Timing can make the difference between good law, bad law or no law at all

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by Naomi R. Angel

What would you do if a law were passed affecting your business and you never knew about it? What if a law was passed that set new product standards, without taking into account standards already developed by recognized experts? Can you be sued today because a product you sold years ago now violates a new law that wasn't even in effect at the time of the sale? It could happen, and almost did.

A recent example shows how.

Late in the afternoon of May 3, 1999, DASMA learned that there was a proposed bill in the Nevada State Assembly aimed at automatic gates and gate operators. The legislation was introduced by Sen. William O'Donnell, whose wife had once been injured in a reach-through gate accident. Senate Bill (SB) 302 had already passed the Nevada Senate by a 17-4 margin and was scheduled to be heard in an Assembly committee on May 6, 1999.

This bill would have required all new and pre-existing gate systems equipped with operators to be fitted or retrofitted with audible warning devices that would activate upon operation, and would have become effective on Jan. 1, 2000.

Not only did the proposed bill make no reference to UL 325, the gate operator and systems safety standard that Underwriters Laboratories and the industry had worked so hard to develop over the past four years, it also called for retroactive application to all existing automatic operators.

DASMA's Operator & Electronics Division's Executive and Technical Committees quickly prepared a response plan on May 4, 1999. Joe Hetzel, technical director, and Naomi Angel, legal counsel, flew to Carson City on May 5 and along with a representative from the Nevada Manufacturers Association (NMA) met with legislators and other interested parties on the day prior to, and in the hours leading up to, the May 6th hearing. They distributed pertinent sections of the UL 325 standard, as well as an article dealing with UL 325 gate systems safety standards recently published in the association's magazine, as well as DASMA's automatic gate system safety brochure. The DASMA representatives made a special point to underscore UL 325's balance between safety and security. To their surprise, they discovered that none of the legislators were previously acquainted with UL 325.

In comparing the Senate bill to UL 325, it was immediately clear that UL 325 was more complete, in that UL 325 includes requirements for primary and secondary entrapment protection, vehicular classes, types of gates, entrapment protection device options, parameters associated with audible alarms, warning signs and gate construction and installation.

DASMA's representatives testified at the committee hearing on May 6. They registered DASMA's opposition to the Senate's version of SB 302 and suggested, alternatively, that gate systems installed as of March 1, 2000 should comply with UL 325 as published on Sept. 18, 1998. At the conclusion of the hearing, the Assembly committee chair referred the bill to a subcommittee for further study.

DASMA, with the cooperative efforts of the National Ornamental & Miscellaneous Metals Association (NOMMA), the American Fence Association (AFA), and NMA, redrafted and submitted to the subcommittee an amended version of SB 302 that centered around UL 325 as the accepted standard.

The subcommittee approved the amended version of the bill and applied it to new installations only. It then went back through the legislative process--to the Senate (where it was rejected), to a first joint Senate/Assembly conference committee (where the Assembly representatives refused to withdraw the amendments), and to a second and final joint conference committee. The second joint conference committee issued a report recommending that there be concurrence with the Assembly's amended version of SB 302, which reads:

"A gate that operates by electrical power, provides access for vehicular traffic, and is installed on or after March 1, 2000, must comply with the requirements of Underwriters Laboratories Inc. Standard for Safety 325, as published on Sept. 18, 1998, and effective on March 1, 2000. The law becomes effective on March 1, 2000."

And so on May 31, in the last hours of Nevada's 70th legislative session, Sen. O'Donnell delivered an impassioned speech and acknowledged the merits of UL 325. The legislature adopted the report of the second joint conference committee, and the 1999 legislative session concluded.

This saga explains by example how trade associations can influence the legislative process. One of the most important functions of any association is to be proactive and represent their industries' interests to government bodies. But in order to assist you, your trade associations need your help.

What can be learned from this?

- First, it is vitally important for you to keep abreast of legislative developments in your state and local governments. Although your associations attempt to monitor pending legislation, they cannot always discover all the new bills that could impact the industry.

Keep your eyes and ears open. Contact your legislators and let them know you want to be notified when there are issues being considered that could affect your business.

And if you learn of a new development, contact your trade association as soon as possible.

- Second, it is very difficult for an individual business to affect the legislative process. In the above situation, a gate dealer learned of the proposed bill and tried to get involved in the process, but had little influence until the trade associations were alerted and got involved. The collective expertise and experience of an industry group can help educate legislators and assist them in putting things into perspective.

- Third, the legislative process can move very quickly. Good, well-intentioned legislators may not always have all the facts, especially when under time pressure. The earlier in the process that knowledgeable people can get involved, the better. It's a lot easier to educate beforehand than it is at the end of a heated debate.

A bill like the one in Nevada could be introduced in your state. Or some other bill could be introduced which affects your business. By being alert to new developments and advising your trade association representatives quickly, you can help make sure your industry's voice is heard.

Naomi R. Angel serves as legal counsel to DASMA, and is experienced in commercial litigation and commercial dispute resolution issues. She practices with the Chicago law firm of McBride Baker & Coles and can be contacted at 312-715-5788. She notes that this article is not intended to be and should not be used as a substitute for specific legal advice. If legal advice is required, speak to an attorney.

This article is reprinted from the September 1999 issue of World Fence News