MINUTES OF MEETING

      ASSEMBLY COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      May 4, 1993

 

 

The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:14 a.m., Tuesday, May 4, 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. Bernie Anderson

      Mr  John C. Bonaventura

      Mr. John C. Carpenter

      Mr. James A. Gibbons

      Mr. William D. Gregory

      Mr. Ken L. Haller

      Mr. William A. Petrak

      Mr. John B. Regan

      Mr. Michael A. Schneider

      Ms. Stephanie Smith

      Mr. Louis A. Toomin

 

COMMITTEE MEMBERS ABSENT:

 

      Mr. Tom Collins, Jr.      Absent/Excused

      Mr. Gene T. Porter, Vice Chairman      Absent/Excused

      Mr. Scott Scherer      Absent/Excused

 

GUEST LEGISLATORS PRESENT:

 

      None

 

STAFF MEMBERS PRESENT:

 

      Ms. Denice Miller, Research Analyst

 

OTHERS PRESENT:

 

      Mr. Ben Graham, Nevada District Attorney's Association

      Mr. David Sarnowski, Chief Deputy District Attorney's

        Office

 

Following roll call, Mr. Sader began the work session on the bills listed on the agenda.

 

 

 

ASSEMBLY BILL 77 -

 

      Revises provisions regarding loitering and vagrancy.

 

Mr. Sader explained the bill had constitutionality problems.  He said to correct the problem there were two possibilities: first was to make some changes but still have a state statute on vagrancy and loitering.  Second, Mr. Graham proposed an amendment which simply deleted those portions of the loitering and vagrancy statutes which had been declared unconstitutional (Exhibit C).  Mr. Sader said if the second option was adopted there would not be a state statute on loitering and vagrancy and the issue would be left up to the local governments to decide in each individual case if the local government wished to promulgate such an ordinance.

 

Mr. Ben Graham, Nevada District Attorney's Association and Mr. David Sarnowski, Chief Deputy District Attorney's Office were in agreement on the proposed amendment (Exhibit C).

 

      ASSEMBLYMAN TOOMIN MOVED TO AMEND AND DO PASS WITH THE AMENDMENT PROPOSED BY MR. GRAHAM AB 77 (EXHIBIT C).

 

      ASSEMBLYMAN GIBBONS SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

 

ASSEMBLY BILL 312  -

 

      Revises qualifications for issuance of gaming license or finding of suitability.

 

Mr. Sader explained the proposed amendment on AB 312      (Exhibit D).  Mr. Sader pinpointed the additional language which the Gaming Control Board was to consider for gaming suitability on page 2, Section 1, subsection 2(b) at the end of (3) which said " ... and to the extent permitted by federal law, labor relations and standards;" as well as the new Section 2 which had extensive new language which mandated, in situations where the federal government through the National Labor Relations Board had alleged or decided a strike by employees of a licensee was an unfair labor practice, there would be binding arbitration.

Mr. Sader explained federal enabling law was necessary in order for either of these amended provisions to be effective because currently these would not be allowed under federal law.

 

      ASSEMBLYMAN HALLER MOVED TO AMEND AND DO PASS WITH THE PROPOSED AMENDMENT (EXHIBIT D).

 

      ASSEMBLYMAN SMITH SECONDED THE MOTION.

 

Mr. Carpenter said health, safety, environmental protection and consumer protection were already in the statute and these things were handled by other agencies and this was why the Gaming Control Board had difficulties.  It would not take any action until the other agencies had taken action on matters first.  Mr. Carpenter said he did not like to see any additional language added to this statute when the Gaming Control Board could not even enforce what was in the present law.  Mr. Carpenter was not in favor of the motion because under the present law there was already authority to do something.

 

Mr. Haller disagreed with Mr. Carpenter and felt the bill was necessary to address a very real problem which could destroy the gaming industry in Las Vegas as well as Reno.  He believed if the bill passed it would not have any effect on the federal situation and the change in law.  He emphasized perhaps the gaming board needed to be given a little incentive toward solving a real problem which could destroy the gaming industry in Nevada.

