We’re just days away from the 2016 state legislative sessions, so today we bring you our epic state law trends forecast list. It includes everything from legislation on video-recording police, drones, Internet sales taxes, vaping regulations, and more than a few other surprises.
As the dust settles on state legislation for 2015, and its almost 30,000 state bills and regulations, it will be remembered for budding marijuana laws, a bevy of firearms legislation, and late-in-the-year efforts to efficiently capture online sales taxes from fantasy football, among a host of other bills and regulations.
But that’s so last year’s news. What will 2016 bring? We have 10 predictions, plus one we know is sure to come true. That is that 2016 will continue to be action-packed at the state level.
Dockets of Drones
At least four drone-related bills are in committee or pre-filed in anticipation of 2016 legislative sessions. In 2015, lawmakers in 45 states considered 168 bills related to drones, according to the National Conference of State Legislatures (NCSL), with 20 states enacting drone-related laws. In 2014, 10 states adopted similar legislation and 13 states did so in 2013.
How They’ll Go About It
Oregon: Rep. John Huffman (R-The Dalles) will introduce a bill to address concerns about recreational pilots who fly drones near wildfires, airports and other areas.
Pennsylvania: Sen. Mike Folmer’s (R-Lebanon) SB 971, the ‘Fourth Amendment Protection Act,’ 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. It was referred to the Senate’s Government Committee, but may be introduced in 2016.
Kentucky: Rep. Diane St. Onge’s (R-Lakeside Park) pre-filed bill would prohibit law enforcement from using drones to gather evidence without a warrant, unless in an emergency. The legislation includes a blanket prohibition on the use of weaponized drones by law enforcement.
Florida: Sen. Miguel Diaz de la Portilla’s (R-Miami) SB 642 would impose liability on owners of drones for damages caused by negligence.
Video Recording Police by the Public
It made the news several times in several states in 2015. With lawmakers nationwide dealing with an array of police and community-relations issues, at least eight states in 2016 will seek to balance protecting police from actions that endanger them, or interfere with their mission, with the rights of citizens to record public officials performing their duties.
Who is Considering Legislation?
Mississippi, New Hampshire & Oregon: Lawmakers will consider bills to allow citizens to record law enforcement, if filming does not interfere with police performing their duties.
Connecticut, Colorado: Proposed legislation would allow individuals to seek damages if law enforcement interferes with their ability to record or destroy their recordings.
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Colorado’s proposal also levies a $500 fine for damaged or destroyed recordings, plus the cost of the recording device, potential fines up to $15,000, and attorneys’ fees.
California: A proposed bill would clarify that recording law enforcement in public does not constitute willful resisting, delaying, or obstructing an officer, nor can it be cause for arrest.
New York: The proposed bill would make it a misdemeanor for officers to interfere with a person’s right to film them in public.
Texas: Lawmakers will consider two proposed measures, one allowing police to be filmed in performance of official duties without limits on distance, and the other prohibiting recording within 25 feet of law enforcement activity.
Campus Carry Proposals
According to the National Rifle Association (NRA), there are more than 25,000 federal, state and local gun laws in the United States, creating a confusing legal and regulatory matrix that varies from state to state, and in some areas, from local jurisdiction to local jurisdiction.
No component of state gun laws is more controversial and divisively debated than those that restrict, or permit, gun owners to carry weapons on college and university campuses.
According to the NCSL, 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.
Bills Pre-filed in Three States for 2016
Florida: Sen. Greg Evers (R-Baker) and Rep. Greg Steube (R-Sarasota) have sponsored bills to allow those with state-issued concealed carry permits to carry firearms on college campuses. It is essentially the same bill that was shot down in 2015.
Michigan: Sen. Mike Green’s (R-Mayville) SB 442 would allow concealed carry permit holders to apply for an exemption to carry their firearms into areas now off limits, including schools, childcare centers, sports arenas, large concert halls, bars, places of worship, hospitals, college dorms and classrooms. Green’s bill, introduced in 2015, allows concealed carry, but bans open carry, which is now legal for licensed gun owners. This has drawn the ire of open carry advocates, creating rare public rancor among normally closed-rank gun owners.
