MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      April 20, 1993

 

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:03 a.m, Tuesday, April, 20,, 1993, in Room 332 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.

 

 

COMMITTEE MEMBERS PRESENT:

 

      Mr. Robert M. Sader, Chairman

      Mr. Gene T. Porter, Vice Chairman

      Mr. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. John C. Carpenter

      Mr. Tom Collins, Jr.

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. Ken L. Haller

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Scott Scherer

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

COMMITTEE MEMBERS ABSENT:

 

      None

 

GUEST LEGISLATORS PRESENT:

 

     

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst

 

OTHERS PRESENT:

 

      Mr. Robert Faiss, Lionel Sawyer & Collins for Nevada Resort

        Association

      Ms. Patricia Becker, Senior Vice President and General

        Counsel for Harrah's

      Mr. Bill Prezant, Prezant, Mollath & Costello for

        International Game Technology     

 

OTHERS PRESENT (Con'd):

 

      Ms. Lidia Osmetti, Director of the Victim Witness Center      

        of the Washoe County District Attorney's Office

      Ms. Barbara Schell, Director of the Victim Witness Center

        of the Clark County District Attorney's Office

      Mr. William Gardner, Chief Criminal Deputy of the Reno City

        Attorney's Office

      Mr. Noel Waters, Carson City District Attorney's

        Association

      Ms. Vicki Riley, Nevada Trial Lawyers Association

 

Following roll call, Chairman Sader began the hearing on AB 493.

 

ASSEMBLY BILL 493 -

 

      Provides for reimbursement of county by offender for services to victim of sexual assault.

 

Ms. Barbara Schell, Director of Victim Witness Center for Clark County District Attorney's Office, the requesting agency, testified on AB 493.  Ms. Schell said in Clark County last year the Victim Witness Center dispersed funds in the amount of $280,000 to pay for psychological services provided to victims after they were sexually assaulted or sexually abused.  She said based upon her agency's current demand it would probably spend $350,000 this year just on psychological services for victims.  She said this did not include the initial medical treatment which was provided at the hospital which could entail a wide range of services from the basic rape kit through extensive medical testing and services.  She felt it was something which defendants needed to be responsible for; it was important they reimburse, the community for the funds it had put out for their criminal acts.  She said this was not applicable in every case because some defendants would not have the funds with which to reimburse but where it was appropriate it should be done.  She said this would make them more accountable for their crime and it would help the citizens in the community by providing  additional funds for crime victims.

 

Ms. Lidia Osmetti, Director of the Victim Witness Center of the District Attorney's Office in Washoe County, testified in favor of AB 493.  Ms. Osmetti said in 1990-1991 her office spent $155,773 on counseling and initial medical expenses which were incurred for sexual assault victims.  She indicated last year her office figures were $236,760 and this coming year her office's costs would be more.  She explained her office wanted the defendant to pay back whatever he possibly could to reimburse the sexual assault victims for these types of costs. She added her office wanted the responsibility placed back on the defendant for monetary purposes.

 

Mr. Anderson asked regarding the language on page 2, line 6 where it talked about "medical care or psychological treatment of the victim" would this imply the reimbursement of one or the other treatment or could a victim be reimbursed for both.  Mr. Sader answered it could be either of the treatments or both.

 

Mr. Sader was concerned with the wording in the AB 493 and he requested Ms. Miller, the Research Analyst, to assemble all of the provisions in NRS which currently required offenders incarcerated to pay back people or fulfill financial commitments.  He also wanted clarification at the end of the bill regarding liens.

 

Mr. Carpenter asked Ms. Schell for how many crimes did the County have to cover the cost.  Ms. Schell replied this bill only addressed sexual assault and sexual abuse.  She said currently under NRS 217.350 the County was responsible for an initial medical treatment of sexual assault and sexual abuse victims, and the County was also responsible for providing medical and/or psychological services through the crime compensation portion up to $1,000 per victim.

