Constitution of the United 23 States or Section 7 of Article I of the New York 4602 1 State Constitution. 2 So those are the items of 3 property which are protected and not other 4 extraneous things which were referred to 5 previously. 6 Thank you. 7 ACTING PRESIDENT KUHL: The 8 Secretary will read the last section. 9 THE SECRETARY: Section 3. This 10 act shall take effect on the 180th day. 11 ACTING PRESIDENT KUHL: Call the 12 roll. 13 (The Secretary called the roll.) 14 Senator Paterson to explain his 15 vote. 16 SENATOR PATERSON: Mr. President, 17 we would like a slow roll call on this. 18 ACTING PRESIDENT KUHL: Are there 19 five members in the chamber who would like to 20 see a slow roll call? 21 Seeing five stand, the Secretary 22 will call the roll. 23 Senator Johnson. 4603 1 SENATOR JOHNSON: Mr. President, 2 I would like you to withdraw the roll call. Lay 3 the bill aside. 4 ACTING PRESIDENT KUHL: Roll call 5 is withdrawn. The bill is laid aside by the 6 sponsor for the day. 7 Secretary will continue to call 8 the controversial calendar. 9 THE SECRETARY: Calendar Number 10 680, by Senator Levy, Senate Print 2591B, an act 11 to amend the Public Authorities Law and the 12 Administrative Code of the City of New York, in 13 relation to establishing the Committee on 14 Personal Security. 15 ACTING PRESIDENT KUHL: Senator 16 Levy, Senator Leichter has asked for an 17 explanation of Calendar Number 680. 18 SENATOR LEVY: Senator Leichter, 19 I think that after we talked about this bill 20 last year, you voted for the bill. As a result 21 of the -- the genesis of this bill has to do 22 with the merger of the Transit Authority Police 23 Department into the New York City Police 4604 1 Department, and what our concern was, as I'm 2 sure you and the other people who represent the 3 City as well as people who represent the suburbs 4 and those that don't represent -- visitors who 5 come to the City and use the Transit Authority 6 from outside the state of New York, is that we 7 have an oversight -- we have an oversight on the 8 continuing crime problem in the subway system 9 and with buses in the City of New York, and what 10 this bill does is to require the Authority as 11 well as the constituent agencies, the Long 12 Island Rail Road and Metro-North, to have 13 standing committees within the operation or the 14 Authority to provide continuing oversight. 15 Thank God, today, crime in our 16 mass transit system downstate is escalating 17 downward, and let's pray that the numbers 18 continue to move in that direction, but this is 19 a safeguard so that there is a continuing 20 oversight, and these committees are designed to 21 provide that oversight; and if, heaven forbid, 22 things go in the other direction, that we've got 23 a persistent, continuing oversight to be sure 4605 1 we're dealing with the problems. 2 And this bill is an outgrowth of 3 a very, very extensive report we did on crime in 4 the New York City subway and bus systems when 5 crime escalated out of control in the late '80s, 6 and we didn't have then Commissioner Bratton who 7 headed the Transit Authority Police Department 8 and Chief O'Connor to deal with the problems. 9 ACTING PRESIDENT KUHL: Senator 10 Leichter. 11 SENATOR LEICHTER: Yes, Mr. 12 President. If Senator Levy would yield, please. 13 SENATOR LEVY: Yes, certainly. 14 ACTING PRESIDENT KUHL: Senator 15 yields. 16 SENATOR LEICHTER: Senator, the 17 problem I have with this bill -- and it's set 18 forth well in a memorandum of opposition by the 19 New York Chamber of Commerce and Industry. 20 There's another memorandum of opposition by the 21 city of New York. I think they both feel that 22 it's an infringement and an interference with 23 the city of New York which now, as you know, has 4606 1 taken over the operation of the Transit 2 Authority Police. Whether they should or 3 shouldn't have, that issue has been settled, and 4 the city of New York believes, as does the 5 Chamber of Commerce and Industry, that this will 6 just create problems because you will have in a 7 sense divided responsibility and divided 8 authority over the policing of the subways and 9 the buses in the City of New York. 10 SENATOR LEVY: I will be happy to 11 respond to that. Number one, the memorandum of 12 opposition that comes from the City Chamber of 13 Commerce, obviously the genesis of the -- of 14 that memorandum is Robert Kiley, and former head 15 of the Authority Kiley. It was on his watch - 16 it was on his watch when crime escalated out of 17 control in the Transit Authority in the 18 operations of the Transit Authority, and he put 19 his head