On Wednesday, the Arizona Senate passed SB 1377 in a bipartisan vote, a bill that offers protection from litigation for businesses and others who act in “good faith” to implement reasonable policies to protect their customers, clients, and patients.
The bill, sponsored by Sen. Vince Leach, is considered “a critical piece of legislation” by large and small business organizations, who hope to open fully now that important COVID-19 metrics have dropped dramatically in the state.
DATA UPDATE:
Arizona’s number of ICU beds in use by #COVID19 patients decreased to 430. The number of ventilators in use by COVID-19 patients decreased to 253. 1/ pic.twitter.com/ILX4Uid14d
Specifically, SB 1377 establishes “civil liability standards for specified acts or omissions during a state of emergency for a public health pandemic.” The standards would be established retroactively to March 11, 2020. March 11, 2020 is the date Gov. Doug Ducey declared a state of emergency due to COVID-19.
“Small business owners were crushed by the pandemic lockdown, and now face the prospect of enduring years of frivolous litigation by trial lawyers looking to cash in by blaming the spread of Covid on employers,” said Scot Mussi, President of the Arizona Free Enterprise Club. “SB 1377 would provide much needed legal protection to small business owners so that they are not sued for simply trying to stay open during the current crisis.”
The sponsor introduced the bill to ensure a presumption that any person or “provider” acted in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor, or the public from injury or loss through reasonable attempts to comply with rely on published guidance issued by a federal or state agency in connection to a public health pandemic.
1. Precludes from liability for damages, during a public health pandemic state of emergency declared by the Governor, a person or provider who acts in good faith to protect a customer, student, tenant, volunteer, patient, guest or neighbor, or the public (litigant), from injury from the public health pandemic for injury, death or loss to person or property that is based on a claim that the person or provider failed to protect the litigant from the effects of the public health pandemic, unless it is proven by clear and convincing evidence that the person or provider failed to act or acted and the failure to act or action was due to that person’s or provider’s willful misconduct or gross negligence.
2. Establishes a presumption that a person or provider acted in good faith if the person or provider adopted and implemented reasonable policies related to the public health pandemic.
3. Applies the standard for liability to all claims that are filed before or after the general effective date for an act or omission by a person or provider that occurred after March 11, 2020, and that relates to a public health pandemic that is the subject of the state of emergency declared by the Governor.
4. Exempts claims for workers compensation from the outlined liability standard.
5. Defines provider as:
a) a person who furnishes consumer or business goods or services or entertainment;
b) an educational institution or district;
c) a school district or charter school;
d) a property owner, property manager or property lessor or lessee;
e) a nonprofit organization;
f) a religious institution;
g) the state or a state agency or instrumentality;
h) a local government or political subdivision, including a department, agency or commission of a local government or political subdivision;
i) a service provider;
j) a health professional; or
k) a health care institution.
Health Professionals and Health Care Institutions
6. Precludes from liability for damages, during a public health pandemic state of emergency declared by the Governor, a health professional (professional) or health care institution (institution) that acts in good faith in any civil action for an injury or death that is alleged to be directly or indirectly the professional’s or institution’s action or omission while providing health care services in support of the state’s response to the state of emergency, unless it is proven by clear and convincing evidence that the professional or institution failed to act or acted and the failure to act or action was due to that professional’s or institution’s willful misconduct or gross negligence.
7. Applies the outlined limited liability to any action or omission that occurs:
a) during a person’s screening, assessment, diagnosis or treatment and that is related to the public health pandemic that is the subject of the state of emergency; or
b) in the course of providing a person with health care services and that is unrelated to the public health pandemic that is the subject of the state of emergency if the professional’s or institution’s action or omission was in good faith support of the state’s response to the state of emergency, including:
i. delaying or canceling a procedure that the professional determined in good faith was a nonurgent or elective dental, medical or surgical procedure;
ii. providing nursing care or procedures;
iii. altering a person’s diagnosis or treatment in response to an order, directive or guideline that is issued by the federal government, the state or a local government; or
iv. an act or omission undertaken by a professional or institution because of a lack of staffing, facilities, equipment, supplies or other resources that are attributable to the state of emergency and that render the professional or institution unable to provide the level or manner of care to a person that otherwise would have been required in the absence of the state of emergency.
