By the time most statehouses wrapped proceedings at the end of July, state lawmakers had approved nearly 29,122 of the approximately 171,608 bills introduced during the 2015-16 biennial session. Compare that to Congress who introduced 10,916 bills and resolutions and passed only 199 of them.
Newsflash: State legislatures are now almost 17 times more productive than Congress, and this year may be the most productive on record for the nation’s 2,000 state senators and 5,400 state representatives.
Thirty-eight state legislatures have already adjourned for the year, and four – Montana, Nevada, North Dakota, Texas – did not convene in 2016 at all because it was an even year.
Nevertheless, with lawmakers in eight states — Illinois, Massachusetts, Michigan, New Jersey, New York, Ohio, Pennsylvania, Wisconsin — in session year-round, the ongoing trend of huge productivity in the states continues unabated.
So what have they been focused on? Despite the quirks, discernible patterns, trends and anomalies can be sifted from the still-fuzzy data in these early returns.
As expected, marijuana legalization, abortion, drones, firearms, online sales taxes, Internet gaming, electronic cigarettes, state pre-emption, income equity, prison reform and religious freedom were among the issues most commonly addressed in 2016 by state legislatures.
Not surprising, New York and Illinois lawmakers have been the busiest during the 2015-16 biennial legislative session. New York lists 26,507 bills introduced during its still-underway two-year session, with 684 passed during the first six months of this year. Illinois has 13,762 bills introduced in its 2015-16 session with 4,543 passed by the lower house thus far in 2016.
Yet, neither New York nor Illinois were the most productive in terms of sheer volume of approved bills and resolutions. That distinction goes to Tennessee, which lists more than 3,300 pieces of legislation approved in 2016. Other by-the-numbers oddities include Hawaii lawmakers proposing more bills in their 2015-16 legislative sessions than their California counterparts — 5,718 to 5,071.
According to the Human Rights Campaign, more than 160 anti-LGBT bills have been introduced in 31 state legislatures in 2016. Most fall into two broad categories – religious freedom bills aimed at giving businesses and individuals the option to decline, for faith-based reasons, to do business with same-sex couples or other LGBT people, and bills preventing transgender people from using the sex-segregated restrooms, locker rooms and other facilities.
Twenty of 22 Religious Freedom Restoration acts proposed in 12 states failed to get out of committee. HB 348/SB 550, the North Carolina Religious Freedom Restoration Act, was approved on first readings in both chambers, and remains active, although it won’t advance until at least 2017. A similar bill in Michigan, SB 4, remains active in the Senate Judiciary Committee.
Eight proposals in six states that would have allowed magistrates, judges and clerks to refuse to perform marriages and/or issue marriage licenses based on their faith-based convictions never got out of committee.
Six of eight bills filed in eight states that would allow businesses to refuse to provide goods and services against same-sex couples, or any kind of marriage to which a business owner might object, also died in committee although the legislation remains active in committee in Mississippi and Ohio.
Other significant anti-LGBT or Religious Freedom bills include:
Mississippi: The Protecting Freedom of Conscience from Government Discrimination Act (HB 1523) passed the House in a 69-45 vote and was signed into law by Gov. Phil Bryant. The bill protects businesses and religious groups from legal challenge if they deny services such as counseling, wedding planning and adoption support to lesbian, gay, bisexual and transgender people when it’s based on “sincerely held religious beliefs or convictions.”
Georgia: The Free Exercise Protection Act (HB 757), giving faith-based organizations the option to deny services to gays and lesbians, was approved by the House in a 104-65 vote, and in the Senate in a 37-18 tally. Republican Gov. Nathan Deal vetoed the bill in June.
North Carolina: The proposed North Carolina Religious Freedom Restoration Act is languishing but alive in committee, but HB 2 – The Public Facilities Privacy & Security Act – was approved in the House by an 82-26 margin. It was also approved in the Senate in a 32-0 vote in which six senators abstained and 11 others walked out in protest. That same day, March 23, Gov. Pat McCrory signed it into law, the entire process taking 11 hours and 10 minutes.
Florida: HB 43, a Pastor Protection Act, was passed 82-37 in the House, 23-15 in the Senate, and signed into law in March by Republican Gov. Rick Scott. It allows churches, religious organizations, related organizations and individuals to not be legally required to solemnize any marriage or provide services, accommodations, facilities, goods or privileges, if doing so would violate their religious beliefs.
