Regular Session - May 6, 1996
4518
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8 ALBANY, NEW YORK
9 May 6, 1996
10 3:09 p.m.
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13 REGULAR SESSION
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17 SENATOR JOHN R. KUHL, JR., Acting President
18 STEPHEN F. SLOAN, Secretary
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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