Another one brought to my attention by Justin Harter. SB 291 seems to be an attempt to prevent gyms from locking people into contracts as a condition of using their services. That on its own is probably overreaching, but the motivation behind it is laudable enough. There have been gym owners who have engaged in some seriously sketchy behaviors with respect to membership contracts — for example, making them difficult to cancel and continuing to charge credit cards after a member has taken the actions necessary to cancel them. Even when strictly legal, they prey on peoples’ aspirations to get healthy with the knowledge that a lot of folks will quit, never show up, and still be on the hook for monthly fees. The legislation is in a part of the Indiana Code that imposes restrictions on what these gym membership contracts can look like. And, much of the legislation is focused on membership contracts. However, as written, SB 291 appears to go much further than even preventing the use of membership contracts.

A health spa is defined as, among other things, any business entity that provides instruction or facilities for exercising. Under this legislation, “a health spa may not require an individual to . . . pay dues, fees, assessments, or other charges of any kind as a condition to use the health spa’s health spa services.” I know some fitness professionals who probably won’t be excited to provide their services or use of their facilities for free. This was assigned to the Rules committee, so I expect it’s safe to say that this one is not going anywhere.

 

HB 1470 was introduced by Rep. Ober and seems to have been significantly amended in committee by Rep. Mahan. As amended, it contains provisions which, as I read them, require local government units (and pretty much any other state or local governmental entity) to, upon request, provide whatever government information the Legislative Services Agency requests at the expense of the governmental entity receiving the request. And it has to be provided in a format and within the time frame set by LSA. Specifically, LSA can demand government information from: the state, a state agency, a political subdivision, an agency of a political subdivision, a state educational institution, a separate body corporate and politic, and any other entity established by Indiana that performs a governmental function. Governmental information to which LSA is entitled is defined as “recorded information, regardless of the form or the media on which the information is recorded.”

I used to work for LSA, and I’m a huge fan of their work. But I’m not a fan of this provision of HB 1470. First of all, if the legislature wants the records, it should pay for them. This should at least make them judicious about what they ask for. If it’s all free to you, it’s pretty easy to just ask for the kitchen sink.

Secondly, (and bear in mind I have a huge bias here) —  but, if I’ve made strategic recommendations to my County government client, I’m not inclined to have that information disclosed to LSA. County government and state government are separate entities. Sometimes, we can be adverse entities. If the County sues the State, can LSA demand my memos to the County about the lawsuit? Can LSA demand the public defender or prosecutor’s thoughts about pending cases? This legislation does not seem to permit local government or state officials to withhold privileged information — rather, it simply requires LSA to “maintain the confidentiality of that information as required by federal law, Indiana law, or both.”

Unless I’m missing something that limits LSA’s ability to demand confidential information (attorney work-product being near and dear to my heart), this strikes me as pretty significant overreach.

The bill also has some generally laudable looking measures that are designed to streamline and make data more easily shared among state agencies, with local government, and with the public.

Justin Harter alerted me to SB 518 which appears to be a campaign in the War on the War on Christmas. That led me to SB 520 by the same author which has the General Assembly assuming the role of government grammar police.

SB 518 allows a school corporation to “instruct students about the history of any traditional winter celebrations, including Christmas,  and allow students and employees to offer traditional greetings regarding the celebrations, including Merry Christmas, Happy Hanukkah, Happy Holidays, “and other seasonal greetings.” So long as the display doesn’t “include a message that encourages adherence to a particular religious belief,” it may include scenes or symbols associated with traditional winter celebrations, including a menorah, Christmas tree, Nativity scene, or other religious symbol associated with traditional winter celebrations. The display must include a scene or symbol of more than one religion and/or one religion and at least one secular scene or symbol. Clearly this is an effort to educate kids about Saturnalia and the solstice-related origins of winter celebrations. Sarcasm aside, this legislation is pretty clearly trying to comply with Supreme Court case law on how you can include religious displays on government property without running afoul of the Establishment Clause. And, I don’t want to take efforts at complying with the Constitution for granted. The problem is that it seems to be trying to address a problem that exists more in the fevered imagination of talk radio hosts than in reality.

Meanwhile SB 520 says simply that a unit of state or local government “shall not use the term “free” to describe a payment, good, or service unless the payment, good, or service is funded entirely through private contributions.” That’s it. No guidance on what constitutes “using the term.” The fiscal note says that the legislation will have no fiscal impact. Luckily it did not say the bill was “free.”

