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Business and Economy Environment and Natural Resources Liberty and Justice News

Ramsey Wants New Guns-in-Restaurants Legislation

Lt. Gov. Ron Ramsey said last week that he supports moving legislation this session to clarify a Tennessee gun law that was struck down by a Nashville judge last fall.

Both Ramsey, R-Blountville, and last year’s guns-in-restaurants chief bill-sponsor — Sen. Doug Jackson, D-Dickson — want to alter the existing law to fix any ambiguities that led to the judge’s ruling, rather than waiting for the case to run its course through appeals courts.

“If we wait on the courts, it could be months, if not a year, so I think we need to move forward with it,” Ramsey said Friday. He added that he also supports “stiffening penalties for people who carry guns into places where they are not allowed.”

Enacted last year over the veto of Gov. Phil Bredesen, Tennessee’s guns-in-restaurants law allows firearm-carry permit-holders to posses their weapons in alcohol-serving eating establishments that meet certain caveats. In particular, the law declares that for customers to legally pack heat in an establishment, it must derive more than 50 percent of its income from food, rather than the sale of booze.

However, Davidson County Chancellor Claudia Bonnyman declared in November that the law is “fraught with ambiguity.” Calculating an establishment’s food-versus-liquor sales breakdown isn’t something citizens could reasonably be expected to determine for themselves, said Bonnyman.

Before the 2009 General Assembly made it legally permissible for non-drinking, permit-holding patrons to carry firearms, state law unequivocally banned pistol packing anywhere beer and cocktails were served.

Ramsey’s inclination to move a rewritten guns-in-restaurants bill contrasts with that stated recently by House Speaker Kent Williams, R-Elizabethton.

Williams was reported last week to have indicated his preference to “see (the case) just go through the courts first,” and that he didn’t want to “spend a lot of time in session dealing with an issue and then it turns out we didn’t need to do it.”

Both Ramsey and Jackson dismissed claims by Nashville and Memphis tourism promoters that the guns-in-restaurant law is scaring off would-be visitors to Tennessee.

“Nobody has seen any ill effects from this,” Jackson said. “Just like nobody saw any ill effects in Kentucky, Arkansas, Missouri, Alabama, Mississippi, Georgia, Virginia or any of the 38 other states that allow gun-owners with permits to carry where alcohol is served. Florida has had their law in effect for more than 20 years, and I don’t think it has done great harm to their tourism.”

Added Ramsey, “I’d like to see those numbers to show that it’s hurting tourism. I think (the claims) are mostly just hypothetical.”

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Business and Economy Liberty and Justice

State’s Regulatory Boards Don’t Handle Complaints Well, Comptroller Reports

A report released Tuesday by state auditors suggests some professional- and occupational-licensing boards aren’t doing a very good job of processing complaints filed against the business owners and service-providers they’re supposed to be overseeing.

“There are still few procedures requiring boards to document and record specific complaint information in a standardized format,” according to the performance audit (pdf) of the Division of Regulatory Boards.

The Comptroller of the Treasury’s report also noted that studies conducted in both 1999 and 2005 found similar problems. The Division of Regulatory Boards, which operates under the Department of Commerce and Insurance, has still “not developed the tools to provide themselves with the data needed to efficiently and effectively manage complaints.”

Many boards also don’t investigate license applicants for criminal histories, even though regulations require them “to be of good moral character, honest, and/or trustworthy and free of criminal convictions,” the report stated.

“We generally concur with the finding and did concur before the audit began,” said Mary Moody, deputy director of the Commerce and Insurance Department.

Nothing in the report came as a surprise to her department, Moody told the Labor and Transportation Subcommittee of the Joint Government Operations Committee on Tuesday.

A lot of the government’s problems boiled down to not having enough attorneys, Moody said.

The auditors added that “attorney workloads and board meeting frequency…may play a significant role in the timely resolution of complaints.”

“Complaint files show that boards’ administrative staff spend relatively little time on complaint intake and closure tasks. Most of the time a complaint is open occurs between the time the staff attorney receives the complaint file and when the board makes its final decision,” according to the report.

There are 11 professional regulatory boards scheduled to terminate at the end of June if the Legislature doesn’t extend their operating mandate. They included licensing-oversight authorities for auctioneers, barbers, collection agents, cosmetologists, funeral directors, security guards, land surveyors, private investigators, polygraph technicians and real estate appraisers and agents.

