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

SPONSOR HLC

ORIGINAL DATE

LAST UPDATED

3/16/07

HB 51/HLCS

SHORT TITLE Film Industry Child Labor Provisions

SB

ANALYST Lucero

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to: SB 476 “Film Industry Child Labor Requirements" SB 225 “Film Industry Child

Labor Provisions"

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the District Attorney

New Mexico Department of Labor

Office of Workforce Training and development

SUMMARY

Synopsis of Bill

This bill amends in part and repeals in part the current law 50-6-1 through 50-6-16 NMSA

regarding employment of children under the age of fourteen(14) . It also creates a new section

dealing specifically with children working in the performing arts. The bill incorporates all

changes under the title the “Child Labor Act". The bill sets out restrictions and exceptions as to

the types of employment available and the working hours for children under the age of sixteen

(16). It also now provides for a civil penalty to be accessed and mandatory referral of all cases to

the District Attorney. It also changes the penalty from a misdemeanor to a petty misdemeanor for

the first offense, a misdemeanor for the second offense and a fourth degree felony for the third

and subsequent offense. It also provides a penalty of a fourth degree felony for a “succeeding

conviction for the like offense."

FISCAL IMPLICATIONS

The increased penalties under the Act, the new requirement that the Director report all violations

House Bill 51/HLCS – Page

2

to the local District Attorney and the new requirement making it mandatory for the District

Attorney to prosecute violations of the Act will increase the case loads of District Attorneys,

Public Defenders, the Courts and Adult Probation Offices as well as increase incarceration costs

for the Department of Corrections. An inquiry to all fourteen (14) District Attorneys as to

whether they had ever had a case referred to them under the current law returned no positive

replies. Depending on the volume of cases referred potentially this could necessitate additional

attorneys and staff for all offices mentioned and the associated costs. The exact fiscal impact to

the judicial and detention systems is indeterminable due to the uncertainty as to the potential

number of cases that may be referred.

The bill does not appropriate any money to the Corrections Department, but it does increase

criminal penalties. A third or subsequent conviction for a violation of the Act by a parent,

guardian, custodian or an employer is a fourth degree felony. While the bill will probably not

result in a large number of convictions, it will cause a minimal increase to the prison population

and to probation/parole caseloads due to some new felony convictions.

The contract/private prison annual cost of incarcerating an inmate is $23,867 per year for males.

The cost per client to house a female inmate at a privately operated facility is $21,651 per year.

Because state owned prisons are essentially at capacity, any net increase in inmate population

will be housed at a contract/private facility.

The cost per client in Probation and Parole for a standard supervision program is $1,467 per year.

The cost per client in Intensive Supervision programs is $3,383 per year. The cost per client in

department-operated Community Corrections programs is $3,503 per year. The cost per client in

privately-operated Community Corrections programs is $7,917 per year. The cost per client per

year for male and female residential Community Corrections programs is $39,401.

SIGNIFICANT ISSUES

New Mexico Public Regulation Commission (PRC) states:

New Section 2, Subsection (A) would allow parents to employ children under sixteen in

occupations “other than [those] found to be particularly hazardous or detrimental to the

health of children under the age of sixteen." I suggest that the Legislature examine

carefully what occupations have been found to fall within the quoted exception. See also

§ 50-6-4(C), the proposed amendment to which would limit the requirement for a

consultation on non-listed hazardous occupations to situations involving children between

fourteen and sixteen years old. (Those wishing to employ younger children would

arguably be exempted.)

New Section 2, Subsection (A)(2) and (B), read in conjunction with § 50-6-2, would

bypass the need for a work permit for children employed as actors or performers, as long

as they are under sixteen. This also presents a possible conflict with § 50-6-9.

New Section 3, Subsection (C) would permit a child’s “workday" to begin at 5:00 a.m.

and end at 10:00 p.m. on school nights (or end at midnight on non-school nights). When

read in conjunction with Subsection (D), it is not clear whether this provision would allow

the employer to keep a child-performer on the set for up to 19 hours (17 hours on a school

night), as long as the child is not “permitted to labor" for longer than the durations

specified in Subsection (D).

House Bill 51/HLCS – Page

3

New Section 3, Subsection (D) would establish limitations on working hours, “including

school time." Subsection (E) would require the employer to provide a teacher. However,

it is not clear that any actual instruction time would be required, or if so, how long that

instruction time would be. See also, § 50-6-3(B) in this regard, and compare § 50-6-3(B)

(4).

Subsection (D) (1) relates to children “under the age of six" and would allow them to be

“working" for up to six hours in one day. Subsection D (2) relates to children between six

and nine years of age and would allow them to be “working" up to eight hours in one day.

The bill would allow even very small children under six years old to be engaged in

“labor," with hours that seem excessively long. I suggest that, at a minimum, the

Legislature seek information on whether this is good for children.