These bills were both introduced by Sen. James Smith (800-382-9467).

Senator Freeman (317-232-9400) has introduced SB 500 concerning Homeowner’s Associations (HOA) and solar power.

It states that an HOA can’t ban a homeowner from installing a solar energy unit. The HOA can require preapproval of the location and manner of installation. The legislation incorporates the definition of solar energy unit from IC 36-7-2-8 (which declares Indiana’s support for solar energy and restricts local government’s ability to adopt ordinances that impair the use of solar energy):

(1) any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating or cooling, or for water heating; or

(2) any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of energy for space heating or cooling, or for water heating

I note what I think might be a mistake in drafting, however. It has a number of exclusions — for example the HOA can ban the solar energy unit if there is a court order saying it’s dangerous. But, in this laundry list of exceptions, you have:

A homeowners association may prohibit a solar energy system if any of the following apply:

(5) The solar energy system is located in an area other than on the roof of the dwelling unit or of another structure.

(6) The solar energy system is located in an area other than in a fenced yard or patio owned and maintained by the owner of the dwelling unit.

If I’m reading this correctly, 5 & 6 cancel each other out. If the system is on the roof then it is going to be in an area other than a fenced yard or patio & if the system is on the patio, then it’s in an area other than on the roof. I think they probably want to combine 5 & 6 into one item so it can be in any of those places.

I’m also a little confused by the language that says “except as provided in IC 36-7-2-8, a homeowner’s association may not prohibit the owner from installing a solar energy unit.” That section speaks to a municipality’s ability to adopt ordinances that impose reasonable safety restrictions on solar energy units. It does not, so far as I can tell, have anything to do with HOAs. The only thing I can think of is an ordinance that delegates some kind of safety review to an HOA. But that would seem unusual.

I assume this legislation arises out of a situation where an HOA has stymied a homeowner’s desire to install solar. I also assume that the HOA was concerned about its appearance. The statute attempts to address aesthetic concerns to some extent by, for example, saying that an HOA can impose certain requirements such as precluding the system from extending above the roof, limit the color of piping, and a few other things. If it’s on the patio, the HOA can require that the system not extend above the fence line.

I don’t have strong feelings about this. I like the idea of encouraging and allowing homeowners to use solar if they want to. But, I also know that homeowners can sometimes make garish choices that have an impact on neighbors and that the politics of HOAs can be difficult.

Sen. Kruse (317-232-9400) has introduced SB 117 which mandates certain content for U.S. History courses in Indiana schools. The bill is up for second reading on Monday. In particular, it requires schools to teach “the structure of state and federal governments, including the role of separation of powers, the freedoms guaranteed by  the Bill of Rights of the United States Constitution, and the Federalist Papers.” It also requires the school to administer “the United States Civics Test prepared by the United States Citizenship and Immigration Services.” Schools could choose whether test results are tied to credit in the course.

I don’t have a problem with any of these items in particular. I see value in knowing the structure of state government, the structure of federal government, the role of separation of powers, the Bill of Rights, and the Federalist Papers. However, as an initial matter, I don’t like the General Assembly micromanaging the school curriculum.

Next, it’s hard to escape the feeling that Sen. Kruse is trying to put his thumb on the scale of what the kids are taught in order to promote a particular view of federalism. Whether that’s his intent or not, the text of the legislation provides a lot of flexibility. I might be inclined to spend a lot of time talking about how, in the pre-Civil War period, Southern states were enthusiastic supporters of the Fugitive Slave Act which required the federal government to go into anti-slave states that weren’t observant enough of the slave states’ laws permitting white people to own black people. That, in fact, the federal government’s lackluster intrusion into the business of the free states was a major theme in secession declarations. And that, historically, a declared love of federalism has often been pretext for resisting civil rights legislation.

I do like the idea of kids having to take the immigration test. It might give them an appreciation of their own citizenship and the responsibilities that ought to come with it.

 

Rep. Soliday (317-232-9815) has introduced HB 1592 which would prohibit Tesla’s direct sales to consumers. It does not mention Tesla Motors specifically, but its criteria apply only to Tesla. Under the legislation, a manufacturer cannot sell directly to consumers if it sells more than 1,000 unites and has had a license to sell directly to consumers for more than six years.

James Briggs, writing for the Indianapolis Star, has an article discussing the proposed legislation.