Kansas: The Campus Religious Freedom Bill (SB 175) was approved 81-41 in the House, 30-8 in the Senate and signed into law by Republican Gov. Sam Brownback. It prohibits postsecondary schools from taking action against religious student associations for rejecting members who don’t “adhere to the association’s sincerely held religious beliefs.”
Hundreds of marijuana-related bills addressing decriminalization, conviction expunging, medical-use, sentencing and corrections reform were introduced, heard, adopted or rejected in state legislatures in 2016. Yet recreational marijuana remains legal in only four states — Alaska, Colorado, Oregon, Washington — and the District of Columbia.
Despite nationwide momentum for legalization, state lawmakers remain hesitant to make recreational use legal. Of at least 17 legalization proposals submitted to state legislators in 2016, few emerged from committee for a floor vote.
Legalization bills remain in limbo in Arizona, Connecticut, Georgia, Hawaii, Illinois, Kentucky, Maryland, Michigan, Missouri, New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island and Wisconsin.
According to the National Council of State Legislatures (NCSL), ballot initiatives proposing full legalization were proposed in 17 states in 2016. Legalization initiatives qualified for November ballots in Nevada, Massachusetts and California, while similar measures are expected to be filed for initiatives in Arizona, California, Maine and Michigan, although they may not be presented to voters until 2017.
Some significant proposed legalization legislation did occur in:
Vermont: The state nearly became the first to legalize marijuana by legislative action rather than ballot initiative in 2015, and then again in 2016. Gov. Peter Shumlin favors legalization and in February, the Senate voted 17-12 to pass SB. 241.
However, the legalization bill was scrapped and replaced with a decriminalization bill by the House Judiciary Committee in April, where it remained when the legislature adjourned for the year.
Massachusetts: The Cannabis Regulation and Taxation Act of 2016 (HB 1561), which would regulate marijuana similarly to alcohol, was proposed in 2015 by Rep. Dave Rogers (D-Belmont) and Sen. Patricia Jehlen (D-Somerville) with bipartisan endorsement from 13 co-sponsors. On Jan. 6, the Legislature’s Joint Judiciary Committee staged a hearing on the proposal, but the bill has not advanced since.
Gov. Charlie Baker, Boston Mayor Marty Walsh, and House Speaker Robert DeLeo are among those who oppose the proposal. In April, they formed the Campaign for a Safe and Healthy Massachusetts Committee to spearhead the anti-legalization effort.
Pro-legalization forces believe they can circumnavigate the legislature with a referendum initiative. The Campaign to Regulate Marijuana Like Alcohol turned in nearly 115,000 signatures by the June 11 deadline to place a “Legalization, Regulation and Taxation of Marijuana” proposal on November’s ballot.
ONLINE VOTING REGISTRATION, RESTRICTIONS
According to the Brenner Center for Justice, in 2016 state legislatures considered at least 422 bills designed to enhance voting access in 41 states and the District of Columbia, while at least 77 bills to restrict access to registration and voting have been introduced or carried over from the prior session in 28 states.
At least 15 states considered expanding online registration legislation. Idaho, Mississippi, Rhode Island, Wisconsin and Tennessee passed bipartisan bills to modernize voter registration systems and restore voting rights to eligible citizens with past criminal convictions.
By mid-year, the Illinois State Legislature was considering automatic registration, not only at the state DMV offices, but also other state agencies, such as social service and disability offices. In Alaska, voters may see an automatic registration proposal presented as a ballot initiative by 2017, if not in November.
Among noteworthy legislation designed to ease voting access:
West Virginia: HB 4013 passed 26-8 in the Senate, 77-21 in the House, and was signed into law April 1 by Republican Gov. Earl Ray Tomblin. It establishes procedures for automatic voter registration at the state’s Division of Motor Vehicles.
The DMV will register everyone with a drivers’ license to vote, unless they decide to opt out. West Virginia is the third state with automatic voter registration, with California and Oregon adopting similar laws in 2015.
The same bill also included a Voter ID component that requires citizens produce identification when they vote, beginning with the 2018 elections. Any government-issued ID card is acceptable as are other forms of identification, such as a bank debit card (but not a credit card), a utility bill, a bank statement or a health insurance card.
Vermont: HB 458 passed 137-0 in the House, 28-0 in the Senate (Act 80) and was signed into law by Democratic Gov. Peter Shumlin.