The bill was approved by the Senate Judiciary Committee in October but has not been introduced to the floor and, according to the Associated Press, is unlikely to be presented in 2015 or, perhaps, even in 2016, because Gov. Rick Snyder has vowed to veto it, as he did to a similar bill in 2012
Missouri: Senators Bob Dixon (R-Springfield) and Brian Munzlinger (R-Williamsburg) pre-filed a 2016 bill to eliminate state prohibition of concealed carry weapons on college campuses.
The Budding Marijuana Proposals
It is legal to purchase marijuana in four states – Alaska, Colorado, Oregon, Washington – and the District of Columbia. By this time next year, up to 10 more states could legalize marijuana, either by ballot measure or, for the first time, by legislation.
States Moving Forward on Marijuana
Massachusetts: In 2015, Rep. Dave Rogers (D-Belmont) and Sen. Patricia Jehlen (D-Somerville) introduced HB 1561, which would regulate marijuana in a way similar to alcohol. The bill received bipartisan endorsements from 13 co-sponsors, but Gov. Charlie Baker “vigorously” opposed it.
In December 2015, the Campaign to Regulate Marijuana Like Alcohol submitted more than 100,000 signatures demanding legalization, well above the 65,000 required to get an initiative before the legislature. If lawmakers don’t vote on the measure, proponents can present it directly to voters in November as a ballot initiative.
Nevada is one of 23 states that have decriminalized possession of small amounts of marijuana. In November 2016, voters will be asked to approve an ‘Initiative to Tax and Regulate Marijuana’ in a ballot measure.
California: California is a leader in medical marijuana regulation, but it’s still illegal to possess non-medical marijuana there. A 2012 initiative to legalize was defeated by a narrow margin. Voters will again see a ballot initiative next November – the Adult Use of Marijuana Act (AUMA).
New York: New York was among the first states to decriminalize marijuana in 1977. It legalized medical marijuana in 2014, and in 2016, legislators will consider two pending bills to legalize and tax marijuana.
Vermont: Vermont nearly became the first state to legalize marijuana by legislative action rather than ballot initiative in 2015, but the proposal stalled. In September, two senators said they would sponsor a 2016 legalization bill. Gov. Peter Shumlin favors legalization.
Connecticut: Lawmakers decriminalized marijuana in 2011, and approved medical marijuana in 2012. There are two pending bills to legalize and regulate marijuana in the Judiciary Committee. Many are certain that one, both, or a new bill, will be presented to lawmakers in 2016.
Maryland: The Maryland chapter of the National Organization for Reform of Marijuana Laws (NORML) says, “We’re expecting a good number of cannabis bills to be introduced next session, including a bill to fully legalize cannabis.”
Rhode Island: The Marijuana Regulation, Control and Taxation Act was proposed in 2015, but not presented for a vote. According to the Marijuana Policy Project, the bill “should be a top priority” in 2016.
Maine: Voters legalized medical marijuana in 1999 in a ballot initiative. Legalize Maine and the Campaign to Regulate Marijuana Like Alcohol are collecting the 100,000 signatures necessary to present voters with a ballot initiative to legalize marijuana. The petition must be filed by Feb. 1.
Delaware: Delaware legalized medical marijuana in 2011, but its first dispensary had not opened by June 2015 when it joined 23 other states in decriminalizing possession of small amounts of marijuana. The Marijuana Policy Project is campaigning for full legalization in 2016, although it admits it may be more feasible in 2017.
There are also ballot initiative drives to legalize marijuana in Arizona, Arkansas, Michigan, Mississippi, Missouri, Montana and Wyoming that the Marijuana Policy Project says may not gain traction this year, but will do so in 2017 and beyond.