 

Mr. Toomin asked Mr. Sader to clarify Section 2, subsection (a) which stated "250 or more....".  He asked if this was the final number or was this amended to a lower number.  Mr. Sader said he was absent during this portion of the testimony and he was not aware of the issue.  Mr. Gibbons interjected this was an issue he had asked the proponents of the bill with regard to the number of employees which was to be included in this mandatory arbitration.  They had established, simply out of thin air more or less "250 or more of the employees" which would serve as the cut off point although the proponents agreed there was a strong chance or a likelihood other institutions and entities with less than 250 employees would also benefit from this.  Mr. Gibbons explained the proponents decided to leave the minimum at 250 for application purposes of this provision.

 

Mr. Schneider could not support the amendment to the bill because it set a precedent in the state where binding arbitration would be forced on private enterprise.

 

Ms. Smith said obviously from the testimony on AB 312 there was a great problem and anything which could be done to encourage things to get settled and people to do their jobs was the right thing to do and this was why she was in favor of the motion.

 

Mr. Petrak supported the motion because he believed the Gaming Commission needed to be prodded into being more careful when it issued gaming licenses.

 

Mr. Sader asked Mr. Haller as the maker of the motion to consider a "friendly amendment" to be incorporated into the motion.  Mr. Sader requested on page 2 of the amendment subsection 2(b)(3) after the words "Record of compliance with federal and state laws, insert the words "including but not limited to" so there would not be any interpretation by the Gaming Control Board that an exclusive list was created which could not consider anything else like criminal record, taxes, etc.  Ms. Smith as the second of the motion concurred.

 

Mr. Gibbons said a record of compliance inferred a criminal conviction.  He requested if the new language was incorporated into the amendment then it should say a criminal conviction of the violation of federal and state laws rather than simply a record of compliance.  He said there were significant property right interpretations in such a determination and a final decision should be made by a court rather than some public agency with regard to a violation of a standard or regulation.

 

Mr. Sader asked Mr. Gibbons to amend the main motion because his proposal could be controversial.

 

Mr. Gibbons moved to amend the amendment to require a criminal conviction on Section 1, subsection 2(b)(3) rather than simply a record of compliance with a federal agency.  Mr. Sader said so instead of reading "record of compliance" it would read "convictions of" or similar language.  Mr. Gibbons agreed and added taxes and other issues which were not included as an inclusive issue could be determined because it was federal and state law. 

 

      ASSEMBLYMAN GIBBONS MOVED TO AMEND THE MAIN MOTION ON AB 312 TO REQUIRE A CRIMINAL CONVICTION.

 

      ASSEMBLYMAN TOOMIN SECONDED THE MOTION.

 

Mr. Anderson asked Mr. Gibbons if his suggested change would water down the Gaming Control Board's ability to take into consideration the other items under Section 1, subsection 2(b)(4)(5)(6) where it said "reputation, habits and associations."

 

Mr. Gibbons said the problem with the way the amendment read currently was it was an agency determination and it did not specify which agency. Mr. Gibbons said criminal record versus a civil violation of a statutory regulation, such as an environmental issue, oftentimes did not reach certain elements of the criminal statutes.  Mr. Gibbons said his suggestion would not water anything down but instead would require a much stricter standard.

 

Mr. Haller was in opposition to the proposed amendment to the amendment because what Mr. Gibbons desired was already contained under Section 1 subsection 2(b)(2) which said "Criminal record, if any;".  Mr. Haller also pointed out he had read the records of the proceedings of both the Board and the Commission, and it appeared to him from the way they operated if they sensed violations, even though an alleged violation did not go through a judicial procedure or process, they had been very tight on licensing people in the state.  He felt the amendment was unnecessary.