Beginning on July 1, 2017, Vermont will automatically register to vote citizens who apply for, or renew, a motor vehicle driver’s license or non-driver identification card. Citizens can decline to use the application or renewal for voter registration purposes. With adoption, Vermont became the fourth state to enact automatic voter registration.
Since the 2010 mid-term elections, 22 states have new restrictions in effect. As of mid-July 2016, 33 states have imposed voter identification requirements with 19 requiring voters to present photo identification, and 14 accepting other forms of identification.
While the preponderance of 2016 voting-related bills circulating in state legislatures are designed to enhance access to the polls, 17 states pondered Voter ID bills that could limit voting access.
Those 17 states are: Alabama, Arizona, Georgia, Indiana, Kansas, Mississippi, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and Wisconsin.
Among the highlights:
Ohio: HB 189, which would end “Golden Week,” a six-day period when Ohioans could register and vote at the same time, as well as another measure to remove up to 90,000 registered voters who haven’t voted since 2008 from the polls. HB 189 was referred to the House Committee Government Accountability and Oversight where it remains.
In May, State Judge Michael Watson ruled HB 189 would impair minority voters from registering and voting early violates the 14th Amendment and Section 2 of the Voting Rights Act.
Missouri: State legislators placed a Voter ID Amendment on the November ballot that, if approved, would require citizens present voter IDs at public elections. Lawmakers had approved HB 1631, the Voter ID Act, 112-39 in the House and 24-8 in the Senate, requiring a state-issued Voter ID card, but on July 7, Democratic Gov. Jay Nixon vetoed the bill.
VIDEO-RECORDING POLICE & POLICE BODY CAMS
In 2016, eight states clarified conditions and circumstances in which citizens can record public officials — particularly police officers — in the wake of a February ruling by the Third Circuit Court of Appeals. The ruling said there is no First Amendment right to film public servants while doing their duty in public.
Far more prolific were the number of proposed bills governing the use of body cameras by police, and defining how video recorded by body and dashboard cameras can be used as evidence. Twenty-two states and the District of Columbia considered such body camera bills, with four – Florida, Indiana, Utah, Washington and D.C. – enacting new laws.
Among the most significant:
Florida: The sunshine state became the first to fund a pilot program for corrections officers who supervise youth offenders to be equipped with body cameras. Lawmakers also appropriated $250,000 to county sheriffs to subsidize purchasing body-worn cameras.
Washington: Legislators approved the nation’s first study to evaluate how body cameras should be used by officers in health care facilities. In addition, Washington joined Utah and Florida as the only states requiring police agencies that use body cameras to have written policies regulating their use.
North Carolina: HB 972, signed into law by Gov. Pat McCrory, requires a court order before footage from police body or dash cameras can be released to journalists, or to members of the public. Nor can police departments voluntarily release footage without a judge’s approval.
According to NCSL, New Hampshire, Minnesota, and Louisiana also passed laws restricting public access to police body-cam/dash-cam footage.
SALES TAXES FOR ONLINE TRANSACTIONS
According to NCSL, at least 24 bills have been introduced in 16 states to require out-of-state companies to collect taxes on Internet sales and remit them to the states.
In 2008, New York passed an “affiliate nexus law” that redefined “nexus” to include transactions and products created by in-state entities associated with a remote vendor, thus requiring online retailers to collect state sales tax. Since then, 25 states have adopted similar laws, including five — Michigan, Nevada, Vermont, Tennessee and Washington — that did so in 2015. At least 16 states fielded legislation that requires out-of-state companies to collect taxes on online sales, regardless of whether they have in-state affiliates in 2016.
South Dakota: On May 1, a state law took effect that requires merchants to collect the state’s sales taxes if their revenue from sales within the state exceeds $100,000 a year, or if they process 200 or more separate transactions in the state within a calendar year. The law had already been challenged in April by the American Catalog Mailers Association and Netchoice.
South Dakota’s law is, in essence, a concession that its inability to collect sales or use taxes from remote sellers is “seriously eroding the sales tax base”. Legislators adopted the law in the hopes that “the issue of sales tax fairness” can go before the Supreme Court.
Depending how the anticipated court proceedings pan out, at least seven other states — Connecticut, Kansas, Massachusetts, Mississippi, Nebraska, Ohio, and Rhode Island — have similar bills in the wings.
Louisiana: An Internet sales tax law that establishes click-through nexus and affiliate nexus, went into effect on April 1. The law specifically states that any federal legislation authorizing states to require a remote seller to collect sales tax on taxable transactions would preempt the provisions of the bill.