 

Mr. Sader asked Ms. Schell where the money for this program came from.  Ms. Schell replied currently the money was allocated out of Clark County's general fund and designated under the heading of social services which provided the initial medical treatment, and then Ms. Schell's office processed the crime compensation for this crime category.

 

Mr. Sader said there was a state victim's fund which was not reimbursed.  Mr. Sader asked, philosophically, why reimburse Ms. Schell's fund and not reimburse this state victim's fund; in fact, why not reimburse all funds.  He said what happened when a defendant was "loaded up" with liens when he or she came out of the prison system and was trying to start a new life.  Ms. Schell replied she thought, where appropriate, defendants had an obligation to pay back the community monetarily or in other ways what they had taken from the community.  She stated although offenders often did not have resources available to them, there were enough cases where resources were available and those resources could be tapped.  At least this would make the individual responsible and where it was appropriate she believed an individual had an obligation to repay to the community. It makes for a healthier community.  She added this responsibility could help their rehabilitation but she agreed with Mr. Sader.  the line had to be drawn someplace. 

 

Mr. Petrak asked Ms. Schell if her office told a person in advance of treatment he would have an obligation to the state or county for $10,000.  Ms. Schell said her office only worked with victims of crime, not offenders.  She said the only obligation currently was when a victim accepted the $1,000 grant, filed civil litigation and received a judgment, he was required to reimburse the fund up to the $1,000, but otherwise on the county level there was no reimbursement to the fund.

 

Mr. Petrak asked Ms. Schell how her office determined if an individual was a victim.  Ms. Schell said state law set forth her office had to obtain an affidavit from the individual, pull a crime report and any court papers, and based upon the information her office made a determination whether or not an individual would be awarded benefits.  She said if an individual were awarded benefits he had a time frame he had to meet and her office had to have the elements of the crime there.

 

Mr. Sader postponed the hearing of AB 493 until the research staff had completed its findings.

 

ASSEMBLY BILL 490 -

 

      Prohibits driving if subsequent test shows presence of alcohol.

 

Mr. William Gardner, Chief Criminal Deputy of the Reno City Attorney's Office, testified in favor of AB 490.  The Attorney General's Office was the requesting agency.  Mr. Gardner said AB 490 addressed confusion with the presumptions in the existing law, and he read a letter from the Attorney General's Office which summarized the purpose and intent of the bill (Exhibit C).  Mr. Gardner noted this legislation was modeled after a Minnesota law which had withstood constitutional challenges in the Minnesota appellate courts.  Mr. Gardner said he had once attended a drinking class where he saw a women consume alcohol to the point where she was a .04 and passed out.  He said while most people were not affected this way by alcohol, currently under Nevada's laws even a person who passed out and could not walk could be presumed not to be intoxicated.

 

Mr. Sader asked Mr. Gardner to explain the difference between the existing .10 law and the proposed per se changes.  He asked what was the issue and why was it important.  Mr. Gardner explained under existing law because there was not a per se law there was a hybrid law where there was a rebuttal presumption created at .10.  He said a defendant who had taken a blood alcohol test and had the results of .10 could argue he consumed a considerable amount of alcohol right before driving, but since there was a time lapse between his driving and his testing, then he must have been lower than .10 at the time of his driving.  Mr. Gardner said this type of rebuttal was very difficult to verify and corroborate, and the defendant's testimony had to be taken almost at face value.

 

Mr. Collins asked Mr. Sader for clarification, if AB 57, which passed earlier in the session, allowed law enforcement to take three tests why did this bill ask for only one test to be conducted.  Mr. Sader explained this bill did not deal with how many tests were performed but instead what the results of a test were.  He explained the bill dealt with the timing of a test after driving under the influence of alcohol and what it meant legally.

 

Mr. Gardner pointed out if AB 490 was processed, NRS 484.381 should not be repealed entirely.  He said subsection 4 (c) should remain in force because it left the level at .10 and it defined weight of alcohol in the defendant's blood.

