Jerry Kopel

Letters I never wrote but probably should have to Sens. Ray Powers, R-El Paso; Doug Lamborn, R-El Paso; and Rep. Gil Romero, D-Pueblo.

Dear Sen. Powers:

You wanted to settle disputes between homeowners and builders of new housing with SB 147, but the bill was MUCH broader than that. It would have affected EVERY home owner in Colorado, whether a single residence or part of a unit.

Your definition of "Builder" in SB 147 was "a person who contracts with a homeowner for: (1) The construction or sale of a new residence constructed by that person; (2) the addition to or alteration of an existing residence by that person; or (3) the repair of a new or existing residence by that person."

So a builder isn't really a "builder". It's a plumber you call to fix the kitchen sink; it's an electrician who adds additional outlets in a room; it's the painter who tears off the wallpaper and repaints the room; it's a roofer; it's the carpenter who repairs a door that won't shut; it's a person who attaches a new system of blinds to the kitchen window, or repairs the rain gutters that run around the outside of the house.

There has never been a problem in how homeowners handle dealings with that kind of work. We do it every week. You gave the repairman 30 days to react after forcing the homeowner to send an exact kind of writing (provided in your bill) to the repairman setting out what's wrong. If I call someone up and say "The door doesn't shut. Please come out and redo the work," the repairman can simply ignore me, because I didn't follow SB 147.

What I'm suggesting is SB 147 did exactly what so many legislators complain lawyers do: Screw up the works. I assume SB 147 (which passed the Senate but died in the House) will be reintroduced in 1999. Please deal only with "construction or sale of a new residence constructed by the builder" and leave the rest of us homeowners out of it. We aren't involved in class actions and we are not your problem.

Dear Rep. Romero:

I appreciate your removing HB 1383 on physician discipline from consideration by the House Health Committee. But I'm disappointed that you added footnote 197 in the Appropriations Bill to the Dept. of Regulatory Agencies:

"The Board of Medical Examiners is requested to report to the Joint Budget Committee by August 1, 1998 on its study of issues related to the complaint and disciplinary process. These issues include but are not limited to peer review, disciplinary standards, and public access." Fortunately Rep. Mary Ellen Epps, R-El Paso, removed the footnote by amendment on second reading.

Our Board of Mecial Examiners is, according to the consumer group Public Citizen, the fourth best state medical board in the country in percentage of physicians disciplined. Consumers of medical services applaud what our medical board is doing. The board's duty is to protect consumers of services, not the physicians regulated by the board.

There is a better, fairer way to consider discipline. The Medical Board is not due for Sunset review until the year 2009. That is totally ridiculous, since the last review was in 1994. If you carried a bill to provide a Sunset review in 2000 with a July l, 2001 repealer date, a normal and balanced bill on all aspects of medical licensing would be the result.

Dear Sen. Lamborn:

Your HB 1170 on "Shooting Ranges" has now passed the House and Senate and is on the Governor's desk. (You were the chief House sponsor before replacing Charles Duke in the Senate. Now Rep. Russ George is the official House sponsor.)

The bill has some problems. The legislative declaration criticizes "inconsistent, outdated and unnecessary noise restrictions" and declares the need "to exempt qualifying shooting ranges from enforcement of laws, ordinances, rules and orders regulating noise." Your bill's goals "are a matter of statewide concern and preempt any the contrary."

This bill is on the governor's desk. My comments will appear in this Friday's Statesman.

You can preempt local laws of home rule cities by declaring an issue "a matter of statewide concern" although the state Supreme Court can still declare it ISN'T "a matter of statewide concern"

as it did with the "no residency needed for municipal employment" legislative statute several years ago. The court has not always been happy with preemption of home-rule zoning laws.

There is also an equal protection problem by denying rights to those homeowners who have "established residence within the jurisdiction after Jan. l, 1985."

Those individuals can't, under your bill, bring complaints about noise levels to local government which could result in official criminal or civil action against the shooting range. But the neighbor next door who moved into the residence Dec. 31, 1984 can complain. Is there a rational basis for the classification? BOTH parties relied on zoning laws in effect at the time of purchase.

The other portion of your bill deals with lawsuits against shooting ranges by individuals on the grounds of "noise". Here you ban all such lawsuits IF the shooting range (in one example) complied with local laws that applied "at the time of (the shooting range's) construction or initial operation.

That is retrospective and while it does not restore a fifty-year-old law (as one example) to the statute books, it has the same effect as if it had. Both sides will have to argue the actual language of a law long dead which was possibly overturned by a vote of the electorate.

The legislature can immunize persons or things from lawsuits. But usually there are exceptions when there are intentional acts that could have been averted and could result in injury from "noise". In HB 1170 there are no exceptions.

Rep. Larry Schwarz, R-Wetmore carried HB 1307 last year dealing with the same subject. He preempted local law and set up a shooting range noise standard of 130 decibels at any point along the property line of the shooting range. Neither local government nor any individual could sue if the noise range was 130 decibels or less. That preemption approach was proper, it was consistent, and of course, the bill died in House State Affairs.

Your bill doesn't mention decibels. Let's assume it would also allow 130 decibels (under a 1918 local law that set no noise standards). The maximum federal limit for most railroad sounds is 96 decibels. Every time the decibel level increases 10 points, the sound increases 10 times, so 106 decibels is 10 times louder than 96 decibels.

Here is what homeowners living near shooting ranges face, according to a 1996 report by the Mayo Foundation For Medical Education and Research as to hearing injuries: Jackhammer three feet away, 120 decibels; jet engine 100 feet away, 130 decibels; a shotgun blast, (no distance given) 140 decibels. The maximum job noise exposure allowed by law is 110 decibels for 30 minutes, and 115 decibels for 15 minutes.

"If you ...are bombarded by...loud or continuous noise, you are at risk of developing sensorineural hearing loss. Because this kind of loss generally is irreversible, it is very important to prevent it."

Sound levels do decline based on distance. But after investing heavily in a home relying on laws in effect at the time of purchase, will that decision now result in an injury to hearing?

Your bill had few votes in opposition. Is it possible that most legislators realized the bill would go down in flames at its first court appearance?

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.

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