in the sand and didn't provide 20 leadership to deal with this problem when he was 21 there, and he obviously doesn't like this 22 legislation, and, obviously, the mayor doesn't 23 like it, because there's -- there will be a 4607 1 continuing oversight that relates to crime, 2 whether it be in the subway system or at the bus 3 system, and that type of oversight goes at its 4 heart as to whether there should have been an 5 independent Transit Authority Police Department 6 to continue the job in fighting crime in the 7 system or a merger, and that's why the mayor 8 doesn't like the bill. 9 SENATOR LEICHTER: Mr. President, 10 on the bill. 11 ACTING PRESIDENT KUHL: Senator 12 Leichter, on the bill. 13 SENATOR LEICHTER: Senator Levy 14 is indeed correct. I voted for it last year. 15 But last year, the merger hadn't been achieved 16 yet. I wasn't one of those who felt that the 17 merger would be in the interest of the riders of 18 the City subway and buses or people who lived in 19 the New York City public housing projects. It 20 may well be that I was wrong because I think, so 21 far, the merger has worked out reasonably well, 22 and I think crime, indeed, in the subways and 23 buses even before the merger, has significantly 4608 1 declined. 2 SENATOR LEVY: But, Senator 3 Leichter, all this bill does is to require the 4 Authority to have a committee, whether it's with 5 the Transit Authority, the Long Island Rail Road 6 or Metro-North, to continue to provide oversight 7 on how crime is being dealt with, whether it's 8 the Long Island Rail Road Police Department, the 9 Metro-North Police Department, and the City 10 Police Department. 11 SENATOR LEICHTER: Senator Levy, 12 the answer to that is that either you're doing 13 -- if all your bill does is to set up a 14 committee that doesn't do anything and doesn't 15 mean anything, I don't know why you put in the 16 bill. 17 SENATOR LEVY: Senator Leichter, 18 these are - 19 ACTING PRESIDENT KUHL: 20 Gentlemen! Gentlemen! I'd appreciate it if we 21 go through a question and answer. Apparently, 22 you don't have the interest of many other people 23 other than the two of you and I, because the 4609 1 noise level in this room is extremely high, but 2 I would appreciate it if you would keep the 3 questioning and answering going through the 4 chair. 5 SENATOR LEVY: Senator Leichter, 6 this is not just another committee. What it is 7 is committees made up for the component agencies 8 of the MTA, made up by members of the MTA Board 9 whose job as members of those committees will be 10 to provide continuing oversight as to how the 11 Long Island Rail Road is dealing with crime in 12 the system, Metro-North is dealing with it and 13 the Transit Authority. 14 SENATOR LEICHTER: Mr. 15 President. Senator Levy, thank you. I 16 appreciate what you are trying to do. I think 17 that the objections that have been voiced by the 18 City of New York and the Chamber of Commerce are 19 well taken. 20 First of all, I don't know 21 whether it's appropriate or necessary for this 22 body to tell the MTA what committees to set up 23 and who should be on the committees. That's 4610 1 really a function of the members of the MTA. If 2 they fail to carry out their duties, if they 3 don't have their requisite numbers of committees 4 that they need in order to divide up the work 5 among them, then maybe we need other members, 6 but I would certainly think that they could 7 function without our telling them you must have 8 a committee on this and a committee on that. 9 But I think the real purpose of 10 this committee is to have certain supervision 11 and control over police function of the subways 12 and the buses which really are the prerogatives 13 of the New York City Police Department. 14 I just want to point out that 15 last year this bill was opposed by Senators 16 DeFrancisco, DiCarlo, Hoffmann, Holland, and 17 Maltese. I think, Senator, since the merger has 18 now been accomplished, it's gone ahead, it seems 19 to be working. The mayor says don't interfere 20 with us in this regard. I mean, I find -- I'm 21 sort of sorry for Rudy Giuliani. All this time 22 in this Legislature all he's got to defend him 23 is Franz Leichter. He's got to do a little 4611 1 better than that, so I would hope that other 2 members of his party would defend him. He has 3 the right to govern the city of New York, as 4 every mayor should have that right. 5 ACTING PRESIDENT KUHL: Secretary 6 will read the last section. 7 THE SECRETARY: Section 5. This 8 act shall take effect on the 30th day. 9 ACTING PRESIDENT KUHL: Secretary 10 will read the last section. 