 

Mr. Sader asked Mr. Gardner, regarding the recent Supreme Court decision and the issue of presumptions, what effect would this bill have.  Mr. Gardner said the Patricia McLean vs. John Moran; Brian McKay case did not address any of the presumptions because they were not raised.  He said it did away with the presumption in NRS 484.381 paragraph 1, which the McLean vs. Moran; McKay court talked about, which said at the time of driving the amount of alcohol in the blood of the defendant was presumed to be no less than the amount present at the time of the alleged violation.  He said this proposed amendment did away with this presumption as well.

 

Ms. Smith stated a bill had passed which required three blood tests to determine the alcohol level and asked how AB 490 would affect this bill.  Mr. Gardner explained he was recently informed about AB 57 and had not had an opportunity to review it, but he did not believe AB 490 had anything to do with AB 57.  He said his guess was AB 57 dealt with felony DUI's, while AB 490 simply did away with the presumptions.  He did not think it would have any effect at all on AB 57.

 

There being no further testimony, Mr. Sader closed the hearing on AB 490.

 

 

      ASSEMBLYMAN SMITH MOVED TO AMEND AND DO PASS AB 490.

 

Mr. Sader pointed out the amendment was to retain and not repeal NRS 484.381 section 4(c).

 

      ASSEMBLYMAN TOOMIN SECONDED THE MOTION.

 

Mr. Toomin asked Mr. Sader would this bill cause a fiscal impact.  Mr. Sader said in areas where procedures were changed there might or might not be any fiscal impact.  Mr. Sader said the issue was raised but no one could answer it.

 

Mr. Petrak shared Mr. Toomin's concerns regarding any potential fiscal impact.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

ASSEMBLY BILL 434 -

 

      Revises provisions governing judgments of acquittal.

 

Ms. Vicki Riley, Nevada Trial Lawyers Association, the requesting agency for AB 434, explained her prime witnesses from Nevada Attorneys for Criminal Justice were unavailable to testify.

 

Mr. Sader asked if anyone else in the audience came to testify on AB 434.  Mr. Noel Waters, Carson City District Attorney's Association, was present, and he preferred to wait and give his testimony when he could hear the testimony from the requesting agency.

 

Mr. Sader said the hearing on AB 434 would be continued and heard on a later date.

 

ASSEMBLY BILL 470 -

 

      Substitutes continuing reporting for prior approval of foreign gaming.

 

Mr. Robert Faiss, Lionel Sawyer & Collins, the Counsel for the Nevada Resort Association, the requesting agency of AB 470, provided written testimony which explained the purpose of the bill (Exhibit D).  He explained the intent of AB 470 was to streamline and strengthen the foreign gaming statutes.

 

Mr. Faiss said after his association reviewed the original print of AB 470 and with the cooperation of Mr. William Bible, the Chairman of the Gaming Control Board, some minor amendments were developed (Exhibit E).

 

Mr. Faiss gave the history of the foreign gaming statutes from the time they were enacted in 1977.  He explained the foreign gaming statutes were initially adopted to assure the participation by gaming licensees outside of Nevada would not unfavorably impact on the reputation and stability of Nevada's gaming industry.  As a result, Nevada Licensees were required to obtain advanced Commission approval for any foreign gaming involvement, and the Legislature was not inclined to have the approval granted unless the Commission found "the existence of a comprehensive, effective government regulatory system in the foreign jurisdiction."  In 1985, the rigid control of foreign gaming statutes was relaxed and again in 1987, the Legislature accepted the premise Nevada standards should not be imposed on a foreign government and removed them from the approval process.