The proposed amendments to § 50-6-12 would reduce certain criminal penalties for

violations. I suggest that the Legislature examine this language carefully. In addition, §

50-6-12(A) could conflict with § 50-6-12(B) in that (A) would reduce a [first] violation

from a misdemeanor to a “petty misdemeanor," while (B) would impose a mandatory 30-

day jail sentence. Sentences for misdemeanors are established at NMSA 1978, § 31-19-

1(A) as a definite jail term of up to one year or a fine of up to $1,000. In contrast,

sentences for “petty misdemeanors" are established at NMSA 1978, § 31-19-1(B) as a

definite jail term of up to six months or a fine of up to $500. The bill would make a

second violation a misdemeanor, and a third violation would be a fourth degree felony.

See also New Section 4 (“Civil Penalty").

§ 50-6-14 would remove altogether any requirement that the state child labor inspector be

qualified by special training and experience. Instead, that official would simply be

“appointed by and subject to" the director of the labor and industrial division of the labor

department.

This bill modifies language in the Child Labor Act to conform to provisions in the Screen Actors

Guild guidelines. The bill establishes working conditions and hour limitations for minors

performing in film, television and other theatrical endeavors. It adds civil penalties for violations

and adds an administrative appeal process. It strengthens the penalty for subsequent violations.

Although the bill toughens up the consequences of violating child labor laws, it expands child

labor to any young age in the category of children who work for their parents, work as

performers in various electronic media or children who deliver newspapers to customers.

Section 22-12-6(A) of the Compulsory School Attendance Law currently provides that, “Any

student . . . attaining the age of fourteen may be excused from full-time school attendance by

issuance of a certificate of employment. . ." It is not clear if a school district can and should

continue to issue this certificate under the circumstances outlined in this bill.

Because some parents who home school children challenge any restrictions they perceive are not

lawfully imposed upon them, it is possible that some of these parents may not feel bound by

Section 8 of the bill that prohibits employment of children in the context of a “calendar school

year" or “during a school day." As currently written, these restrictive provisions would arguably

not apply to such home-schooled children who might be inclined to work outside of the proposed

restrictions.

House Bill 51/HLCS – Page

4

The bill contains both a civil penalty section for which monetary penalties can be assessed by the

state Labor Department and a penalty section for when violators can be criminalized including

(implicitly) fines and imprisonment. Because the civil penalty uses terms with criminal

consequences (“separate offense," criminal prosecution," “refer the case to the district attorney"),

it is not clear if a violator can both be fined civilly and prosecuted or the intent is that it should

be one or the other. A violator faced with both consequences would likely find creative ways to

challenge a duplicate hearing or penalty whether under a theory of res judicata (already

adjudicated) or double jeopardy.

ADMINISTRATIVE IMPLICATIONS

Currently three of the four agencies, District Attorneys, Public Defenders and the Department of

Corrections that potentially could be impacted by this bill are seeking additional funding for

salaries in an effort to reduce employee turnover due to large caseloads and low pay compared to

other state agencies. If this bill leads to a high number of cases being prosecuted it could

exasperate the problem and impact criminal prosecutions and monitoring and housing convicted

defendants in other areas of the law.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

SB 476 “Film Industry Child Labor Requirements", SB 225 “Film Industry Child Labor

Provisions"

TECHNICAL ISSUES

The Administrative Office of the District Attorney provided the following:

This bill provides for both a civil fine and criminal prosecution for violation of the

Act. There may be potential problems in imposing both a civil fine and prosecuting a

violator criminally based on double jeopardy if the civil fine is deemed to be a

“punishment" for the same conduct. Double jeopardy provides that a defendant shall

not be punished more than once for the same offense. New Mexico courts have

previously found that civil forfeitures are a “punishment" and as such bar a later

criminal prosecution based on the same violation of the law. See State v. Nunez

, 129

N.M. 63, 2 P.3d 264(1999). The exception spelled out in Nunez

is if the actions are

filed simultaneously in a single bifurcated proceeding in district court. However New

Mexico has also interpreted civil forfeiture to be “remedial" rather than a punishment

when it was filed after an individual’s driver’s license had been revoked for driving

under the influence. It was found to not violate double jeopardy in City of

Albuquerque v. One (1) White Chevy

, 132 N.M. 187, 46 P.3d 94(2002). If the civil

penalty were deemed an administrative penalty this would also allow a criminal

prosecution subsequent to the penalty being imposed. For example revoking an

individual’s driver’s license for driving while under the influence of alcohol is

deemed an administrative penalty and therefore is not a bar to a later criminal

prosecution for the same conduct. It is difficult to imagine an argument that the civil

fine imposed under this Act is not a “punishment" or is an administrative penalty to

avoid a criminal prosecution being barred by double jeopardy.