The bill applies to manufacturers that have sold cars in Indiana since July 2015 and have never used a franchised dealership. Such a company would have to stop selling cars directly to consumers either after its sales surpass 1,000 cars per year, or six years after its dealer’s license is granted.

Hey, what do you know, there’s exactly one company that will soon be out of compliance with this bill. Tesla, which received its dealer license in December 2013, would have to shut down its Indiana sales in 2019.

It’s no secret that automakers, dealers and some legislators want to stop Tesla from doing business in Indiana and other states. That’s because Tesla is the only company that sells straight to consumers.

Tesla and its enthusiasts are expected to object. However, auto dealers are a powerful political force. They fear that Tesla’s business model might expand.

Rep. Negele (1-800-382-9841) has introduced HB 1278 concerning cervical cancer protection. The bill has passed out of committee and gone through second reading today.

It directs the State Department of Health to develop a strategic plan to significantly reduce morbidity and mortality from cervical cancer. In particular, this means getting more people vaccinated against the human papilloma virus. But, it also means identifying barriers to effective prevention, screening, and treatment; and creating awareness of the problem.

The bill directs the Department to work with IU, Purdue, Notre Dame, and the Family and Social Services Administration. It suggests but does not require work groups that include a variety of types of individuals including physicians, health care providers, cervical cancer survivors, epidemiologists, and representatives of geographic areas at higher risk for cervical cancer.

The recommended work groups would also potentially include a member of faith based organizations. That initially struck me as an odd group to include in a health initiative, but then it occurred to me that a lot of the resistance to HPV vaccinations has come from faith based organizations. (I believe there is a belief that, because HPV is sexually transmitted, vaccination is tantamount to condoning sexual activity). One study showed:

Parents with frequent attendance at religious services were more likely than parents who do not attend services to have decided against vaccination (vs. being undecided)

If religion is correlated with less vaccination, then it makes sense that having input from members of religious communities might be what’s needed to overcome the resistance that seems to be present.

The bill also requests information about the costs of cervical cancer in the state. That’s probably smart because there is naturally a resistance to spending money. But sometimes that resistance can be penny-wise and pound foolish.

Sen Becker (800-382-9467) introduced SB 314 which is scheduled for second reading today which specifies additional authority for courts issuing protective orders. In the statute which specifies that a person can petition a court for a protective order involving cases of domestic or family violence, this legislation would add to the court’s authority, specifying that it can order that the petitioner be granted exclusive custody of the animal. It also states that the court can order the respondent (ostensibly the abusive spouse) not to hide, injure, or threaten to harm the  animal and can order law enforcement to assist with securing the animal and otherwise enforcing the order.

These orders are ex parte, meaning that the Court can issue them without the other side first having had a chance to respond. The party that is a subject of one of these orders can challenge the order by asking for a hearing within 30 days of it being issued. The Court would then set a date for a hearing and both sides would have an opportunity to be heard.

As pets become more a part of our families and we become attached to them, they become a point of leverage for those who wish to engage in emotional abuse. So, I assume this legislation is meant to address those situations where an abusive spouse threatens the well-being of a pet either as a way to inflict pain on the other spouse and/or because s/he is an asshole.

Rep. Gutwein has introduced HB 1265 concerning drainage water management.  “Drainage water management system” is defined as “a subsurface system of drainage, tubing, drainage tiles, water flowgates, control valves, and related control systems designed to facilitate controlled water drainage from agricultural land used for crop production.”

If a person acquiring a component of a drainage system is engaged in the business of agriculture, the component would be exempt from sales tax. I’m not sure that this should necessarily be limited to only those engaged in the business of agriculture, but otherwise I think I support it. The story of drainage in the state is largely unappreciated (at least outside of the agricultural community) and so important to the development of the state.

When drainage is working properly, you barely think about it. When it’s not working, there are few things that make you feel more powerless. (I say this as the owner of a basement.) I’m guessing a little bit here, but from maybe 1880 through the 1930s, a huge amount of drainage infrastructure was constructed in Indiana. I’d be hard pressed to say whether our drainage infrastructure or our road infrastructure is more extensive. In any case, a lot of the drainage is getting long in the tooth and needs maintenance and reconstruction. I’m more familiar with this in the context of public regulated drains, but I expect private drains are similar.

Well constructed drains tend to benefit everyone in the watershed — water does not respect property lines. Seems like we could do worse than assisting with drainage infrastructure by providing a sales tax exemption.