In 1991, the Nevada Gaming Commission took notice that Nevada licensees were engaged in competition for the award of foreign gaming projects and licenses and, in some cases, the requirement of prior Nevada approval was an uncertainty and this put Nevada licensees at a disadvantage.  Therefore, the Commission adopted a regulation which authorized what was termed a "continuous approval" to participate in foreign gaming.  Mr. Faiss said AB 470 built on the experience gained since the adoption of the "continuous approval" regulation and presented a realistic approach to foreign gaming involvement by Nevada licensees.  It also incorporated an objective adopted by the Legislative Commission's Subcommittee to Study Gaming, which was a Nevada licensee would be held accountable for his conduct in the foreign jurisdiction.  Mr. Faiss explained the purpose of the proposed amendments contained in (Exhibit E).

 

Ms. Patricia Becker, Senior Vice President and General Counsel for Harrah's, testified in support of AB 470.  Ms. Becker said her organization fully supported AB 470 and she had nothing further to add to Mr. Faiss's testimony.

 

Mr. Haller asked Mr. Faiss regarding the language on page 3, Section 4, subsection 1, lines 36 through 38 where it included the word "tribal."  Mr. Haller had two concerns: first, he was concerned because if tribal interests were included in this bill and a tribe passed an unworkable regulation, how would it be handled; and secondly, what did the term  on line 37 "any equivalent thereof" mean.  Mr. Faiss explained, "The term "any equivalent thereof" relates to any formal rule or regulation adopted by the government.  As to the tribe there are going to be licensees, I presume, participating in foreign gaming pursuant to tribal law.  This merely says that they have to act in concert with that law.  If that law would be in conflict with some federal law, then that's a question that gaming authorities and licensees are going to have to deal with."

 

Mr. Porter asked Mr. Faiss where the enforcement mechanism was in the bill.  He pointed out the language on page 3, line 32 through 34 which said, " A licensee who continues participation in foreign gaming operations after an order of the commission terminating approval engages in an unsuitable method of operation and may be disciplined...." was repealed by this bill.  Mr. Porter noted the bill also repealed the language on page 4, NRS 463.690, subsection 1, where it said "Any approval granted under this section is a privilege which may be revoked, suspended, conditioned, limited or restricted by the commission at anytime."  Mr. Porter explained from his perspective the policy decision made by this legislation would no longer require prior approval and would not condition a Nevada licensee anymore upon foreign gaming or his conduct in foreign gaming, but instead would merely require reporting it.  Mr. Faiss explained currently there was not a requirement under this statute for a licensee to act lawfully in another jurisdiction, but for the first time the Legislature recommended through this bill that the licensee would be held accountable by the same enforcement mechanisms used to enforce the laws in the state.

 

Mr. Porter asked Mr. Faiss where it stated violating any of the items in lines 36 through 47 constituted an unsuitable method of operation subject to licensee discipline in Nevada.  Mr. Faiss said the bill did not state this, but the bill had the same weight as any provision in the Gaming Control Act subject to disciplinary action.  Mr. Porter said where in the statutory scheme a licensee's violation of these items became an unsuitable method of operation where Mr. Bible could pull a licensee in and start to question him about it and, in fact, discipline him.

 

Mr. Faiss asked Mr. Bible, Chairman of State Gaming Control Board, to address Mr. Porter's concerns.  Mr. Bible said the provisions in NRS 463.312 provided for the disciplinary action against licensees for violation of any of the provisions of NRS 463.  Mr. Bible interpreted the codification which was before the committee fell within those general provisions, and the Board could prosecute an action and the Commission could consider that prosecution if any of those particular provisions were violated by a licensee.  Mr. Porter asked Mr. Bible if a violation of lines 36 through 47 were grounds for disciplinary action by the Board.  Mr. Bible said this was his interpretation and he said it would be the same as any other provision of NRS 463.

 

Mr. Porter asked Mr. Bible how many applications for foreign gaming had he denied. Mr. Bible said in terms of denial there was one request which received a recommendation for approval from the Board, but the Commission had no appetite for processing the application and referred it back which essentially, instead of denying the application, backed it out of the system.  Mr. Porter asked Mr. Bible how many applications had been denied since 1977.  Mr. Bible said to his knowledge this was the only application denied since 1977.