Since 2010, the Center for Reproductive Rights reports “hundreds” of anti-abortion bills have been introduced in state legislatures and Congress.
That trend peaked in 2015 with at least 235 bills submitted in 39 legislatures, proposing restrictions on abortion providers and access, according to RH Reality Check.
Legislators nationwide adopted nearly 50 bills restricting access to abortion. Sixteen states approved consent mandates, and stricter protocols for abortion medications. That trend is expected to continue in 2016.
Proposals Slated for 2016
Missouri: Rep. Mike Moon (R-Ash Grove) said he would propose a bill to make abortion illegal by creating a law that states life begins at conception. Missouri lawmakers approved more anti-abortion bills in 2015 than any other state – at least 20.
Kentucky: A dozen House Republicans in November pre-filed a 2016 proposal to end state funding for Planned Parenthood clinics in Lexington and Louisville, which totaled $331,309 in 2015.
Montana: The House approved a November 2016 ballot measure that will ask voters to endorse a constitutional amendment that defines a “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 is awaiting Senate approval.
Alabama: Sen. Gerald Allen (R-Tuscaloosa) told The Decatur Daily that he intends to sponsor a ‘Fetal Heartbeat Bill’ in 2016. The legislation has been in the House since 2013.
Utah: Sen. Margaret Dayton (R-Orem) and Sen. Curt Bramble (R-Provo) told the Deseret News they will submit 2016 bills to strip Planned Parenthood of funding and outlaw certain abortion procedures.
Massachusetts: The Massachusetts Public Funding of Abortion Initiative will be presented to voters in November 2016. The measure is a proposed constitutional amendment to give legislators the authority to ban use of MassHealth or other public funds to pay for abortions.
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Electrical Consumption in Real-Time
The development of “smart meters” that record electricity consumption in real time, and transmit data via wireless for monitoring and billing, has made analog meters obsolete and inefficient.
According to the Energy Information Administration, U.S. electric utilities have installed 52 million smart meters since they became commercially available.
But not everyone wants a smart meter. Some have health-related fears about smart meters’ radio frequency (RF) transmissions, and concerns about transmission of private data.
At least 17 states 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. Most aren’t happy about paying a fee to keep their old meters.
To Meter, or Not to Meter?
At least six state legislatures, below, will be presented with meter-related bills in 2016.
Pennsylvania: The state requires utilities to install smart meters, but two proposed bills will allow customers to opt out if they pay a one-time fee or monthly surcharge.
Maryland, Massachusetts & Texas: Lawmakers in these states will be presented with proposals that replicate a Vermont law that allows ratepayers to keep old meters, or have smart meters removed at no cost.
Ohio, New Jersey: Lawmakers will consider proposals that replicate a New Hampshire law mandating utilities get written permission as an “opt-in statement” from ratepayers, before installing smart meters.
Electronic Cigarettes and Vaping
Since they first arrived in the United States in 2007, electronic cigarettes have become increasingly popular because inhaling the heat-flavored, smokeless devices – also known as vaping – is less obtrusive than regular cigarettes and, depending on where you fall in the debated studies claim, not as harmful.
However, 2015 was a bad year for the vaping industry. Not only did the federal Food and Drug Administration indicate it will soon impose guidelines that regulate e-cigarettes the same as tobacco products, but legislators zeroed in on the new industry by proposing more than 200 vaping-related bills in 40 states.
Proposed and adopted bills include dramatic tax increases on e-cigarettes 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.
In 2015, according to the American Vaping Association, Connecticut, Delaware, Maine, Hawaii and Oregon joined New Jersey, North Dakota, Utah and more than 440 local governments in banning e-cigarettes in nearly all indoor public areas, in accordance with their Clean Indoor Air Acts.
The pressure is not likely to relent in 2016. Here are some of the proposed bills likely to surface next year:
Those Blowing Smoke, or the Lack of It
California: Sen. Mark Leno’s (D-San Francisco) proposed bill to ban e-cigarettes in public places failed to get out of committee but is very likely to reappear in 2016.