 

Mr. Sader also opposed the amendment to the main motion.  He said the whole purpose of Section 1 subsection 2(b)(3) was to bring into play various types of administrative and possibly civil proceedings in the regulatory field which might or might not result in convictions, but if the bill was to have any merit the Gaming Control Board should be allowed to look at those types of regulatory proceedings no matter what the result was so it could make a determination with regard to suitability for the purpose of issuing a gaming licensing.

 

Ms. Smith said it was inappropriate to add "Criminal Conviction" to Section 1 subsection 2(b)(3) because the section dealt with the Gaming Control Board considering the suitability of an applicant applying for a gaming license.  Therefore, Ms. Smith did not support the motion.

 

Mr. Gibbons pointed out the example of false advertising and how it was not a civil liability; therefore, "record compliance" in certain cases indicated a criminal conviction.  The issue certainly had to be taken to court.  He said it was not just an agency determination and this was the reason why the bill should have some consideration for the fact a court adjudication of some of these issues was required.

 

Mr. Sader restated the amendment to the main motion.  He said on Section 1 subsection 2(b)(3) to change the term "Record of Compliance with federal and state laws...." to "A conviction of federal and state laws......."  

 

Mr. Sader asked for a roll call vote on the amendment to the main motion.

 

      THE MOTION TO AMEND THE MAIN MOTION ON AB 312 FAILED.

 

      ASSEMBLYMEN CARPENTER, GIBBONS, GREGORY, REGAN, SCHNEIDER, AND TOOMIN VOTED YES. 

 

      ASSEMBLYMEN ANDERSON, BONAVENTURA, HALLER, PETRAK, SMITH AND SADER VOTED NO.

 

      ASSEMBLYMEN COLLINS, PORTER AND SCHERER WERE NOT PRESENT.

 

Mr. Sader asked the committee if there was any further discussion on the main motion to amend and do pass.

 

Mr. Toomin proposed the following amendment: "upon notice of the injured party that the Control Board immediately or within a reasonable time hold a hearing to answer the charges on the issue of continued license suitability."

 

      ASSEMBLYMAN TOOMIN MOVED TO AMEND THE MAIN MOTION ON AB 312 AS STATED.

 

      ASSEMBLYMAN PETRAK SECONDED THE MOTION.

 

Mr. Sader asked for further discussion on Mr. Toomin's amendment to the main motion.

 

Ms. Smith said the language needed to the cleaned up.  Mr. Sader said it was his intent if the motion passed to complete the discussion, obtain a vote and then bring the amendment back to the committee for review before it went to the floor.

 

Mr. Sader asked for a roll call vote on Mr. Toomin's amendment to the main motion.

 

      THE MOTION TO AMEND THE MAIN MOTION ON AB 312 CARRIED.

 

      ASSEMBLYMEN ANDERSON, BONAVENTURA, CARPENTER, GIBBONS, PETRAK, SMITH AND TOOMIN VOTED YES.

 

      ASSEMBLYMEN GREGORY, HALLER, REGAN, SCHNEIDER AND SADER VOTED NO.

 

      ASSEMBLYMEN COLLINS, PORTER AND SCHERER WERE ABSENT.

 

Mr. Sader said now there was an amended motion which required a mandatory hearing on gaming suitability.

 

A discussion followed.

 

Mr. Sader asked for a roll call vote on the amend and do pass as amended motion.

 

      THE MOTION TO AMEND AND DO PASS THE MOTION AS AMENDED ON  AB 312 FAILED.

 

      ASSEMBLYMAN HALLER, PETRAK, SMITH AND TOOMIN VOTED YES.

 

      ASSEMBLYMAN ANDERSON, BONAVENTURA, CARPENTER, GIBBONS, GREGORY, REGAN, SCHNEIDER AND SADER VOTED NO.

 

      ASSEMBLYMEN COLLINS, PORTER AND SCHERER WERE ABSENT.

 

Mr. Anderson suggested returning to the original motion presented by Mr. Haller.

 

      ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS AB 312.

 

      ASSEMBLYMAN SMITH SECONDED THE MOTION.

 

A discussion followed.