8. Establishes a presumption that a professional or institution acted in good faith if the professional or institution relied on and reasonably attempted to comply with applicable published guidance relating to the public health pandemic that was issued by a federal or state agency.
9. Allows a party to introduce any other evidence that proves the professional or institution acted in good faith.
10. Applies the standard for liability to all claims that are filed before or after the general effective date for an act or omission by a person or provider that occurred after March 11, 2020, and that relates to a public health pandemic that is the subject of the state of emergency declared by the Governor.
11. Exempts claims for workers compensation from the outlined liability standard.
Under the legislation, a provider is defined as a person who furnishes consumer or business goods or services or entertainment, as well as an educational institution or district, school district or charter school, property owner, property manager or property lessor or lessee, a nonprofit organization, a religious institution, a state or a state agency or instrumentality, a local government or political subdivision (including a department, agency or commission), a service provider, a health professional, or a health care institution.
Anyone wishing to claim an “injury, death or loss to person or property” based on a failure to protect the litigant from the effects of the public health pandemic must be able to show the person or provider acted with “willful misconduct or gross negligence.” The liability protection also includes inactions which are alleged to have caused harm.
A bill that would allow many municipalities and counties to “assess” hotels and other transient lodging businesses up to $5 per room per night to fund a tourism promotion agency was defeated Tuesday on the House Floor but it can be reconsidered within 14 days after a last minute motion for reconsideration passed by voice vote.
Currently the Arizona Office of Tourism (AOT) is responsible for promoting and developing tourism in Arizona under the supervision of a director who is appointed by the governor. The duties of the AOT include conducting a marketing campaign on the attractions of the state, as well as promoting Arizona via state, national and international media.
However, HB2161 would allow cities, towns, and counties to adopt a resolution to form a Tourism Marketing Authority (TMA) to be funded by a new “assessment” against rooms used for transient lodging (less than 30 day stays). A local TMA would be run by a “recognized” 501c6 nonprofit tourism promotion agency
The TMA could only be formed upon signed approval of the owners of at least 67 percent of the transient lodging rooms within the boundary of the proposed TMA, meaning a transient lodging property could be forced into the TMA even if they don’t wish to participate. The bill calls for all of the per room, per night assessments to be distributed to whatever entity is contracted to run the TMA.
If no recognized non-profit is available in an area, then the tourism promotion office of one of the member municipalities or county could be contracted to manage the TMA. HB2161 does not provide for the already established, taxpayer-funded Arizona Office of Tourism to have any oversight of the TMA operations.
While many tourism promotion groups support the bill, questions were raised during committee and floor discussions about the need to create a business-funded entity that would be responsible for promoting tourism in a certain area without substantial public control or oversight.
HB2161 calls for each TMA to be governed by the board of directors of the tourism promotion agency and at least one person from one or more of the municipalities or county. The only concession in the bill to concern about public oversite is that TMA board meetings would have to comply with public meeting and public records laws.
Groups such as the Arizona Tax Research Association and Republican Liberty Caucus of Arizona oppose the bill, while cities such as Mesa, Scottsdale, and Surprise have taken a neutral position.
The Tourism Marketing Authority created by the bill would terminate after 10 years unless the legislature approves a onetime 10-year renewal.
Sheriff’s deputies across Arizona will be able to practice law or form a partnership with an attorney-at-law if House Bill 2763 becomes law, but first the bill has to make it out of the House Rules Committee on Tuesday.
The state’s 15 sheriffs and their deputies, along with all constables and their deputies, are currently prohibited from practicing law. They are also prohibited by statute from forming any type of partnership with an attorney.
HB2763 as initially introduced by Rep. Kevin Payne (R-LD21) would have removed all those prohibitions. However, the House Committee on Military Affairs & Public Safety chaired by Payne amended the bill last week to put the prohibition back in place only for sheriffs, constables, and constable deputies.