 

Mr. Porter asked Mr. Bible to address the language on page 3, lines 25 through 27 and asked if Nevada licensees were required to notify the Gaming Control Board of a simple arrest of an employee.  Mr. Bible said licensees at this point who had received foreign gaming approval were required to report arrests to the Gaming Control Board of their employees who were involved in cheating, theft or any crimes related to gaming.  Mr. Porter again asked Mr. Bible under current Nevada law if someone was an employee and he was arrested, was the licensee required to notify the Gaming Control Board of the arrest.  Mr. Bible said the licensee was not specifically required to notify the Gaming Control Board of the arrest, but the Board became aware of the arrest when the Board looked at the licensee in terms of his work permit.  Mr. Bible further clarified the Gaming Control Board effected a number of those arrests; therefore, it was aware of them because it was the arresting agency.

 

Mr. Carpenter asked Mr. Bible, with the relaxing of Nevada's gaming rules and regulations, would this hasten the day when  Nevada would no longer to be the premier gambling state.  Mr. Bible discussed written testimony which enumerated the Nevada licensees who engaged in gaming activity outside the state of Nevada and were not required to have prior approval (Exhibit F).  He said the Gaming Commission ultimately adopted regulation 4.705 which provided for a system of continuous approval which allowed the list of licensees he mentioned from Exhibit F to participate in gaming opportunities outside of the state without having to come before the Commission on a prior approval basis.  He said this particular legislation was appropriate because it created a level playing field and in his analysis currently there was a two tiered system where some licensees could participate outside of the state of Nevada without the burden of coming before the Board and the Commission in seeking approvals while others had to come before the Board and the Commission to seek such approvals.

 

Mr. Bible said AB 470 was important for several reasons.  First, it put all licensees on a equal basis; second, it strengthened the reporting system by codifying it; and third, it strengthened the potential disciplinary system in terms of codifying requirements so Nevada licensees could conduct themselves outside of the state of Nevada in the same manner they would anticipate conducting their operations within the state of Nevada.  Mr. Bible said in terms of the economic reality of the situation when this particular section of the code was adopted in 1977, it was adopted in response to New Jersey's legalization of gaming.  He said since that time there had been legalization in a number of the states in the Union.  He said the economic reality was gaming was spreading.  He said clearly it should be an opportunity Nevada licensees could participate in.

 

Mr. Carpenter asked Mr. Bible if Nevada would get into a bidding war with other states.  Mr. Bible explained, in terms of tax base, Nevada was at the low end of the spectrum and in other jurisdictions where gaming was legalized the tax burden was equal to or greater than the tax burden of Nevada.

 

Mr. Faiss also addressed Mr. Carpenter's concerns.  He said one of Nevada's attractions was it had a system which was stable.  He said in other jurisdictions it was unknown as to what could happen next year.

 

Mr. Regan asked Mr. Bible if he still had the capability under NRS 463.312 to revoke, suspend, condition, restrict if NRS 463.690 was repealed.  Mr. Bible said he believed the Gaming Control Board still had the ability to bring a disciplinary action against a licensee for violating the provisions under the code. 

Ms. Smith asked Mr. Bible if two competing Nevada licensees had to obtain prior approval before they could provide their bid proposals in a foreign jurisdiction, would the prior approval process influence a foreign bid award.  Mr. Bible said the Gaming Control Board never faced this issue before but he suspected it would have an effect.  He said the Gaming Control Board never faced a situation in Nevada where two Nevada licensees competed for the same project.  He said the Gaming Control Board's review was focused more on the conduct of the licensee while he was in the state of the Nevada, his regulatory history and the stability of the corporation, and it was less or no concern as to the proposal itself.

 

Mr. Haller asked Mr. Bible if he recommended an amendment on page 3, Section 3, subsection 1, to deal with arrests, convictions etc.  so not all of the language should be deleted.

