May 23, 2019

HB 16-1117: Requiring Recording of Certain Custodial Interrogations

On January 20, 2016, Reps. Daniel Kagan & Lori Saine and Sens. Irene Aguilar and John Cooke introduced HB 16-1117Concerning a Requirement That Custodial Interrogations Related to Investigations for Certain Serious Felonies Be Electronically Recorded. The bill was assigned to the House Judiciary Committee. It passed through that committee, amenb

This bill, if adopted, would require all law enforcement agencies to have audio-visual recording equipment available as well as policies and procedures in place for preserving custodial interrogations by January 1, 2017. Additionally, a peace officer must record the custodial interrogations occurring in a permanent detention facility if the peace officer’s investigation relates to a class 1 or 2 felony or a felony sexual assault.

The proposed bill would not require a peace officer to record the interrogation if:

  • The defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing;
  • The recording equipment fails;
  • The recording equipment is unavailable, either because of extraordinary circumstances or because the equipment is damaged;
  • Exigent circumstances related to public safety prevent recording; or
  • The interrogation takes place outside the State of Colorado.

Furthermore, the bill proposes that a court may admit evidence from a custodial interrogation that has not been recorded. If the prosecution, when offering evidence from an unrecorded interrogation, can show by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, however, the court shall issue a cautionary instruction to the jury after admitting the evidence.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1077: Recreating the Statutory Revisions Committee

On January 13, 2016, Rep. Dominick Moreno and Sen. Beth Martinez Humenik introduced HB 16-1077Concerning the Recreation of the Statutory Revision Committee. The bill was assigned to the House State, Veterans, & Military Affairs Committee. It passed out of that committee with amendments and was referred to Appropriations.

When the statutory revision committee was created in 1977, it was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. This bill proposes to recreate the committee, which was repealed in 1985.

The recreated committee would be comprised of 8 members. The majority and minority party leaders of each chamber of the general assembly would appoint two members for each party. The bill also proposes that the committee be staffed by the office of legislative legal services.

The committee would be charged with many responsibilities, including: (1) making an ongoing investigation of the common law, statutes of the state, and current judicial decisions for the purpose of discovering defects and errors in the law and recommending needed reforms; (2) receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and errors in the law; (3) recommending legislation, if needed, to effect such changes in the law as it deems necessary in order to modify or eliminate outdated, redundant, or contradictory laws; and (4) occasionally reporting its findings and recommendations to the committee on legal services and annually to the general assembly.

Mark Proust is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

SB 16-026: Preventing Restriction of Communication Rights of Protected Persons

On January 13, 2016, Sen. Laura Woods introduced SB 16-026Concerning Personal Rights of Protected Persons, and, In Connection Therewith, Limiting the Ability of a Guardian or Conservator to Isolate a Protected Person. The bill was assigned to the Senate Judiciary Committee, where it was amended and referred to Appropriations.

The proposed bill provides that a guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons. Unless a restriction is authorized by a court order, this includes the right to receive visitors, telephone calls, or personal mail. A court may issue such order restricting communications, visitations, or interactions if good cause can be shown by a guardian or conservator.

Additionally, an interested person, including the protected person, who has a reasonable belief that the guardian or conservator has violated the court order may move the court to do any one of the following: (1) require the guardian or conservator to grant a person access to the protected person; (2) restrict, or further restrict, a person’s access to the protected person; (3) modify the guardian or conservator’s duties; or (4) remove the guardian or conservator.

The proposed bill also provides that a guardian or conservator who knowingly isolates a protected person in violation of the law or a court order is subject to removal.

The bill also proposes certain instances in which the guardian or conservator must notify the protected person’s closest known family members or person designated by the protected person. These instances are: (1) if the protected person changes his or her residence; (2) if the protected person resides at a location other than his or her residence for more than 7 days; (3) if the protected person is admitted to a medical facility for acute care or emergency care; or (4) if the protected person dies.

Mark Proust is a 2016 JD Candidate at the University of Denver Sturm College of Law.

SB 16-027: Allowing Medicaid Clients to Receive Prescriptions Through the Mail

On January 13, 2016, Sens. Beth Martinez Humenik and Nancy Todd along with Reps. Dianne Primavera and Lois Landgraf introduced SB 16-027Concerning Allowing the Option for Medicaid Clients to Obtain Prescribed Drugs Through Mail, and, In Connection Therewith, Reducing an Appropriation. The bill has passed through the Senate Health & Human Services and Appropriations Committees with amendments in each committee and was passed on Second and Third Reading in the Senate Committee of the Whole. In the House, the bill passed out of the Health, Insurance, & Environment Committee with amendments and is now in the House Appropriations Committee.