That would leave deputies working for the 15 county sheriff’s offices with a new career path or investment opportunities, especially now that the Arizona Supreme Court allows nonlawyers to have ownership of or an investment interest in a for-profit law firm.
The supreme court also approved a new category of licensee -a Legal Paraprofessional (LP)- who can represent clients in court in matters of administrative law, family law, debt collection, and landlord-tenant disputes. LPs may also be granted limited jurisdiction for some other civil matters as well as criminal matters.
It’s unclear what position the Arizona Peace Officers Standards and Training (AZPOST) board takes on Payne’s legislation, which could lead to questions of conflict of interest and financial motivation.
If HB2768 clears the Rules Committee it still has to clear the full House and then the Senate before getting to Gov. Doug Ducey.
PHOENIX – As Big Tech continues to flex it monopolistic powers, State Rep. Regina Cobb is hoping to help consumers save money and innovators compete in the tech market. Rep. Biasiucci has thrown his support behind Cobb’s bill, HB2005, which will allow app developers avoid what the two lawmakers call “devastating” fees imposed by big tech monopolies.
Currently all app developers must sell their products through Apple and Google’s app distribution stores. As a result, app developers are stuck using Apple and Google’s in-app payment processing. HB2005, if passed, would restrict the ability of certain digital application distribution platforms to require use of a specific in-application payment system.
HB 2005 would allow small app developers to provide payment options to their customers rather than being forced to use solely the dominant platform’s service, freeing them from the “App Tax” and lowering costs for consumers.
HB 2005 will be heard in the House Appropriations on Monday, February 22.
House Overview of Provisions
1. Prohibits a provider of a digital application distribution platform whose cumulative downloads from Arizona users in a calendar year exceed 1,000,000 from:
a) Requiring an Arizona-domiciled developer or Arizona user to use a specific in-application payment system as the sole method of accepting payments for either a software download or a digital or physical product; or
b) Retaliating against an Arizona-domiciled developer or Arizona user for using an inapplication payment system or digital application distribution platform not associated with the provider. (Sec. 1)
2. States that an agreement which violates the prohibition is unenforceable. (Sec. 1)
3. Exempts digital distribution platforms used for specialized categories of applications that are provided to users of hardware intended for specific purposes (such as gaming consoles and music players) from the prohibitions. (Sec. 1)
4. Allows the Attorney General to bring an action on behalf of aggrieved parties and seek legal or equitable relief on their behalf. (Sec. 1)
5. Defines Arizona user, developer, digital application distribution platform, domiciled in this state, in-application payment system, provider and special-purpose digital application distribution platform. (Sec. 1)
According to the two lawmakers, developers are charged a 30% processing tax referred to as the “App Tax” for a service they are forced to use, rather than a traditional payment processing fee of 3%.
The lawmakers argue that the “App Tax” tax not only “penalizes small app developers but also limits choice for consumers and forces Arizonans to pay more.”
the Arizona House Government and Elections Committee passed HCR 2015 for an amendment proposal convention that would help put term limits on Congress. The resolution is sponsored by Rep. Ben Toma representing District 22, part of the Phoenix metropolitan area.
The resolution passed the house committee with a vote of 7-6. Thirty-five Arizona state lawmakers in the 2021 legislature have taken the term limits pledge (see listing below) promising to support an Article V convention for term limits on Congress.
The state senate counterpart resolution, SCR 1025, is sponsored by Sen. Kelly Townsend. Both resolutions are being guided through the legislature by U.S. Term Limits (USTL), a national, nonprofit advocating for term limits at all levels of government.
“This has been a great week for Arizona passing the USTL resolutions in committees in both chambers,” says USTL’s Arizona State Director, Jim Olivi. On Monday, Sen. Townsend’s bill passed its hearing in the Senate Government committee. “When 85% of people approve of anything, you know it’s a bipartisan proposal,” said Olivi.
According to a 2020 poll by McLaughlin & Associates, congressional term limits is the most popular and bipartisan issue in Arizona, with 85 percent support statewide. That includes backing from 87 percent of Republicans, 85 percent of independents and 83 percent of Democratic voters.
Both resolutions are expected to be voted on in their respective chambers as early as next week.