More than half the complaints currently under review or investigation by boards that oversee barbers (71 cases), cosmetologists (311), land surveyors (16), private investigators (45) and security guards (315), have gone unresolved for more than 180 days. The committee that oversees security guards hasn’t met since 2006, according to the audit.

Rep. Susan Lynn, R-Mt.Juliet, who chairs the Joint Government Operations Committee, said she doesn’t foresee lawmakers refusing to reissue statutory approval for the boards this year.

However, Lynn said she’d like to see the state initiate a thoroughgoing examination of whether Tennessee’s consumers and economy might be better served in absence of some of the licensing boards and requirements.

“I’m not a fan of occupational licensure unless it directly serves to protect the constitutional rights of the citizens, since the purpose of government is to secure those rights,” said Lynn.

Last year Lynn and Sen. Bill Ketron, R-Murfreesboro, sponsored an “Economic Civil Rights Act,” which called for eliminating any occupational board that in reality tends to function more as a protectionist barrier against new competition than as a safeguard against legitimate threats to citizens’ safety, health or rights.

“If you’re doing something that is potentially a danger to somebody else, then the state should have the power to regulate,” said Lynn. “If not, then a license requirement is often just an attempt to force people to jump through hoops. There are a lot of regulations like that which are meant for achieving good, but which really end up only hurting people economically.”

According to the free-market Tennessee Center for Policy Research, only nine other states have as strict or stricter regulatory burdens on entrepreneurs, merchants and service-sellers as the Volunteer State.

“While generally sold as a means to protect the public interest, regulations often exist merely to protect a chosen class,” wrote TCPR staffers in a statement delivered to a House committee looking into the bill last session. “This smothers competition and preserves a government-endorsed monopoly, thereby increasing the costs of goods and services to consumers. Reduced competition also makes it more difficult for consumers to receive the quality of goods and services they demand.”

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Press Releases

State Health Assessment Of Kingston Ash Spill Site Complete

State Of Tennessee Press Release, Dec. 22, 2009:

Public Comments Accepted Through February 9, 2010

NASHVILLE – The Tennessee Department of Health’s (TDH) Environmental Epidemiology Program, under a cooperative agreement with the federal Agency for Toxic Substances and Disease Registry (ATSDR), has completed a draft health assessment for Tennessee Valley Authority’s (TVA) Kingston coal ash spill site and is accepting public comments now through February 9, 2010, it was recently announced. Both the 200-page assessment and a four-page fact sheet summary are available on the department’s Web site.

“We understand local residents’ concern about the potential health implications of the coal ash spill,” said Bonnie Bashor, director of the Environmental Epidemiology Program. “It’s the department’s responsibility and mission to protect the health of the people in Roane County. With this in mind, the department took very seriously the review and analysis of collected data to determine any health risks associated with coal ash exposure.”

Details about the department’s participation in a Roane County community public meeting to answer questions about the draft health assessment will be announced soon. The meeting is anticipated to be held in January 2010.

The fact sheet outlines the public health assessment (PHA) process and next steps, and lists all of the environmental data sets used in writing the PHA. The full public health assessment includes a summary, discussion, conclusions, recommendations and a public health action plan. Environmental data from the Environmental Protection Agency (EPA), the Tennessee Department of Environment and Conservation (TDEC), TVA and others are presented in the report.

Highlights of the conclusions reached in the report are as follows:

  • No harm to the community’s health is expected from touching the coal ash. Even though touching the coal ash could cause local skin irritation, the metals in the ash are not likely to get into people’s bodies from merely touching the coal ash.
  • Using municipal drinking water from the Kingston and Rockwood water treatment plants will not harm people’s health because the raw and finished water have continuously met drinking water standards. Also, using well or spring water within four miles of the coal ash release will not harm people’s health from exposure to coal ash or metals in the coal ash because no evidence has been found for groundwater contamination by coal ash.
  • Using the Emory River at the site of the coal ash release (near Emory River mile 2) could result in harm to residents or trespassers from physical hazards associated with cleanup efforts and from the volume of ash present, if residents or trespassers entered the area. No harm to people’s health should result from recreational use of the Emory, Clinch and Tennessee Rivers outside the area of the lower Emory River down to the confluence of the Emory and Clinch Rivers, as specified in the recreational advisory and river closure. As the advisory indicates, people are advised to avoid areas where they see ash, however, even if it is outside the area of immediate impact. Previous fish advisories should be followed.
  • Breathing ambient air near the coal ash release is not expected to harm people’s health as long as adequate dust suppression measures are in place. No harm to people’s health is expected from occasionally breathing coal ash if it should become airborne for short periods of time. If dust suppression measures should fail and particulate matter is present in concentrations greater than National Ambient Air Quality Standards due to the coal ash becoming airborne for periods longer than one day, the department concludes that particulate matter from airborne coal ash could harm people’s health, especially for those persons with pre-existing respiratory or heart conditions.

The draft PHA has already undergone government review by Tennessee Emergency Management Agency, TDEC, ATSDR and EPA to ensure the accuracy of the data and science used in the report. Also involved in the review of the assessment were the Tennessee Poison Center and Oak Ridge Associated Universities. The ATSDR has provided the report to three outside, independent reviewers for scientific peer review as well.

Comments must be submitted in writing. Submit via e-mail to EEP.Health@tn.gov or mail to:

Environmental Epidemiology Program

Tennessee Department of Health

1st Floor, Cordell Hull Building

425 5th Avenue North

Nashville TN 37243

December 22, 2009 marks one year since the coal ash spill, where a retaining wall failed at the TVA Kingston Fossil Plant in Roane County, Tenn. More than 5.4 million cubic yards of coal ash spilled from an on-site holding pond to cover more than 300 acres of surrounding land and water.

TDEC serves as the state’s lead agency to contain the immediate threat to human health and the environment. TDH continues to play a critical role in working with TDEC and assessing and ensuring ongoing public health protection. In the weeks following the spill, TDH went door-to-door to conduct a health survey and to share information with area residents. The department provided information to area medical practitioners. TDH operates the state lab that analyzes all the samples collected by TDEC, and provides health assessors to determine whether adverse health effects are likely based on the data.

On May 11, the United States Environmental Protection Agency signed an enforceable agreement with TVA to oversee the removal of coal ash at the TVA Kingston Plant. The state of Tennessee welcomed this action and continues to work in partnership with EPA to ensure the cleanup in Roane County is thorough and protective of public health and the environment.

For more information on the involvement of TDH in protecting residents’ health in the aftermath of the Kingston coal ash spill, visit http://health.state.tn.us/coalashspill.htm. For more information on the Environmental Epidemiology Program, visit the Website.

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Featured Liberty and Justice News Tax and Budget

State Sovereignty Supporter Pushes Federal Mandate in TN Legislature

Earlier this year, Republican state Rep. Debra Young Maggart co-sponsored a resolution demanding that the federal government refrain from further burdening Tennessee with unwarranted and potentially unconstitutional policy mandates.

But earlier this month, Rep. Maggart and Sen. Diane Black, R-Gallatin, expressed their interest in legislatively obligating the State of Tennessee to embrace an as-yet unfulfilled federal mandate, signed by George W. Bush, that critics say violates just the sort of constitutional principles lawmakers like Maggart saw fit to reiterate in their state sovereignty resolution last session.

The federal mandate at issue here is part of the Adam Walsh Child Protection Safety Act of 2006 (pdf). Among other things, it demands harsher treatment of juveniles found guilty of committing sex crimes — in particular, by posting youthful offenders’ pictures, names, birthdays and addresses online.

“The adoption of this legislation would put Tennessee into compliance with the requirements for juveniles to be placed on state’s Sex Offender Registries under the Adam Walsh Act which was scheduled to go into effect in 2009,” according to a press release issued Dec. 7 by Maggart and Black. “Tennessee was awarded over $50 million in Byrne Grant funding last year, 10 percent of which could be in jeopardy unless the state adheres to these requirements.”

Failing to abide by the Act could result in a loss of state law enforcement subsidies of $750,000 to $940,000 next year, the Tennessee Office of Criminal Justice Programs reports.

“Is it a mandate? Yes,” said Maggart.

But she sees little in her past advocacy for the sovereignty resolution — combined with her support now for the Bush-era federal mandate — to indicate she’s guilty of a political double standard.