The proposed bill specifically relates to persons receiving medical assistance (Recipients). The bill would allow recipients the option to receive prescribed medications, used to treat chronic medical conditions, through the mail. The bill also provides that the recipient may receive up to a certain amount of the medication and would still pay the same copayment amount as recipients receiving the medication by another method.

The proposed bill provides that the department of health care policy and financing shall encourage recipients to use any local retail pharmacy for mail delivery. Furthermore, the bill would require the state board of medical services to adopt rules, “to the extent allowed by federal law,” relating to the option to receive medications through the mail. Specifically, the bill proposes to make subsection (1)(a)(II) of C.R.S. § 25.5-5-505 mandatory, stating “the state board rules must include the definition of maintenance medications.”

The bill also proposes the addition of subsection (1)(c) of C.R.S. § 25.5-5-505. The subsection states “a pharmacy may provide maintenance medications through the mail to medical assistance recipients in accordance with all applicable state and federal laws if the pharmacy is enrolled as a provider with the state department and is registered with the state board of pharmacy, created and existing pursuant to C.R.S. § 12-42.5-103.”

Additionally, the Senate provided amendments to Section 2 of the proposed bill, Appropriations – Adjustments to 2016 Long Bill. The amendments provide, in relevant part, that to implement the Act, the appropriations made for the 2016-17 fiscal year to the Department of Health Care Policy and Financing for medical services premiums are adjusted in the following ways: (a) the general fund appropriation is decreased by $9,084; and (b) The cash funds appropriation from the hospital provider fee cash fund is decreased by $409. Furthermore, subsection (2) of Section 2 proposes that the fiscal year medical services premiums for the Department of Health Care Policy and Financing will be decreased by $20,424.

Mark Proust is a 2016 JD Candidate at the University of Denver Sturm College of Law.

SB 16-037: Modifying Requirements of Record-Keepers Under Colorado Open Records Act

On January 13, 2016, Sen. John Kefalas and Rep. Dan Pabon introduced SB 16-037Concerning Required Public Access Under the “Colorado Open Records Act” to Public Records as Defined By Such Act Contained in Digitally Stored Data Maintained By Governmental Bodies. The bill has passed through the Senate Health & Human Services and Appropriations Committees with amendments in both committees. It passed through the Senate with amendments and was assigned in the House to the Health, Insurance, & Environment Committee, where it was amended and referred to Appropriations.

This bill proposes to modify to the existing legal requirements under the Colorado Open Records Act (CORA) pertaining to the inspection of open records.

The bill updates outdated statutory language used to describe public records kept in miniaturized, electronic, or digital form as a foundation for inspection requirements in connection with such records.

It deletes existing language that would require the official custodian to take any measures necessary to assist the public in locating specific records and to ensure access to the records without unreasonable cost or delay. The bill proposes to substitute provisions that would require the official custodian to provide records in any nonproprietary file format and storage medium specified by the requestor. This would include digital copies of any computer files, email, records uploaded to an online storage location shared with the requestor, access through viewing stations for records kept on microfiche, or, at the custodian’s discretion, direct electronic access.

The bill also requires the official custodian to manipulate electronically or digitally stored data in order to delete any confidential data in response to a records request. Removal of such confidential information or data does not trigger certain requirements specified in CORA for the payment of fees for the generation or copy of a public record. The official custodian, however, may charge the requestor for the actual cost of the digital storage used, if any, and a research and retrieval fee for the time spent gathering the information.

Mark Proust is a 2016 JD Candidate at the University of Denver Sturm College of Law.

SB 16-040: Expanding Definition of “Owner” of Medical or Retail Marijuana Business

On January 19, 2016, Sen. Chris Holbert and Rep. Dan Pabon introduced SB 16-040Concerning Changes to the Requirements For Owners of A Licensed Marijuana Business. It was introduced into the Senate Business, Labor & Technology Committee and has since passed out of that committee and been referred to the Appropriations Committee.

This bill includes the definition of “owner”, in the medical and retail marijuana codes, a recipient of a commercially reasonable royalty associated with the use by a licensee of intellectual property and a licensed employee who receives a share of the profits from an employee benefit plan.

Under current law, an owner of a medical or retail marijuana business must have resided in Colorado for at least 2 years prior to applying for a license. The proposed bill would allow an owner to be either a 2-year resident of Colorado or a United States citizen on the date of the application for applications submitted on or after January 1, 2017. Additionally the bill would prohibit an owner from being a publically traded company and would require a controlling interest of the licensees to be Colorado residents and maintain that residency while holding a license.