New York: AB 2595, with 15 Democrat co-sponsors, would regulate vaping as a tobacco product within the context of the state’s Clean Indoor Air Act, banning them in most public places. It’s one of 13 pending or proposed vaping-related bills circulating in Albany.
Alaska: SB 1, co-sponsored by six Republicans and five Democrats, would ban smoking, including vaping, in all public places. It has been referred to the state’s finance committee and will likely be introduced in 2016.
Pennsylvania: HB 682, with 11 co-sponsors, proposes an indoor vaping ban. The bill was endorsed by the House Health Committee last November, and will likely be on the 2016 docket.
Online Selling and Sales Tax
Two Supreme Court rulings – National Bellas Hess v. Illinois in 1967, and Quill Corp. v. North Dakota in 1992 – determined catalog and online sellers need only collect sales taxes for states in which they have a physical presence or “nexus.”
Therefore, it is the customer’s responsibility to pay sales taxes for online purchases.
Since the state has virtually no way to monitor these transactions, few people volunteer to do so, costing states, some estimate, billions in uncollected revenues.
In 2008, New York passed an “affiliate nexus law” that redefined what nexus meant. It now includes 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 in 2015: Michigan, Nevada, Vermont, Tennessee and Washington.
Federal legislation, such as the 2013 Senate Marketplace Fairness Act, and the 2015 House Remote Transactions Parity Act, propose expanding states’ capacities to levy sales taxes on online transactions.
However, there doesn’t appear to be any urgency, especially in the House, to adopt them soon and many states without affiliate nexus laws feel they cannot afford to wait. That means several are considering adopting nexus laws of their own to recoup sales tax revenues. Those that could materialize in states in 2016 are below:
The States Aiming to Collect
Oklahoma: The Oklahoma Retail Merchants Association (ORMA) is pushing for a nexus law in 2016, according to The Oklahoman. ORMA says growth in Internet shopping has led to a drop in state sales and use-tax revenues. As a result, the association says, Oklahoma City’s sales tax revenues have declined 12.3 percent, forcing the city into a hiring freeze.
Ohio: Retailers here are also spearheading a drive to adopt a nexus law in 2016. The Ohio Council of Retail Merchants claims as few as 2 percent of Ohioans pay taxes on online purchases.
A 2011 University of Cincinnati study found the state lost $1.1 billion in uncollected tax revenues from ecommerce between 2007 and 2012. Meanwhile, the University of Cincinnati estimates brick-and-mortar retailers lost $600 million in 2011 because consumers shop online to avoid sales taxes.
Utah: Lawmakers have proposed several online sales tax bills in the last few years, but none have progressed beyond committee. Sen. Wayne Harper’s (R-Salt Lake City) SB 192 got onto the Senate floor in March, but has not advanced. Supporters say the need to capture uncollected sales taxes is greater than ever as Utah is collecting less in sales tax than a decade ago. According to Harper’s bill, taxes on online sales could generate between $89 and $300 million a year.
Fantasy Sports Saga Will Continue
According to the Fantasy Sports Trade Association, nearly 58 million people spent $3 billion playing online fantasy football in 2015. The recent advent of daily gaming offered by DraftKings.com and FanDuel.com – who own 95 percent of the daily fantasy sports (DFS) market – has spurred a boom in Internet gaming.
But is it gambling?
DFS is classified as illegal gaming in seven states, including three that prohibited it this fall, such as Nevada, ironically.
DraftKings.com and FanDuel.com say DFS is skill. New York State says it is chance. What a judge says in a pending court ruling will ultimately determine in many states how DFS is regulated, if not outlawed altogether, while Maryland and Kansas are the only two states that have formally legalized fantasy sports contests.
Meanwhile, lawmakers in several more states in 2016 will ponder proposed bills to make statutes more accommodating for DFS.