“I know we need this money,” Maggart told TNReport.com. “It is a mandate, but again, it is what we’re operating under, and I think that we should have uniform laws on sex offenders across the country because sex offenders are really clever.”

The Tennessee sovereignty resolution, House Joint Resolution 108 (pdf), was really meant to ward off unfunded mandates such as government-run health care or expansions of education programs, Maggart said. It wasn’t necessarily intended to label all the federal government’s directives to the states as bad.

“I just think they’re two different animals,” she said. Of the federal health legislation under consideration in Congress right now, Maggart said, “The costs are going to be out of this world.”

“But keeping sex offenders out of our community where they can prey on our children,” she added, “is a completely different thing.”

Michael Hough, a public safety specialist for the Washington D.C.-based American Legislative Exchange Council, said that elements of the Walsh Act, particularly the juvenile offender provisions, were upsetting to state lawmakers, many of them conservatives, from around the country who gathered in Atlanta last summer to discuss the law.

“Everyone basically agreed that parts of the law were very good, but — as happens a lot when the federal government passes things — they don’t really understand what’s going to happen when it is put out in the states.” said Hough, whose organization tends to promote state-level, small-government, market-oriented policy solutions.

Hough said many lawmakers complained of the costs associated with implementing much of the Walsh Act — that they’re in fact even higher than the potential Byrne grant cuts that would result from noncompliance.

Likewise, the National Conference of State Legislatures has stated that the Walsh Act works to “preempt many state laws and create an unfunded mandate for states.”

The Act was also found unconstitutional in April 2008 by a U.S. District Court judge in Florida, who declared that under the general reasoning inherent in the Walsh Act, “virtually all criminal activity would be subject to the power of the federal government.”

“Surely our founding fathers did not contemplate such a broad view of federalism,” wrote the judge.

His opinion was later overturned on appeal by the Eleventh Circuit Court of Appeals, which said the provisions of the United States Constitution allowing for regulation of interstate commerce permitted Congress to pass laws that “track those offenders who move from jurisdiction to jurisdiction.”

To date, only Ohio has adopted the Walsh Act, and currently it is under review in the state supreme court.

“This is not about kids playing doctor when they’re 10 years old,” said Maggart. “The needs of the community to be protected by a 16-year-old that’s a rapist, it outweighs everything.”

But Nashville defense attorney Brent Horst, himself a former sex-crimes prosecutor in Florida, said situations where children “playing doctor” crosses a line could result in an individual being publicly labeled as a heinous sort of criminal for decades.

“No one wants to be soft on sex offenders,” said Horst, but requiring that juvenile offenders be added to the adult registry is an “incredibly stupid, unfair and unjust” idea. It could end up subjecting a “a poor kid who’s just a normal teenager experimenting with his sexuality” to years of societal contempt, he said.

“It’s all about the (federal) money,” Horst added.

If approved by both chambers and OK’d by the governor, the new law would require juvenile offenders to register if they have been found guilty of crimes such as rape, aggravated sexual battery, aggravated rape, rape of a child, aggravated rape of a child or an attempt to commit of those crimes.

Juveniles convicted as adults under Tennessee law must already register with the sex offender website.

Maggart, who, like Sen. Black, is from Sumner County, was the No. 2 co-sponsor of the HJR108 sovereignty resolution. A very popular measure, it passed 85-2 in the House and 31-0 in the Senate. Black didn’t appear to vote on the legilsation.

HJR108 reaffirmed Tennessee’s claim as a self-governing jurisdictional entity in keeping with the Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

HJR108 also lamented that while “the federal government was created by the states specifically to be an agent of the states…today, in 2009, the states are demonstrably treated as agents of the federal government.”

Similar measures were enacted in several other states, but on June 23 Phil Bredesen put pen to paper and made Tennessee’s the first such resolution in the country signed by a governor.

The resolution’s chief sponsor last spring, Rep. Susan Lynn, R-Mt. Juliet, says she tends to agree with Maggart — that the Hendersonville Republican’s effort to list juveniles on public sex offender electronic bulletin boards is more an effort to improve public safety in Tennessee than an attempt to suck up to Washington, D.C.

“This would be a Tennessee law to put juveniles on a sex offender registry,” said Lynn, who supports the bill. “It would happen to be coincidence, as far as I’m concerned, that the federal government is mandating this.”