11 SENATOR DiCARLO: Before I 12 explain my vote, on the bill. 13 ACTING PRESIDENT KUHL: Senator 14 DiCarlo. 15 SENATOR DiCARLO: Senator 16 Leichter, I agree with you. 17 ACTING PRESIDENT KUHL: The 18 Secretary will read the last section. 19 SENATOR LEVY: Explain my vote. 20 ACTING PRESIDENT KUHL: Secretary 21 will read the last section. 22 SENATOR LEVY: Yeah. 23 THE SECRETARY: Section 5. This 4612 1 act shall take effect on the 30th day. 2 ACTING PRESIDENT KUHL: Call the 3 roll. 4 (The Secretary called the roll. ) 5 ACTING PRESIDENT KUHL: Senator 6 Levy to explain his vote. 7 SENATOR LEVY: Yes, Senator 8 Leichter, I hope you understood that this bill 9 does not -- this bill not only provides for a 10 committee to have oversight over the Transit 11 Authority, it also deals with Metro-North and 12 the Long Island Rail Road. The mayor may be 13 personalizing as it relates to the Transit 14 Authority portion of this bill, but this is a 15 comprehensive bill dealing with all of the 16 components of the system. 17 I vote aye. 18 ACTING PRESIDENT KUHL: Senator 19 Levy will be recorded in the affirmative. 20 Announce the results. 21 THE SECRETARY: Those recorded in 22 the negative on Calendar Number 680, Senators 23 DeFrancisco, DiCarlo, Goodman, Leichter, 4613 1 Onorato, Seward. Ayes 50, nays 6. 2 ACTING PRESIDENT KUHL: The bill 3 is passed. 4 Senator Oppenheimer, why do you 5 rise? 6 SENATOR OPPENHEIMER: I'd 7 appreciate being recorded in the negative with 8 unanimous consent on Calendar 656. 9 ACTING PRESIDENT KUHL: Without 10 objection, hearing no objection, Senator 11 Oppenheimer will be recorded in the negative on 12 Calendar Number 656. 13 Secretary will continue to call 14 the controversial calendar. 15 THE SECRETARY: Calendar Number 16 731, by Senator Velella, Senate Print Number 17 3763, an act to amend the Insurance Law, in 18 relation to agent termination. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 4614 1 roll. 2 (The Secretary called the roll. ) 3 ACTING PRESIDENT KUHL: Announce 4 the results when tabulated. 5 SENATOR WALDON: Mr. President. 6 ACTING PRESIDENT KUHL: Senator 7 Waldon, to explain your vote? 8 SENATOR WALDON: Are we beyond 9 the point of -- of a question or two? I was busy 10 at the time with my colleague. 11 ACTING PRESIDENT KUHL: Senator 12 Waldon, to explain his vote. 13 SENATOR WALDON: Thank you very 14 much, Mr. President, my colleagues. 15 I received a call from some of 16 the people who live and work in my area who are 17 insurance agents and they were deathly afraid 18 that the reporting system permitted under this 19 bill would cause them to lose a license to 20 practice because they would have no recourse. 21 I wished the opportunity to ask 22 Senator Velella about that, but when I heard 23 from these groups of black businessmen, I have 4615 1 to be empathetic with their plight because they 2 are so fearful of what this really means. 3 The first time I read the bill, I 4 think it was last year, and voted on it, I did 5 not see the nuances at all, but they are really, 6 really concerned about it. So as a result of 7 those conversations and my now current review of 8 the bill, I will have to listen to what they've 9 said, listen to what they perceive as potential 10 pain and suffering in terms of their ability to 11 function as agents, and vote no. 12 ACTING PRESIDENT KUHL: Senator 13 Waldon will be recorded in the negative. 14 Announce the results when 15 tabulated. 16 THE SECRETARY: Those recorded in 17 the negative on Calendar Number 731 are Senators 18 DeFrancisco, Dollinger, Espada, Seward, Smith, 19 Waldon, also Senator Present. Ayes 49, nays 7. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 Senator Hoblock, that completes 23 the controversial calendar. 4616 1 SENATOR HOBLOCK: Mr. President, 2 is there any housekeeping? 3 ACTING PRESIDENT KUHL: Yes, 4 there is. If we could return to motions and 5 resolutions, Senator Farley. 6 SENATOR FARLEY: Thank you, Mr. 7 President. 8 On page 30, I offer the following 9 amendments to Calendar Number 381, Senate Print 10 3520 -- this is on behalf of Senator DeFrancisco 11 -- and I ask that that bill retain its place on 12 the Third Reading Calendar. 13 ACTING PRESIDENT KUHL: 14 Amendments are received and adopted. 15 We have some substitutions at the 16 desk too, Senator Hoblock, if we could read 17 those. Ask the Secretary to read. 18 THE SECRETARY: On page 44, 19 Senator Lack moves to discharge from the 20 Committee on Judiciary Assembly Bill Number 21 8533-A and substitute it for the identical 22 Senate Bill 6752. 