 

Mr. Sader requested a roll call vote.

 

      THE MOTION TO AMEND AND DO PASS AB 312 FAILED FOR LACK OF AN ABSOLUTE MAJORITY.

 

      ASSEMBLYMEN ANDERSON, BONAVENTURA, HALLER, PETRAK, SMITH, TOOMIN AND SADER VOTED YES.

 

      ASSEMBLYMEN  CARPENTER, GIBBONS, GREGORY, REGAN, AND SCHNEIDER VOTED NO.

 

      ASSEMBLYMEN COLLINS, PORTER AND SCHERER WERE ABSENT.

 

Mr. Sader said AB 312 would be considered again on Friday, May 7th during work session when the full committee would be present.

 

 

 

 

 

SENATE BILL 234 -

 

      Requires department of parole and probation to approve or assist in development of plan for placement of prisoner released on parole.

 

Mr. Anderson, the chairman of the subcommittee on SB 234, said there were not any large difficulties with the bill and he recommended it should move forward.

 

      ASSEMBLYMAN ANDERSON MOVED TO DO PASS SB 234.

 

      ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

 

ASSEMBLY BILL 115 -

 

      Protects certain persons and organizations from liability for damages in regulating and removing hazardous materials.

 

Mr. Anderson, the Chairman of the subcommittee on AB 115 discussed the suggested amendment (Exhibit E).  He recommended inserting the terms "actual" and "voluntarily" to eliminate the problem of people coming out and doing this for a profit.

 

      ASSEMBLYMAN ANDERSON MOVED TO AMEND AND DO PASS AB 115.

 

      ASSEMBLYMAN HALLER SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

ASSEMBLY BILL 463 -

 

      Expands circumstances under which alcoholic or drug addict convicted of crime is eligible to elect treatment for abuse of alcohol or drugs before sentencing.

 

Mr. Sader explained the bill had opposition at the hearing.  There were two suggestions:  First, there was discussion of limiting the deletion on controlled substances to "sell, traffic or possession including 14 grams or less."  Also one of the prosecutors testified clarification was necessary relating to crimes committed after a certain effective date.  Mr. Sader recommended the effective date of July 1st making it effective to crimes committed on or after that date.  There was a further suggestion to clean up language in NRS Chapter 458 on mandatory sentences if this bill passed.  The essential issue was passing the bill in any form including a compromise to 14 grams. 

 

Mr. Sader stated the proposed amendment was 14 grams plus a July 1st effective date as to crimes committed on or after that date plus any changes in language in Chapter NRS 458.

 

      ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS AB 463

 

      ASSEMBLYMAN HALLER SECONDED THE MOTION.

 

Ms. Smith asked Mr. Sader if the definition of trafficking was to be redefined.  Mr. Sader replied this request would bring up some substantial issues and he preferred to address it in another bill.

 

Mr. Gibbons was in opposition to AB 463 because he believed a drug treatment program was designed for the ultimate use of the person who was addicted, not the drug trafficker.  He strongly emphasized this bill would allow people who knew the law regarding trafficking to carry less than 14 grams in order to be permitted to attend the treatment program but to avoid prosecution.

 

Mr. Carpenter agreed with Mr. Gibbons.  Mr. Carpenter added according to the testimony the District Attorney's office had a procedure currently available to help individuals who were first time traffickers.

 

Mr. Sader supported the motion.  Mr. Sader stressed the problem with this issue was there was no black or white.  He said oftentimes people who were users, because of the expenses of their habit started to sell small time.  He noted these people were not the classic definition of major sellers of controlled substances, but they were involved in sales and trafficking.  He felt these people could be helped by this kind of a program. He believed such persons could be diverted out of the criminal justice system by solving their drug dependency problem.  He was strongly influenced by the statistics indicating over 80 percent of the individuals incarcerated were either alcohol or drug dependent or both.

 

Mr. Toomin supported the bill.

 

Mr. Sader asked for a roll call vote.

