Jerry Kopel


Oops! Sometimes the best of intentions go amiss without anyone's fault. Consider the situations facing Rep. Lola Spradley, R-Beulah and Rep. Matt Smith, R-Grand Junction.

Both of them want to regulate sellers of manufactured housing. Rep. Smith also wants to regulate installers of the housing. The Rep. Spradley bill, HB 1270 may be too costly. The Rep. Smith bill, which more or less has the support of the Dept. of Regulatory Agencies, may also be in trouble. And there is nothing Rep. Spradley nor Rep. Smith can do about it.

Colorado Revised Statute 24-34-104.1 states: "The general assembly shall not consider the regulation of more than five occupations or professions in any one session of the general assembly."

The regulation of sellers of manufactured housing may turn out to be the "sixth" occupation, and the regulation of installers would be the "seventh" occupation.

The key word is "consider" and the statute doesn't define it. But if we use the definition from Black's Law Dictionary, "consider" means: "To fix the mind on, with a view to careful examination; to examine; to inspect; to deliberate about and ponder over."

In the Oxford Illustrated Dictionary, it means: "Contemplate mentally, weigh the merits of; reckon with; be of opinion."

Under both the legal and nonlegal definitions, "consider" doesn't occur when a bill is introduced. Yes, the Speaker and the Senate President have to choose the committee where the bill will be heard, but "consider" in the statute is by the General Assembly, and not the Speaker or President. "Consider" could occur when the bill is heard in committee.

So far, I have found six bills, which as introduced, regulated new occupations or professions. Besides the two mentioned above, there is HB 1051 regulating naturopaths; HB 1131 regulating commercial feed manufacturers and commercial feed guarantors; HB 1302 regulating body piercers; and SB 99 regulating time share salesmen.

If "consider" is by committee hearing and decision, then Rep. Spradley's bill is the first loser. HB 1270 had a committee report date of Feb. 19th. That's one week later than any of the others except Rep. Smith's HB 1347.

So what happens if either HB 1270 or HB 1347 passes? Nothing, unless a seller or installer of manufactured housing decides he or she doesn't want to be regulated. Then a court will have to decide what CRS 24-34-104.1 means. Amending HB 1270 to state that the "the five occupations or professions rule doesn't apply" wouldn't really help, since it has already been "considered". And HB 1347 is simply redundant of the sixth occupation of manufactured housing seller.

Lawyers for HB 1270 or HB 1347 would argue "the General Assembly" means the entire body, not a portion of the body, and "consider" doesn't occur until the final vote in the final house.

But there's a problem with that approach. HB 1159, the 1996 bill in which the term "consider" appeared was a bill that repealed the Joint House-Senate Sunrise-Sunset Committee. So what was the INTENT of the bill?

The committee, from 1985 through 1995, heard numerous applications for new occupational or professional regulation. Its six members, four Republicans and two Democrats, would cull the requests down to a few bills that went to the legislature.

No one intentionally "skipped" the sunrise review. If such a bill did appear, committee members saw to it that the bill died early and went through the Sunrise process the following year.

There was concern that if the committee was abolished, the way would be open for legislators to toss a vast number of occupational bills before the legislature, consuming an enormous amount of time and effort.

The "five occupations or professions" language was to be the safety factor. The assumption was that the "invalidity" of further bills after the limit of five occupations or professions was reached would discourage the introduction of a measure.

If the five occupations were to be reached only after bills were heard in both the House and Senate, there would be no "safety factor". Lots of occupational regulation bills could be introduced, taking up an enormous amount of committee and floor time, and just the five "fittest" that made it to second reading in the second house would be the winners.

* * *

It was quite logical that Sen. MaryAnne Tebedo, R-Colo. Springs, would be the swing vote to kill HB 1290, the measure immunizing religious organizations from fiduciary liability to persons injured by acts of the clergy. Eleven years ago, then-Rep. Tebedo, as a member of the Sunrise-Sunset Committee, was chief House sponsor of the successful SB 17 concerning criminal penalties for sexual assault on a client by a psychotherapist.

Originally, the language of SB 17 was planned to be a part of the Sunrise-Sunset committee bill establishing a state grievance board for all psychotherapists, but it seemed a safer approach to have the criminal law as a separate bill.

In the committee we had ample evidence of criminal sexual abuse by some psychotherapists, and perhaps that, as well as present testimony, triggered Sen. Tebedo's decision.

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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