Who is Doing What?
Pennsylvania: Rep. George Dunbar’s (R-Westmoreland) HB 1197 is an “Internet gaming act” that would require online DFS companies to form partnerships with the state’s 12 casinos.
Dunbar’s proposal would assess DFS companies a onetime $1 million casino fee and 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.
California: Rep. Adam Gray’s (D-Merced) AB 1437 would license and regulate DFS sites through the California Gambling Control Commission. Other lawmakers want State Attorney General Kamala Harris to analyze the legality of DFS before they consider Gray’s bill.
Florida: Sen. Joe Negron (R-Stuart) and Rep. Matt Gaetz (R-Fort Walton Beach) are co-sponsoring SB 832, which exempts DFS from state gambling laws, and requires operators to register with the Florida Department of Agriculture and Consumer Services. The bill requires operators to pay $500,000 upfront, and $100,000 in annual registration and regulatory fees.
Of course, that’s if DraftKings.com can survive a Tampa grand jury probe, and if Attorney General Pam Bondi can be legally satisfied that DFS doesn’t violate state gambling statutes.
New York: Just because the state is suing DraftKings.com doesn’t mean they can’t be partners. Sen. Michael Razenhofer’s (R-Amherst) SB 6092 will change state law to make DFS defined as a game of skill.
Illinois: Rep. Mike Zalewski’s (D-Chicago) HB 4323, the Fantasy Contests Act, has been lauded by both FanDuel.com and DraftKings.com as the ideal model for regulation.
Indiana: Rep. Alan Morrison (R-Terre Haute) will draft a bill requiring DFS sites to partner with state-licensed casinos.
Minnesota: Rep. Joe Atkins (D-Inver Grove Heights) will sponsor legislation that ensures DFS is legal and that operators are licensed by the Department of Public Safety, which will include background checks and audits.
Second Chance Voting
According to the Sentencing Project, nearly six million Americans will be banned from voting in the 2016 presidential election, because they were convicted of a felony and happen to live in one of nine states that ban former inmates from voting for decades — if not permanently — after release.
In 2015, 56 bills relaxing restrictions on felon voting rights were introduced in 20 states, according to the NCSL. North Dakota, Kentucky and Wyoming lawmakers enacted legislation restoring rights, or loosening restrictions. Maryland legislators did so too, but Gov. Larry Hogan vetoed the law.
With the exception of Maine and Vermont, which have never rescinded voting rights, all states restrict felons’ access to the ballot box to some degree.
With Kentucky and Wyoming restoring felons’ voting rights, only Florida and Iowa disenfranchise inmates for years after they have served their time. Both may soon be forced into changing this practice. A petition drive is relatively certain of getting on Florida’s November 2016 ballot, and Iowa is being sued by the American Civil Liberties Union.
Seven states impose extensive post-prison penalties on offenders. Fifteen only ban convicts from voting while in prison. Four restore voting rights after completing parole, and 20 require the convict to complete parole and/or probation before they can legally cast a ballot.
Because it is an election year, legislators may not be as active in restoring felon voting rights in 2016 as they were in the last few years. However, at least two petition drives will address the issue:
The Two Most Likely
Florida: Floridians for a Fair Democracy must secure 683,149 signatures by Feb. 1 to get the Florida Voting Rights Restoration for Felons Initiative on the Nov. 8 ballot. The measure would restore voting rights of convicts after they complete terms of their sentence, including parole or probation. It would not apply to those convicted of murder or sexual offenses. It is supported by the Florida Rights Restoration Coalition, ACLU of Florida, League of Women Voters, Faith in Florida and Path to the Ballot.
Maryland: Local groups, as well as the American Probation & Parole Association and the New York University’s Brennan Center, are lobbying legislators for a January override of Hogan’s veto. They need 85 votes – two more than the 83 lawmakers who approved the bill in April. There is also a mounting effort to organize a ballot petition.
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