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Press Releases

Rep. Maggart and Sen. Black Want Violent Juveniles on Sex Offender Registry

Press Release from State Representative Debra Maggart (R-Hendersonville) and Senator Diane Black (R-Gallatin), Dec. 7, 2009:

NASHVILLE – Rep. Maggart and Sen. Black will push for passage of legislation in January to place violent juvenile offenders on Tennessee’s Sex Offender Registry as required under the federal Adam Walsh Act. The legislators introduced legislation today to place offenders between the ages of 14 and 18 years of age on the Registry.

“We are trying to protect children who are victims of this crime,” said Rep. Maggart. “The safety of children overrides concerns regarding information being available about the juvenile who must register as a result of being convicted of this violent crime. We are talking about rape, aggravated rape, aggravated sexual battery, rape of a child and aggravated rape of a child. These are serious adult crimes committed by a juvenile that most commonly occur with very young victims who must be protected.”

The adoption of this legislation would put Tennessee into compliance with the requirements for juveniles to be placed on state’s Sex Offender Registries under the Adam Walsh Act which was scheduled to go into effect in 2009. Tennessee was awarded over $50 million in Byrne Grant funding last year, 10 percent of which could be in jeopardy unless the state adheres to these requirements.

However, in June U.S. Attorney General Anthony Holder signed a one year agreement to extend the deadline for states to comply with the Sex Offender Registration and Notification Act. Only Ohio has complied with the law thus far.

“Tennessee has made very good progress at protecting children against child sexual predators, but we have still have a hurdle to overcome by placing these violent juvenile offenders age 14 and older on the Registry,” said Black.

“Although the risk of repeating the crime is not quite as high as adult sex offenders, it still presents enough of a threat to require placing these offenders on the Registry,” she continued. “We would like to believe that juveniles could not commit these types of horrible crimes. However, the fact remains that they do and children must be protected.”

“When there is this threat to the community, parents should have the right to know that the perpetrator has this history of sexual violence against children,” added Maggart. “Whether or not the perpetrator is 17 or 24 years old, child sexual offenders can be dangerous to children in the community and should be placed on the Registry as required by the Walsh Act. Hopefully, we will pass this legislation in the 2010 legislative session.”

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Press Releases

Bredesen Names Gayle Ray to Lead Department of Correction

State of Tennessee Press Release, Dec. 04, 2009:

NASHVILLE – Governor Phil Bredesen today appointed Gayle Ray to be the next Commissioner of the Department of Correction.

Ray will assume her new role on January 1, 2010, following the departure of current Correction Commissioner George Little, who earlier this week announced he will leave Bredesen’s cabinet on December 31 to become chief administrative officer for newly-elected Memphis Mayor AC Wharton. Ray currently serves as deputy commissioner in the Department of Correction.

“I’m pleased to appoint Gayle to this position and appreciate her willingness to serve our state in this important role,” Bredesen said. “Her experience in corrections and law enforcement includes service at the state and local levels, and she is the right person to assume leadership of our efforts to the department.”

Tennessee’s Department of Correction is responsible for supervising and rehabilitating convicted offenders. The department operates 14 prisons and correctional facilities across the state that house more than 19,000 inmates. The department also operates the Tennessee Correctional Academy in Tullahoma, which serves as the state’s primary training and staff development program for correction workers.

“I appreciate the opportunity to serve Governor Bredesen and the State of Tennessee as commissioner,” Ray said. “Under the leadership of Governor Bredesen and Commissioner Little, the department has made great strides to ensure public safety by better preparing prisoners for a successful return to the community, and I intend to continue leading the department toward this important goal.”

Ray served as sheriff of Davidson County from 1994 to 2002, during which time the Metro jail system became the first jail system in the country to be fully accredited. She also developed systems to help offenders with mental illness, initiated graduated sanctions and started a number of rehabilitative programs to help offenders re-enter the community.

She has a Bachelor of Arts in English from Middle Tennessee State University, a Master of Arts in English from the University of Arkansas and a Master’s of Business Administration from Belmont University. Ray is a recipient of the Athena Award, the YWCA Academy for Women of Achievement Award and the Public Relations Society of America’s Apollo Award.