Oklahoma: The Retail Protection Act, which expands the definition of “vendor” and “maintaining a place of business in this state,” gives out-of-state retailers a choice to either voluntarily collect and remit Oklahoma use tax, or notify customers of their obligation to remit use tax, and provide an annual report of their online purchases. It goes into effect Nov. 1.
The Oklahoma Retail Merchants Association lobbied for the bill, claiming growth in Internet shopping has led to a drop in state sales and use-tax revenues. As a result, ORMA maintained, Oklahoma City’s sales tax revenues have declined 12.3 percent, forcing the city into a hiring freeze.
Vermont: In late May, legislators enacted HB 7375 that alters the definition of “vendor,” requires certain out-of-state vendors to collect and remit the sales tax, and requires non-collecting out-of-state vendors to provide information on those sales to the purchasers.
Utah: Several online sales tax bills have progressed beyond committee since 2013 but, as with Sen. Wayne Harper’s (R-Salt Lake City) SB 192 in March 2015, Rep. Mike McKell’s (R-Spanish Fork) SB 182 was withdrawn in March 2016 in response to opposition from “mommy bloggers” who generate revenue from click-through advertisements on their blogs. They were concerned that Amazon would terminate their contracts if the state adopted a remote sales tax law.
According to the 2015 and 2016 versions of the bill, taxes on online sales could generate between $89 million and $300 million a year for Utah’s state coffers.
In 2015, at least 235 bills were submitted in 39 legislatures proposing restrictions on abortion providers and access, according to RH Reality Check. That trend continued four-fold in 2016, as legislators in 45 states submitted at least 1,025 abortion-related provisions with more than 400 proposals introduced, and more than 20 enacted in five states — Florida, Indiana, Kentucky, South Dakota and Utah.
On the opposite end of the spectrum, legislators in 32 states introduced 214 measures expanding sexual and reproductive health services and education, including 16 passed by at least one legislative body, and two enacted by full legislatures.
Many proposals were submitted in anticipation of the U.S. Supreme Court’s June 26 5-3 ruling that reaffirmed constitutional protections for abortion rights, finding Texas’s requirement that doctors have admitting privileges at nearby hospitals and clinics to meet the standards of ambulatory surgical centers, violated the prohibition on placing an “undue burden” on the ability to obtain an abortion.
Among significant bills:
Missouri: Rep. Mike Moon (R-Ash Grove) again proposed a bill to make abortion illegal by creating a law that states life begins at conception and, for the third time, it passed the House but died in Senate committee.
Kentucky: Republican Sen. Max Wise’s SB 7, which would end state funding for Planned Parenthood clinics in Lexington and Louisville, passed 33-5 in the Senate, but was not presented for a vote in the House. None of Kentucky’s Planned Parenthood clinics provide abortions, but Wise’s bill seeks to block funding to clinics that offer abortion “referrals” or “counseling,” as Planned Parenthood does in the state.
Montana: The House approved a proposed 2016 Personhood Definition Amendment ballot measure that would ask voters to define “person” as “all members of the species Homo sapiens at any stage of development, including the stage of fertilization or conception, regardless of age, health, level of functioning, or condition of dependency.” The measure did not secure Senate approval as a legislatively referred constitutional amendment however, and will not be on the ballot this November.
Alabama: Sen. Gerald Allen’s (R-Tuscaloosa) SB 9, the ‘Fetal Heartbeat Bill,’ passed committee in a 7-1 vote in February but was “indefinitely postponed” in April following a second reading. The bill would make it illegal for a physician to perform an abortion after a heartbeat has been detected in the fetus. A companion House bill was also “indefinitely postponed.
Utah: The Protecting Unborn Children Amendment (SB 234), which requires anesthesia for fetuses when performing an abortion after 20 weeks, passed the Senate in a 20-3 vote, the House in by a 57-10 tally, and was signed into law by Utah Gov. Gary Herbert, despite heated objections from the medical community that there is no practice or protocol for administering analgesia to a fetus.
Massachusetts: Voters will see a proposed constitutional amendment to give legislators the authority to ban the use of MassHealth or other public funds to pay for abortions. The No Public Funding of Abortion Amendment would require a statement be added to the Massachusetts Constitution that states that no provision of the constitution be interpreted to mean that abortions should be publicly funded.