23 On page 49, Senator Libous moves 4617 1 to discharge from the Committee on Mental Health 2 and Developmental Disabilities Assembly Bill 3 9826 and substitute it for the identical Senate 4 Bill 6632. 5 On page 60, Senator Trunzo moves 6 to discharge from the Committee on Civil Service 7 and Pensions Assembly Bill 9403 and substitute 8 it for the identical Senate Bill 7044. 9 On page 7, Senator Farley moves 10 to discharge from the Committee on Local 11 Government Assembly Bill 9678 and substitute it 12 for the identical Senate Bill 6721. 13 ACTING PRESIDENT KUHL: 14 Substitutions are ordered. 15 Senator Hoblock. 16 SENATOR HOBLOCK: Mr. President, 17 can we stand at ease for a few minutes, please. 18 ACTING PRESIDENT KUHL: Senate 19 will stand at ease for a few moments. 20 (The Senate stood at ease from 21 4:44 p.m. until 4:53 p.m.) 22 ACTING PRESIDENT KUHL: Senate 23 will come to order. 4618 1 Chair recognizes Senator Skelos. 2 SENATOR SKELOS: There will be an 3 immediate meeting of the Finance Committee in 4 Room 332 of the Capitol. 5 ACTING PRESIDENT KUHL: There 6 will be an immediate meeting of the Finance 7 Committee in the Majority Conference Room, Room 8 332. Immediate meeting of the Senate Finance 9 Committee in the Majority Conference Room, Room 10 332. Senate will continue to stand at ease. 11 (The Senate stood at ease from 12 4:54 p.m. until 6:20 p.m.) 13 SENATOR SKELOS: Mr. President, I 14 just want us to know we should be meeting 15 shortly. Unfortunately, the messages are not up 16 from the second floor yet. I do want to 17 apologize to the members for keeping them 18 waiting, but the messages will be here shortly, 19 and we do appreciate the members' indulgence. 20 So if we could just stand at ease for a short 21 moment. 22 ACTING PRESIDENT KUHL: We'll 23 stand at ease. 4619 1 SENATOR SKELOS: Please recognize 2 Senator Cook. 3 SENATOR COOK: Could I be 4 recorded in the negative on Calendar Number 731, 5 please. 6 ACTING PRESIDENT KUHL: Without 7 objection, hearing no objection, Senator Cook 8 will be recorded in the negative on Calendar 9 Number 731. The Senate will continue to stand 10 at ease. 11 (The Senate stood at ease from 12 6:22 p.m. until 6:44 p.m.) 13 ACTING PRESIDENT KUHL: The 14 Senate will come to order. 15 SENATOR SKELOS: Mr. President, 16 if we could return to reports of standing 17 committees for the report of the Finance 18 Committee. 19 ACTING PRESIDENT KUHL: There's 20 one at the desk. I'll ask the Secretary to 21 read. 22 THE SECRETARY: Senator Stafford, 23 from the Committee on Finance, offers up the 4620 1 following bill directly for third reading: 2 Senate Bill 7504, by the Commit 3 tee on Rules, an act making an appropriation for 4 the support of government. 5 SENATOR SKELOS: Move we accept 6 the report of the Finance Committee. 7 ACTING PRESIDENT KUHL: Motion is 8 to accept the report of the Finance Committee. 9 All those in favor signify by saying aye. 10 (Response of "Aye.") 11 Opposed nay. 12 (There was no response.) 13 The message is accepted. 14 SENATOR SKELOS: At this time, 15 I'd ask if we could take up 7504. 16 ACTING PRESIDENT KUHL: Ask the 17 Secretary to road. 18 THE SECRETARY: Senate Bill 7504, 19 by the Committee on Rules, an act making 20 appropriation for the support of government. 21 ACTING PRESIDENT KUHL: Senator 22 Skelos. 23 SENATOR SKELOS: Mr. President, 4621 1 is there a message of necessity and appropri 2 ation at the desk? 3 ACTING PRESIDENT KUHL: There 4 is. 5 SENATOR SKELOS: Move we accept 6 the message. 7 ACTING PRESIDENT KUHL: The motion 8 is to accept the message of necessity and 9 appropriation. All those in favor signify by 10 saying Aye. 11 (Response of "Aye.") 12 Opposed nay. 13 (There was no response.) 14 The message is accepted. 15 Secretary will read the last 16 section. 17 THE SECRETARY: Section 18. This 18 act shall take effect April 1st, 1996. 19 ACTING PRESIDENT KUHL: Call the 20 roll. 21 (The Secretary called the roll. ) 22 ACTING PRESIDENT KUHL: Announce 23 the results. 4622 1 THE SECRETARY: Ayes 57. 2 ACTING PRESIDENT KUHL: The bill 3 is passed. 4 Senator Skelos. 5 SENATOR SKELOS: Mr. President, 6 again on behalf of Senator Bruno, appreciate 7 very much the members' patience in waiting to 8 receive the message. 9 Is there any other housekeeping 10 at the desk? 11 ACTING PRESIDENT KUHL: All taken 12 care of. 13 SENATOR SKELOS: There being no 14 further business, I move we adjourn until 15 Tuesday, May 7th, at 3:00 p.m. sharp. 16 ACTING PRESIDENT KUHL: Without 17 objection, the Senate stands adjourned until 18 tomorrow, Tuesday, May 7, at 3:00 p.m. sharp. 19 (Whereupon at 6:45 p.m., the 20 Senate adjourned.) 21 22 23