 

 

 

      THE MOTION CARRIED TO AMEND AND DO PASS AB 463.

 

      ASSEMBLYMEN ANDERSON, BONAVENTURA, GREGORY, HALLER, PETRAK, REGAN, SCHNEIDER, SMITH, TOOMIN AND SADER VOTED YES.

 

      ASSEMBLYMEN CARPENTER AND GIBBONS VOTED NO.

 

      ASSEMBLYMEN COLLINS, PORTER AND SCHERER WERE ABSENT.

 

ASSEMBLY BILL 469 -

 

      Ratifies technical corrections made to NRS and statutes of Nevada 1991.

 

Mr. Sader explained AB 469 would not be considered during this work session because Mr. Scherer said there was an involved amendment which was not ready.

 

ASSEMBLY BILL 494  -

 

      Authorizes establishment of securities exchange in Nevada.

 

Mr. Bonaventura explained the proposed amendment to AB 494 (Exhibit F) deleted the current language in the bill and substituted the new language from the amendment.

 

Mr. Sader clarified the bill would authorize a security exchange exempting out security exchanges registered by the United States Securities and Exchange Commission.  He pointed out the Secretary of State was allowed to regulate and provide for minimum bonding and capitalization by regulation.  He said the bill allowed the Secretary of State to charge fees, to investigate backgrounds and to deny, suspend, or revoke registration.  He explained the Secretary of State became a regulatory authority. 

 

Mr. Bonaventura explained Mr. Scherer's concerns were addressed in Section 2 regarding fees which could be charged which were not to exceed one quarter of one percent of the total value of each transaction.

 

      ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS AB 494.

 

      ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

 

SENATE BILL 293 -

 

      Prohibits denial of attorney's fees and costs in civil action solely because prevailing party is state, local government or public officer or employee.

 

Mr. Sader said the reason the bill was not passed at the hearing was because he had some questions on definitions and technical language.  He requested clarification on how the bill defined "public employees" and why the bill did not use terms like "political subdivision of the State of Nevada" and "unit of local government" which were defined terms in the NRS.  He said after consultation with the amendment bill drafter, she agreed the changes in definition would be helpful to clarify the bill's  attempt to exempt all public officers and employees and include them in the proposal for reasonable attorneys' fees (Exhibit G).

 

      ASSEMBLYMAN REGAN MOVED TO AMEND AND DO PASS SB 293 WITH AMENDMENT #410 (Exhibit G).

 

      ASSEMBLYMAN PETRAK SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

Mr. Sader explained he received proposed amendments to AB 523, AB 464 and AB 560 and they would be heard in work session on Friday, May 7th.  Mr. Sader supplied the committee with the proposed amendment to AB 523 (Exhibit H).

 

Mr. Sader explained AB 312 would be addressed again at Friday, May 7th's work session when there would be a full majority of committee members to vote.

 

Mr. Sader said SJR-2 with a proposed amendment would also be considered at Friday, May 7th's work session.

 

Mr. Sader requested approval of the minutes dated 2/2, 2/3, 2/4, 2/5, 2/8, 2/9, 2/11, 2/12, 2/17, 2/19, 2/22, 2/23, 2/24, 2/25 and 2/26 in February and minutes dated 3/2, 3/3, 3/5, 3/8, 3/9, 3/10, 3/15, 3/16, 3/17, 3/18, 3/19, 3/23, 3/24, 3/25, 3/26, 3/30 and 3/31 in March.

 

      ASSEMBLYMAN GIBBONS MOVED TO APPROVED THE MINUTES FROM FEBRUARY AND MARCH.

 

      ASSEMBLYMAN BONAVENTURA SECONDED THE MOTION.

 

      THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT.

 

 

There being no further business to come before committee, the meeting was adjourned at 9:45 a.m.

 

      RESPECTFULLY SUBMITTED:

 

 

                             

      CHANDRA PENDERLAND

      Committee Secretary

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Assembly Committee on Judiciary

May 4,, 1993

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