The bill also amends the penalties under 50-6-12 NMSA by providing for graduated

House Bill 51/HLCS – Page

5

penalties for subsequent violations. In paragraph A. it is a petty misdemeanor for the

first conviction, a misdemeanor for a second conviction, and a fourth degree felony

for a third and subsequent conviction. Paragraph B. appears to be in conflict with

paragraph A. as it provides “Upon conviction, the employer, parent, guardian or

custodian may be sentenced to county jail for a period of not less than thirty days and

for any succeeding conviction for the like offense, the employer, parent, guardian or

custodian is guilty of a fourth degree felony.

" “Conviction for the like offense" is not

defined in the bill; it is unclear as to what is meant by this language. A plain meaning

of the wording would be for a person to be subsequently convicted under the Act.

However as paragraph A. uses this language and provides for a different increase in

penalty, it does not become a fourth degree felony until the third conviction, the

author must have intended a different meaning for the phrase “conviction for the like

offense". Whether it is intended to cover employment of a child in the same type of

job, cover subsequent convictions involving the same child, or a violation of the Act

under the same section and paragraph is unclear. Such lack of clarity as to the intent

of paragraph B. leaves the Act open for attack in court as being Unconstitutionally

Vague. There is also no provision for severability to save the rest of the Act should

one portion be found to be Unconstitutional. The language in paragraphs A. and B.

should be amended to conform with each other, the language in Paragraph B as to

penalties should be deleted, or the term “conviction for the like offense" should be

defined to correct this problem. Also a severability clause should be added so that the

entire Act is not nullified if one portion is found to be Unconstitutional.

Additionally the language in Paragraph B. also reads “The director of the labor and

industrial division of the labor department shall report a violation of the Child Labor

Act to the local district attorney, who shall prosecute the alleged violator." The

mandatory language “shall prosecute" would require the filing of and prosecution of

all cases referred by the director. Such mandatory language infringes upon the

prosecutorial discretion of each district attorney to prosecute or not prosecute a case

based on evidence or the lack thereof. Prosecutorial discretion has been the most

highly protected power possessed by prosecutors in the courts. As district attorneys

are part of the judiciary such a directive infringing upon this power is possibly a

violation of the separation of powers. Prosecutors are under an ethical obligation to

seek justice and to not prosecute a case that they do not reasonably believe they can

obtain a conviction on. The standard of proof that must be met in a criminal

prosecution is proof beyond a reasonable doubt. As the labor department is not an

agency that normally engages in criminal investigations it is questionable if a case

referred by the director to the local district attorney would be in a form that would be

prosecutable. No other statute comes to mind which contains such mandatory

language “shall prosecute the alleged violator". This language needs to be amended

or stricken.

PED states that on page 4, Line 1 – 3, “a teacher with credentials appropriate to the level of

education" is used to describe child performers who must receive education by their employer.

These terms do not comport with the current licensure structure of the PED. While the

educational needs of younger children who are in traditional elementary school grades might be

met by one teacher, the educational needs of older children who are in middle or high school

might require more than one highly qualified teacher who teaches core academic subjects. There

are many restrictions and requirements of who can teach what subject depending upon the grade

House Bill 51/HLCS – Page

6

of the child. For example, a child receiving special education services must be provided services

from qualified related service providers if called for in that child’s Individualized Educational

Plan (IEP).

Perhaps the provision could be changed to: “a teacher or teachers with credentials appropriate to

the level of education" to accommodate these licensure requirements.

Page 5, Lines 12 – 16, is unclear and confusing. It is unclear why the appeals board has 10 days

to set a hearing within 30 days (thereafter.). It might be clearer to simply give it 40 days to set

the hearing.

Under 50-6-12 B, the language states, “…the local district attorney shall prosecute the alleged

violator." The language should be, ‘…the local district attorney may prosecute the alleged

violator." The local district attorney in each jurisdiction has the discretion to prosecute an

offender or not based on the facts and evidence presented to him/her.

The PRC states: In § 50-6-3(B), PRC suggests placing the phrase “unless otherwise provided for

in the Child Labor Act" at the beginning of the sentence.

OTHER SUBSTANTIVE ISSUES

The proposal of the age limit(s) and amendments to work permit application/receipt may have an

impact to the federal Workforce Investment Act youth delivery system as well as other state

funded youth programs which provide a work experience component in their program designs.

In most cases this would increase the number of youth that could participate in work experience.

Administrative Office of the District Courts states: Based on recent local news reports, the film

industry has defrauded New Mexico of hundreds of thousands of dollars. If anything, controls

need to be tightened on that industry. If a child is to be employed by any industry, it is preferable

that a work permit be obtained for any child for record keeping purposes, as well as for

safeguarding of the children’s interests. No industry should receive any special treatment in light

of securing children’s rights in the “workplace".

ALTERNATIVES

As mentioned above.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Not enacting this bill will mean less protection for children working in the film industry. A

minimal impact may occur to the number of youth that may not be able to be offered a work

experience opportunity due to the age limitations and permit limitations outlined in the existing

Law.

DL/mt