MINIMUM WAGE LAWS
According to the Economic Policy Institute, 17 states, the District of Columbia and many municipalities, have enacted new minimum-wage laws since 2014. In the absence of any federal action since 2009, and the unlikeliness that Congress will raise the federal minimum wage beyond $7.25 an hour in the near future, at least a dozen states pondered such legislation in 2016, with two – California and New York – adopting significant increases, while voters in several other states, such New Jersey will be presented with November ballot initiatives proposing minimum-wage hikes.
California:The Fair Wage Act of 2016 (SB 3) amends the state’s labor code to increase the minimum wage to $10.50 per hour on Jan. 1, 2017 for businesses with 26 or more employees. It would then increase each year until reaching $15 per hour in 2022. Afterwards, wages could be increased each year up to 3.5 percent, according to the Consumer Price Index.
Adoption of the Fair Wage Act negated the need for a $15 Minimum Wage Initiative on the November 2016 ballot in California as an initiated state statute. The measure was certified for ballot, but proponents withdrew it on June 23 with the passage of Senate Bill 3, approved by the California State Legislature in March 2016.
New York: State legislators approved a tiered minimum-wage hike that varies by region and business size. For New York City-area businesses, the minimum wage will rise to $11 at the end of 2016, then increase by $2 each year until it hits $15 by the end of 2018. For businesses with 10 or fewer employees, the minimum wage won’t reach $15 until the end of 2021.
For upstate businesses, the minimum wage will climb 70 cents a year until it reaches $12.50 by 2020. After that, the upstate minimum will continue increasing to $15, but at a pace set by the state’s budget director and labor department.
District of Columbia: D.C. lawmakers approved the Fair Shot Minimum Wage Amendment Act of 2016 that will raise the city’s minimum wage to $15 per hour by 2020 for an estimated 14 percent of all D.C. workers.
South Carolina: SB 146, filed by Sen. Marlon Kimpson (D-Charleston) would have raised the minimum wage from $7.25 an hour by increments until it reached $15 in 2020. The proposal died in a 3-2 Labor, Commerce and Industry Committee vote, although some state legislators suggest the proposal could resurface as an “advisory question” on a ballot initiative in the near future.
Maine: The Maine Minimum Wage Increase Initiative will appear as Question 4 on the November ballot in Maine as an indirect initiated state statute.
A vote “for” the measure is a vote in favor of increasing the state’s minimum wage to $9 in 2017, $10 in 2018, $11 in 2019, and $12 in 2020.
A vote “against” the measure is a vote to keep the current state minimum wage of $7.50. After 2020, the minimum wage would rise and fall with changes in the consumer price index.
Oregon: Oregon Gov. Kate Brown signed SB 1532 into law after being adopted by state legislators in March approving another geography-tiered minimum-wage hike.
Beginning July 1, the state’s $9.25 minimum wage will increase by 25 to 75 cents year, depending on location, through at least June 30, 2023. By then, the minimum wage will vary from $12.50 in more rural, less expensive areas to $14.75 in the Portland metro area.
DRONES: UASs & UAVs
By July 2016 at least 41 states had considered legislation related to unmanned aircraft systems (UAS) and unmanned aerial vehicles (UAVs). Fourteen states — Alaska, Arizona, Idaho, Indiana, Kansas, Louisiana, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Vermont, Virginia and Wisconsin – have passed 26 pieces of legislation defining what a UAS/UAV or drone is, how they can be used by law enforcement or other state agencies, and how they can be used by the general public and regulations for their use in hunting game.
Among new drone-related laws:
Oregon: HB 4066 in Oregon modified definitions related to UAS’s and makes it a class-A misdemeanor to operate a weaponized UAS. It also creates the offense of reckless interference by recreational pilots who fly drones near wildfires, airports and other areas. The law regulates the use of drones by public bodies, including requiring policies and procedures for the retention of data. A companion Senate bill specifies the fees for registration of public UAS’s.
Pennsylvania: Sen. Mike Folmer’s (R-Lebanon) SB 971, Fourth Amendment Protection Act, was referred to the Senate’s Government Committee in 2015 but was not introduced in 2016. It calls for a two-year moratorium on state and local agency use of unmanned aircraft, including law enforcement, except in emergencies or with a warrant.
Virginia/Rhode Island/Arizona: These states passed laws prohibiting the regulation of UAS by localities, giving exclusive regulatory authority over UAS to the state, subject to federal law.