The bill first proposes to add language to the definition of an “owner” under 12.3 of C.R.S. § 12-43.3-104 Definitions and 12 of C.R.S. § 12-43.4-103. The additional language would define an owner to be “a recipient of a commercially reasonably royalty associated with the use by a licensee of intellectual property; or a licensed employee who receives a share of the profits from an employee benefit plan.”

Second, the bill proposes to add Subsection XXI, which states “the parameters for a commercially reasonable royalty,” to C.R.S. § 12-43.3-202(2)(a) – Powers and Duties of State Licensing Authority. The bill proposes to add the same language to C.R.S. § 12-43.4-202(3)(a)(XVII).

Third, the bill proposes to remove subsection (m) of C.R.S. § 12-43.3-307(1) – Persons Prohibited as Licensees – and add subsection (n) “A publically traded company.” The bill proposes to add the same language to C.R.S. § 12-43.4-306(1)(l).

Additionally, the bill proposes the addition of the residency requirements discussed above under C.R.S. § 12-43.3-307.5 and the addition of the controlling interest language under C.R.S. § 12-43.3-310. The same language has been proposed to be added to C.R.S. § 12-43.4-306.5 and C.R.S. § 12-43.4-309.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

SB 16-014: State Mortgage Loan Originator Laws Amended to Conform to Federal Regulations

On January 13, 2016, Sen. Chris Holbert and Rep. Angela Williams introduced Senate Bill 16-014Concerning the Alignment of State Mortgage Originator Disclosures With Recent Changes in Federal Law. The bill has passed through both houses with amendments and has been sent to the governor.

This bill looks to repeal selected provisions of the Colorado “Mortgage Loan Originator Licensing and Mortgage Company Registration Act” which governs and sets deadlines for disclosures of certain costs and fees. The bill will replace those provisions with cross references to applicable requirements in the federal “Truth in lending Act” and “Real Estate Settlement Procedures Act of 1974.”

First, the bill proposes to repeal Section (1)(a) of C.R.S. § 12-61-914 Written Disclosure of Fees and Costs – Contents – Limits on Fees – Lock-in Agreement Terms – Rules , which would eliminate requirements under Colorado law, and add language directing mortgage loan originator’s requirements to federal law. Specifically, the proposal creates a cross-reference to the federal Truth and Lending Act, the federal Real Estate Settlement Procedures Act of 1974, the federal Equal Opportunity Act, Title V, the federal Home Mortgage Disclosures Act of 1975, the Federal Trade Commission Act of 1914, the federal Telemarketing and Consumer Fraud and Abuse Prevention Act, and various federal statutes.

Second, the bill proposes to repeal Section (1) of C.R.S. 38-40-102 Disclosure of Costs – Statement of Terms of Indebtedness.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

HB 16-1049: Amending Crowdfunding Act to Describe Entity Holding Escrow Account

On January 13, 2016, Rep. Pete Lee and Sens. Mark Scheffel and Owen Hill introduced HB 16-1049Concerning an Escrow Account Held by a Depository Institution on Behalf of an Issuer of an Intrastate Offering of Securities. The bill was assigned to the House Finance Committee.

This bill amends the “Colorado Crowdfunding Act,” enacted in 2015, by using the term “depository institution” to describe the entity that an issuer must use to set up an escrow account to hold proceeds from the intrastate sale of securities. Additionally, if enacted, the proposed bill would allow the issuer to terminate the escrow account once the minimum amount of proceeds from a sale of securities is deposited into the account.

The bill proposes to amend three sections of C.R.S. § 11-51-308.5: Section (3)(a)(IV)(D), Section (3)(a)(IV)(F), and Section (3)(a)(IX). First, under Section (3)(a)(IV)(D), it is proposed that the term “Depository Institution” be inserted in place of “bank, regulated trust company or corporate fiduciary, savings bank, savings and loan association, or credit union.”

Second, under subsection (F), it has been proposed that an exception be added, providing that “once the minimum offering amount has been raised and deposited in the escrow account, the issuer may terminate the escrow arrangement.”

Lastly, under subsection (IV), the term “depository institution” has been proposed to be inserted in place of the term “financial institution.”

