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F I S C A L I M P A C T R E P O R T

SPONSOR Smith

DATE TYPED 3/2/05

HB

SHORT TITLE Reasonable Precautions for Convenience Stores

SB 1068

ANALYST Hadwiger

APPROPRIATION

(in $000s)

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

($70.0) Recurring General Fund

($70.0) Recurring Federal Funds

(Parenthesis ( ) Indicate Expenditure Decreases)

REVENUE

Estimated Revenue

Subsequent

Years Impact

Recurring

or Non-Rec

Fund

Affected

FY05

FY06

($70.0)

($70.0) Recurring

Federal Funds

(Parenthesis ( ) Indicate Revenue Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

New Mexico Department of Environment (NMED)

SUMMARY

Synopsis of Bill

Senate Bill 1068 would enact the “Reasonable Precautions for Convenience Stores Act), codify-

ing most of the provisions of Title 11, Chapter 5, Part 6 of existing state regulations with regard

to employee safety in convenience stores. Substantive differences between existing regulations

and the proposed bill include:

1.

If a store does not have a major crime for two years, they would be exempt from the late-

night security measures.

Senate Bill 1068 -- Page 2

2.

Where current regulations would require that the store be closed between 11 p.m. and 5

a.m. if other late-night security measures are not taken, SB1068 would require that, when

the store is closed, signs would be posted stating it is closed and prohibiting transactions

while stocking and custodial duties are performed. There are no specified hours for the

closure in the bill.

3.

The bill defines “department” as NMED, but does not specify that NMED would enforce

the statutory provisions.

4.

The bill does not provide penalties for violations of most of its provisions.

5.

Under existing regulations, if a security surveillance system malfunctions for eight hours

or more, alternative security must be provided. In this bill, if the security surveillance

system malfunctions, alternative security would not be required for 72 hours.

6.

The bill would significantly lengthen the period of time allowed for convenience store

owners to provide documents to NMED staff. In current regulations, documentation on

employee training and inspection and maintenance of security surveillance and alarm sys-

tems must be provided to NMED staff within 48 hours of the department’s request (not

including weekends and holidays). Senate Bill would require that these records be made

available to NMED staff within 120 days (about 25 weeks) of the department’s request

(not including weekends and holidays).

7.

The bill would allow convenience stores to use, as a security alarm system, an in-house,

24-hour employer-staffed central monitoring capacity away from the convenience store

and with the ability to notify law enforcement or a private security agency of an unlawful

act in progress.

Significant Issues

Beginning February 1, 2005, convenience stores in New Mexico were required to comply with

new regulations promulgated by NMED to protect convenience store employees. These regula-

tions apply to stores open between 11 p.m. and 5 a.m. and would require them either to have two

workers on duty or to limit public access to store clerks through bulletproof glass or other safety

features. These regulations supplement previous mandates for safety cameras, panic alarms and

adequate lighting.

SB1068 would replace those regulations with largely unenforceable provisions with regard to

convenience store employee safety, because the bill does not specify an enforcement agency for

most of its substantive provisions and does not specify compliance penalties for the same provi-

sions.

NMED indicated the following concerns about SB1068:

1.

SB1068 provides for penalties only if the employer fails to make documentation available

upon request of the department within one hundred twenty days. There would be no pen-

alties for violating other provisions. Currently those penalties are specified in other state

OSHA statutes which would not apply to the provisions in this bill.

2.

The exemption from late-night security measures could have tragic consequences by

eliminating the very precautions that caused the store to prevent crimes for two years

without crime. This exemption was rejected by the Environmental Improvement Board

during its deliberations on the regulations last year.

3.

The bill does not delegate statutory authority for any state agency to implement or en-

force any of its provisions.

Senate Bill 1068 -- Page 3

4.

The time period specified for the employer to provide documentation is unreasonably

long and would make it difficult for the Occupational Health and Safety Bureau to meet

mandatory time limits on enforcement actions.

5.

It is possible that a store that remains open 24 hours per day would be entirely exempted

from employee security measures.

FISCAL IMPLICATIONS

General fund and federal fund expenditures would decrease reflecting elimination of NMED’s

role in enforcing most convenience store employee safety regulations.

ADMINISTRATIVE IMPLICATIONS

NMED would be unable to administer the provisions of SB1068 without statutory authority to do

so under the Act. Even with statutory authority, NMED would also require statutory penalties to

enforce provisions other than the provision of documents for which penalties are specified.

Section 4 of SB 1068 provides uneven requirements that would force the enforcement agency to

apply inconsistent standards to convenience stores throughout the state. As written, this section

would require convenience stores open between 11 pm and 5 am to provide either: one of five

staffing precautions and provide clear lighting at night, or apply for an exemption from the staff-

ing or lighting requirements. The lighting requirement should be a stand alone requirement for

all convenience stores.

OTHER SUBSTANTIVE ISSUES

This bill appears to be an attempt to amend an existing state agency rule, 11.5.6. NMAC. The

proponents of this bill have had substantial opportunities to present these amendments to the

rulemaking authority. SB 1068 represents an attempt to subvert the authority granted by the Leg-

islature to the Environmental Improvement Board in NMSA 1978, Section 74-1-8 to promulgate

rules and standards relating to the Occupational Health and Safety Act, NMSA 1978, Section 50-

9-1, et.seq.

SB 1068 does not provide the Environment Department with the authority to implement its pro-

visions through rulemaking or other means. Without such authority, the Department will be un-

able to enforce this Act . Additionally, the state Occupational Health and Safety Bureau is a state

plan program under the federal Occupational Safety and Health Act. The federal Act requires

that the state OSHA statutes and rules comply with the state plan requirements. The state OHSB

would not be able to enforce SB 1068 as it does not comply with federal OSHA state plan re-

quirements.

DH/yr