Idaho/Indiana/Wisconsin: Idaho and Indiana passed laws prohibiting the use of drones in hunting and in scouting game, while Wisconsin lawmakers made it illegal to use a drone to interfere with hunting, fishing or trapping.
Tennessee: SB 2106 outlaws using a drone to fly within 250 feet of “a critical infrastructure facility for the purpose of conducting surveillance or gathering information.”
Utah: HB 126 makes it a class B misdemeanor to operate a UAS within a certain distance of a wildfire. It becomes a class A misdemeanor if the UAS causes an aircraft fighting the wildfire to drop a payload in the wrong location or to land without dropping the payload.
Vermont: SB 155 regulates the use of drones by law enforcement and requires law enforcement to annually report on the use of drones by the department. It also prohibits weaponizing drones.
Kansas: SB 319 expands the definition of harassment to include certain uses of UAS.
Louisiana: SB 73 makes it illegal to intentionally cross a police cordon using a drone and allows law enforcement or fire department officials to disable a UAS if it endangers the public or an officer’s safety.
At least six state legislatures approved bills in 2016 that allow customers to opt out of the mandatory installation of “smart-meters,” which record electricity consumption in real time, and transmit data via wireless for monitoring and billing.
According to the Energy Information Administration, U.S. electric utilities have installed 52 million smart meters since they became commercially available, replacing obsolete and inefficient analog meters. But not everyone wants a smart meter. Some have health-related fears about smart meters’ radio frequency (RF) transmissions, and concerns about the transmission of private data.
At least 23 states now allow customers to opt out of smart-meter installation, but some have imposed tariffs on those who want to keep their analog meters instead of allowing utilities to install a smart meter.
Among those new bills:
Pennsylvania: Republican Rep. Mike Reese successfully sponsored a bill that lifts the state mandate that utilities install smart meters, and limits how and when utility companies can share information gleaned from the meters.
Maryland, Massachusetts, and Texas: Lawmakers in these states replicated a Vermont law that allows ratepayers to keep old meters or have smart meters removed at no cost. The Maryland Smart Meter Awareness, a group that opposes smart meters, convinced Maryland lawmakers to lift the smart-meter mandate by citing reports in the U.S. and Australia about people suffering with headaches, dizziness and fatigue after being exposed to the meters.
There are three forms of campus carry – non-permitted, institutional and mandatory. Non-permitted prohibits firearms on any institutional property in 18 states. Institutional allows each university to develop its own policy in 23 states. Mandatory requires universities to allow firearms on campus in nine states.
In 2015, legislation was introduced in at least 15 states to allow some degree of concealed carry on college campuses. Eleven proposals didn’t make it out of committee, or were defeated, while Texas and Arkansas lawmakers approved campus carry.
In 2016, Tennessee, Florida, Georgia, Michigan and Missouri were among the states that considered proposals to expand campus carry at state universities and colleges. Highlights include:
Florida: Sen. Greg Evers (R-Baker) and Rep. Greg Steube (R-Sarasota) sponsored bills to allow those with state-issued concealed carry permits to carry firearms on college campuses. Essentially the same bill – which was derailed in 2015 – passed the House but never made it out of committee for a vote on the Senate floor.
Tennessee: SB 2376, which permits faculty to carry handguns after notifying local law enforcement, passed the Senate in a 28-5 vote and the House in a 69-24 tally. It went into effect July 1.
Georgia: HB 859, permitting concealed carry permit holders to have concealed weapons on state university and colleges, passed the House in a 113-59 vote and the Senate by a 37-17 tally, but was vetoed by Gov. Nathan Deal in May.
Missouri: The Missouri House approved SB 656 to allow concealed carry on campuses and various modes of public transportation in a 101-28 vote on May 5. The measure was approved by the Senate on May 13, the last day of the legislative session in a 24-8 vote. On June 27, Gov. Jay Nixon vetoed the law.
In May, the U.S. Food and Drug Administration released new federal rules on electronic cigarettes, essentially regulating them the same way as tobacco. The FDA’s regulations do not preempt state legislatures from enacting stricter regulations.
Despite the FDA’s regulatory emergence, in 2016 state legislatures continued to submit, review and adopt vaping-related laws and resolutions at the same pace as 2015 when 200 proposed bills were circulated in 40 states.