 

Mr. Bible stated, "Mr. Faiss indicated that he was requesting and I do support an amendment to the preamble of that particular provision where it would indicate unless otherwise ordered by the Board or the Commission which would allow us an opportunity to tailor the reporting requirements for each individual licensee in terms of where they are operating."

 

Mr. Porter asked Mr. Bible why as a regulator did he oppose the change in the regulation by the Commission.  Mr. Bible said he opposed it for two reasons: first, he felt very strongly the Legislature had provided a system for prior reporting.  There were provisions within the Foreign Gaming Act which allowed the Commission to waive those provisions either selectively or generally.  He felt the decision in terms of whether applications were processed on a prior basis or on a continuous basis should be made by the Legislature, and this body was the appropriate body to make those particular decisions.  Second, he felt the Commission should move slowly in the area of Nevada licensees participation in foreign gaming so the Commission could evaluate jurisdictions on a jurisdiction by jurisdiction basis.  Mr. Porter asked Mr. Bible, given the benefit of hindsight, had the regulation impacted his ability to perform his duties as a regulator.  Mr. Bible answered in terms of other jurisdiction, it had not.

 

Mr. Raymond Avansino, President & Chief Operating Officer of Hilton Hotel Corporation, testified in support of AB 470.  Mr. Avansino supplied written testimony for the committee    (Exhibit G).  Mr. Avansino explained since the Hilton was a publicly traded company, there was an obligation to its shareholders, and because gaming today accounted for some 70 percent of the Hilton's profits, there was a fiduciary responsibility to explore and pursue new opportunities be it in Nevada or elsewhere.  Mr. Avansino said while the Hilton made a conscious decision not only to maintain but strengthen its worldwide leadership role in the gaming industry, this in no way diminished its current and future commitment to the state of Nevada which meant so much to it.

 

There being no further testimony, Chairman Sader closed the hearing on AB 470.

 

 

 

      ASSEMBLYMAN GIBBONS MOVED TO AMEND AND DO PASS AB 470 WITH THE AMENDMENTS PROPOSED BY THE NEVADA RESORT ASSOCIATION (EXHIBIT E).

 

      ASSEMBLYMAN CARPENTER SECONDED THE MOTION.

 

      ASSEMBLYMAN SCHERER HAD A CONFLICT OF INTEREST; THEREFORE, CHAIRMAN SADER EXCUSED HIM FROM VOTING.

 

      MOTION CARRIED.

 

Mr. Sader requested approval for committee drafting of a bill from the Department of Commerce which wanted a resolution urging the U.S. Congress to enact legislation to change the law as the U.S. Supreme Court interpreted it to allow unclaimed property to come back to the state of incorporation when it is a corporate asset (Exhibit H).

 

      ASSEMBLYMAN TOOMIN MOVED FOR THE DRAFTING OF THE BILL DRAFT REQUEST.

 

      ASSEMBLYMAN REGAN SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

Mr. Sader requested committee introduction of BDR43-1709 which increases certain minimum mandatory penalties for driving under the influence.

 

      ASSEMBLYMAN GIBBONS MOVED FOR COMMITTEE INTRODUCTION OF BDR43-1709.

 

      ASSEMBLYMAN TOOMIN SECONDED THE MOTION.

 

      THE MOTION CARRIED.

 

Mr. Sader requested committee introduction of BDR11-880 from the Welfare Division which requires a court when entering decrees dividing community income assets and obligations to make an equal division of property.

 

      ASSEMBLYMAN PETRAK MOVED FOR COMMITTEE INTRODUCTION OF BDR11-880.

 

      ASSEMBLYMAN SCHERER SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY.

 

There being no further business to come before committee, the meeting was adjourned at 9:48 a.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      CHANDRA PENDERLAND

      Committee Secretary

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Assembly Committee on Judiciary

April 20, 1993

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