Since its introduction, the bill passed out of the Finance Committee unamended and was referred to the House Committee of the Whole for Second Reading. It passed Second and Third Reading in the House, unamended, and was introduced in the Senate on February 1. On February 18, it passed out of the Senate Finance Committee, unamended, and was scheduled on the consent calendar of the Senate Committee of the Whole.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

HB 16-1035: Limiting Public Utility Securities to Electricity or Gas Services

On January 13, 2016, Rep. Jon Keyser introduced HB 16-1035Concerning the Scope of Statutes Making the Issuance of Securities by a Public Utility Conditional on Approval by the Colorado Public Utilities Commission, and, In Connection Therewith, Clarifying That the Approval Requirement Applies Only to Electric and Gas Utilities. The bill was assigned to the House State, Veterans, and Military Affairs Committee.

This bill introduces an amendment to an already existing bill and aims to narrow the statue, requiring advance approval by the public utilities commission for the issuance of securities to fund property acquisitions, facilities, repairs, and other expenditures, to apply only to electric and gas utilities.

The only amendment to C.R.S. § 40-1-104 is the addition of subsection (b) under the rule. Subsection (b) is proposed to read as follows: “The requirements of this section apply only to public utilities providing electricity or gas service.”

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

HB 16-1023: Allowing the Use of Deadly Physical Force by Business Owners Against Intruders

On January 13, 2016, Rep. Everett and Sen. Lambert introduced HB 16-1023Concerning the Use of Deadly Physical Force Against a Person Who Has Made an Illegal Entry Into a Place of Business. The bill was assigned to the House State, Veterans, and Military Affairs Committee.

This bill introduces amendments to an already existing bill, extending the right to use deadly force against an intruder under certain conditions to include owners, managers, and employees of businesses.

There are a number of proposed amendments to C.R.S. § 18-1-704.5, “Use of deadly physical force against an intruder.” First, under subsection (1), instead of the statute stating that citizens of Colorado have a right to expect absolute safety within their own homes, the amended statute will state that absolute safety is expected within citizen’s dwellings and places of business.

Second, under subsection (2), it is proposed that the statute include that not only any occupant of a dwelling be justified in using any degree of physical force, but also any owner, manager, or employee of a place of business. Additionally, “place of business” has been proposed to be included where deadly force may be used against a person who has made an unlawful entry. “The owner, manager, or employee” is also proposed to be included in the statute where those persons have a reasonable belief that a crime has been committed by the person making an unlawful entry into the place of business.

Third, owners, managers, and employees of a place of business are proposed to be included under subsection (3) and (4) of the statute, making those persons immune from criminal prosecution and civil liability if deadly force is used in accordance with subsection (2) of the statute.

Lastly, it has been proposed to amend C.R.S. § 18-1-705, “Use of Physical Force in Defense of Premises,” to read “he or she” and “himself or herself” instead of referring only to males.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.

HB 16-1005: Allowing Residential Use of Rain Barrels for Collection of Precipitation

On January 13, 2016, Rep. Esgar and Danielson and Sen. Merrifield introduced HB 16-1005Concerning the Use of Rain Barrels to Collect Precipitation from A Residential Rooftop for Nonpotable Outdoor Uses. The bill was assigned to the House Agriculture, Livestock, and Natural Resources Committee.

This bill allows residences to collect precipitation and reuse it on their residential property but only for outdoor purposes. A rain barrel is categorized as a storage container with a sealable lid that is used for collecting precipitation from a downspout of a rooftop. The bill specifies that the rain barrel must be located above ground outside of the residential home.

The bill says that precipitation from a rooftop may be collected if:

  • No more than two rain barrels are used, both having a combined storage capacity of one hundred ten gallons;
  • The precipitation collected comes from the rooftop of a building primarily used as a single-family residence or a multi-family residence with four or less units;
  • The collected precipitation must be used for outdoor purposes only, such as watering lawns or gardens; and
  • The precipitation collected is used only on the residential property from which it was collected.

The bill prohibits using the collected precipitation for drinking water or indoor household purposes.

The State Engineer is required by the bill to provide information on its website regarding the allowances and limitations of the use of rain barrels to collect precipitation. Additionally, in the event that the Department of Public Health and Environment develops best practices in accordance with C.R.S. § 25-1.5-210 the State Engineer is required to post a link on its website to the Department’s best practices list.

C.R.S. § 25-1.5-210 lays out the circumstances where the Department must develop best practices. The Department has to develop best practices for

  • Nonpotable usage of the collected precipitation, and
  • Disease and pest vector control.

If best practices are developed regarding the nonpotable usage of the collected precipitation, the Department must first post the best practices on its website, and second, inform the State Engineer that best practices have been posted so that the State Engineer may post a link on its website.

Mark Proust is a 2016 J.D. candidate at the University of Denver Sturm College of Law.