Proposed and adopted 2016 bills include dramatic tax increases on e-cigs and vaping devices, prohibiting vaping where smoking is banned, outlawing flavoring and advertising they say is intended to appeal to minors, and requiring the licensing of vaping shops.
According to the American Vaping Association, in 2016 at least four states – Pennsylvania, Connecticut, Vermont and New Jersey – joined the nine legislatures and more than 440 local governments in banning, to one degree or another, e-cigarettes in nearly all indoor public areas in accordance with their Clean Indoor Air Acts.
Among notable proposals:
California: SBX2-5 and SBX2-7, signed into law by Gov. Jerry Brown on May 4, raised the minimum legal purchase age for all tobacco products including vapor products, to 21 and prohibits vapor products from being used in the same places where smoking is banned.
New York: AB 2595, proposed regulating vaping as a tobacco product within the context of the state’s Clean Indoor Air Act, banning them in most public places. In February, a state court ruled vaping is not smoking, and the two words cannot be used interchangeably, therefore e-cigarette use must be banned specifically. On June 17 the legislature concluded its session without passing any anti-vaping legislation.
Alaska: SB 1, co-sponsored by six Republicans and five Democrats, would ban smoking – including vaping – in all public places. It passed the Senate in a 15-5 vote on March 30, before moving onto the House and being referred to the Judiciary Committee, where it remained when the session concluded.
Vermont: Gov. Peter Shumlin signed H.171 (Act 108) into law on May 16, prohibiting the use of vapor products in the same places where smoking is banned, with an exemption for vapor shops and vapor lounges.
Indiana/Utah: Effective July 1, legislation adopted in both states ban online sales of vaping and e-cigarette products to all consumers. Because of the economic harm to the burgeoning vaping industry, Indiana lawmakers say they will revisit the online ban in 2017, while a host of legal associations, most not involved with the e-cigarette industry are preparing legal challenges.
DAILY FANTASY SPORTS GAMBLING
According to the Fantasy Sports Trade Association (FSTA), six states – Colorado, Missouri, Mississippi, Tennessee, Indiana and Virginia – enacted laws legalizing and regulating daily fantasy sports (DFS) offered by Boston’s DraftKings, New York’s FanDuel, and dozens of other smaller operators in 2016. Kansas passed a law legalizing the games in 2015.
The FSTA notes that 21 other legislatures, including Arizona, Florida, Maryland and Washington, did not take action on proposed DFS bills, and six of the eight states still in session have pending online gambling-related bills in committee.
New York: The Assembly passed AB 10736 in a 91-22 vote and the Senate approved S 8153 by a 45-17 margin on June 18, the last day before summer recess. The Interactive Sports Fantasy bill awaits Gov. Andrew Cuomo’s signature. Supporters told Legal Sports Report they believe Cuomo will officially sanction the bill well before football seasons kick off in September.
If signed by Cuomo, it will legally define fantasy sports not as gambling but as “skill,” and thus “not subject to the provisions of the constitution.” If enacted, FanDuel, DraftKings and other fantasy sports sites will be able to operate again in New York as part of a settlement with N.Y. Attorney General Eric Schneiderman.
Pennsylvania: Rep. George Dunbar’s (R-Westmoreland) HB 1197 would require online DFS companies to form partnerships with the state’s 12 casinos, assess DFS companies a one-time $1 million casino fee, and a levy casinos $5 million a year to include fantasy football gaming within their operations. The bill would make DFS illegal in Pennsylvania unless conducted through state-licensed casinos.
HB 1197 was referred to the House Gaming Oversight Committee where it remained as the legislative session ended.
California: Rep. Adam Gray’s (D-Merced) AB 1437 passed 62-1 in March, but has not emerged from the Senate’s Government Organization and Rules committees. The bill calls for licensing and regulating DFS sites through the California Gambling Control Commission.
Florida: SB 832, which exempts DFS from state gambling laws and requires operators to register with the Florida Department of Agriculture and Consumer Services, pay a $500,000 upfront, and $100,000 in annual registration and regulatory fees, did not make it out of the Senate Appropriations Subcommittee on General Government.
Illinois: Rep. Mike Zalewski’s (D-Chicago) HB 4323, the Fantasy Contests Act, was approved 9-4 by the House Judiciary Committee but has not, as yet, advanced further. The bill is in response to Illinois Attorney General, Lisa Madigan’s, December 2015 determination that DFS was illegal under state gambling law. Zalewski’s proposal is to include fantasy sports participation as an exception to state gambling law.
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