MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
May 20, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:10 a.m., Thursday, May 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
Ms. Stephanie Smith
Mr. Michael A. Schneider
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
None
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Mr. Gordon P. Moseley, Equal Rights for Fathers
Ms. Ande Engleman, Nevada Press Association
Ms. Patsy Redmond, Nevada Association of Realtors
Ms. Joan Buchanan, Real Estate Division
Mr. Bob Cavakis, Youth Correctional Services
Mr. Pat Coward, Nevada Dental Board of Examiners
Ms. Irene Porter, Nevada Home Builders Association
Mr. Richard H. Plaster, Plaster Development Co., Inc.
Mr. Nicholas Soraich, Director, Clark County District Attorney's Office, Family Support Division
Ms. Kay Zunino, Nevada Child Support Enforcement Division
Mr. Dennis McGarvey, Manager, Spanish Trail Golf and Country Club Community
Mr. Barry S. Goold, Attorney at Law, Goold, Patterson, DeVore and Rondeau
Ms. Liz Breshears, BADA
Mr. Lance Turner, Washoe County District Attorney, Family Support Division
Mr. David Reese, State Contractor's Board
Mr. Andy Maline, Plaster Development
Ms. Paula Berkley, State Board of Chiropractic Examiners
Mr. Michael L. Hill, Western Nevada Community College
Ms. Bobbie Gang, Nevada Women's Lobby
Ms. Lorraine Hoover
Ms. Margi Grein, Director of Finance, Nevada State Contractor's Board
ASSEMBLY BILL 581 Allows superintendents of Nevada youth training center and Caliente youth center to notify public upon escape of potentially dangerous inmate.
Mr. John Carpenter, Assembly District 33, explained to the committee this bill was introduced after talking to the members of the press and other media in Elko and realizing the problem they had after inmates escaped from the Nevada youth training center. Mr. Carpenter explained the feeling in Elko was that members of the community should know when there was an escape from the training center so they would be aware a convict was loose in the community. He pointed out there have been a number of incidents where members of the community had been held hostage, on one occasion a hostage was set on fire, and he, himself, had three vehicles stolen.
Ms. Ande Engleman, Nevada Press Association, called attention to the association's proposed amendments to the bill, Exhibit C. She called attention to lines 3 and 4, page 1, wherein the association proposed deleting "potentially dangerous," since those words left it up to the superintendents' discretion whether or not any description of any escapee would be released; requesting "may" be changed to "shall"; and add "and provide physical descriptions of those missing" at the end of line 4. Ms. Engleman explained it was the association's opinion if this information was released by the superintendent to the local media, whether newspapers or radio, then the public could be alerted. She did point out whenever there was an escape from the prisons in Carson City, a description was immediately released to the local media.
Chairman Sader called on Mr. Bob Cavakis, Director of Youth Corrections, who advised his organization supported the bill and the amendments suggested by the Press Association. Currently, he stated, they notified the press of an escape, but they could give any further information. He thought this bill would help.
Ms. Smith questioned if the current law prohibited release of this information.
Mr. Cavakis responded there was some question whether release of information was allowed, as NRS 62 considered all court records as confidential. He further stated the records received when minors entered the institutions came from the courts, but in Chapter 62 there was a prohibition against the press releasing the name or description of any of the children in custody.
Mr. Carpenter said he thought the Attorney General's interpretation of the current law was the institutions could release any information.
Mr. Collins asked why the bill addressed only Elko and Caliente and not the Spring Mountain Youth Camp or any other facility of Nevada.
Mr. Carpenter reported that he was only addressing Elko's problem, and he did not know if the residents of Spring Mountain had experienced the serious crimes that Elko had.
Mr. Collins suggested that all camps be included, as well as those to be built in the future.
Ms. Engleman stated they would not be opposed to that if the committee felt it would be appropriate.
Mr. Cavakis explained he could not speak for Spring Mountain or
China Springs, since they were county operated camps, but he reported there had been some problems in those camps on occasion.
Mr. Anderson questioned whether the superintendent would be required to notify the public, even if the escapee had been returned to the facility shortly after escape.
Ms. Engleman stated she felt the intent was to have the superintendent notify the public so that they could be forewarned for their protection. Mr. Carpenter responded to Mr. Anderson's question by saying as soon as there was an escape, all law enforcement agencies within the county were notified, and at that time it would be very simple to notify the press. He pointed out in Elko, radio was the best way to get the word out immediately.
Mr. Anderson explained his concern was in the process of notification, the escapee would be captured and returned prior to the superintendent getting to the radio station. He wondered if they would then have to follow through with notification to the public. He said if the wording was "shall," it would seem they would have to continue with notification.
Mr. Sader acknowledged Mr. Anderson had raised some good points and suggested a time limitation for notification of within an hour of discovery of the escape and a requirement that the juvenile must be at large so there were not notifications of escapes that occurred and were already under control.
Both Ms. Engleman and Mr. Cavakis agreed.
Mr. Toomin stated he thought if there was a law to report the escape, the capture should be reported as well.
Ms. Engleman said she had no objection.
Mr. Regan suggested that the word "immediately" might work.
Mr. Sader said he thought "immediately" might mean less than an hour, at the time the authorities were notified of an escape they must notify the public.
Mr. Carpenter declared he thought Ms. Engleman's suggestion was a good one, at the time the law enforcement authorities were notified, the media was notified. He stated he thought that would take care of the situation.
Mr. Haller, commenting on the use of the word "immediately," recalled Mayor Pete Sferraza experienced a real problem on defining the word "immediate" as it related to a notification on a child abuse situation. He thought there was a change in the law to not use "immediate" because of the fact that it could be misinterpreted.
Mr. Petrak asked how many students had escaped the center in the past five months.
Mr. Cavakis responded that none had left since January. He added two sessions ago their organization was given money to move the most chronic, violent inmates out of the institution, which gave them a lot more control. He stated they were also able to put a cap on the institution population, and at one point they were overcrowding nearly 40 percent.
Mr. Petrak asked Ms. Engleman if the news media had police scanners that would allow them to pick up messages that escapees had been returned to the facility.
Ms. Engleman stated she did not believe that Elko had that kind of equipment. In the Reno area, she pointed out, police scanners were now on a special frequency that could no longer be accessed by scanners and were totally confidential.
Chairman Sader recommended the committee accept the proposed amendment to A.B. 581, adopting the proposal of the Nevada Press Association, which required mandatory notification of any escape, with additional provisions the notification be within one hour of the time the superintendent became aware of the escape and assuming the inmate was still at large. Further, he stated, the superintendent "shall" notify the public of capture.
ASSEMBLYMAN COLLINS MOVED TO AMEND AND DO PASS A.B. 581.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
Mr. Carpenter voiced the opinion the notification should be as soon as practical after the law enforcement people were notified. He contended that one hour would give the escapee plenty of time to get into town, and he thought there were people who could call the radio station and the paper at the same time law enforcement was notified.
It was Chairman Sader's recommendation the committee handle the bill in the way requested by the sponsor of the bill. The proposed amendment would then state notification of the media be immediately after notification of local law enforcement authorities.
ASSEMBLYMAN COLLINS MOVED TO WITHDRAW THE MOTION TO AMEND AND DO PASS A.B. 581.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
ASSEMBLYMAN COLLINS MOVED TO AMEND AND DO PASS A.B. 581 AS RESTATED.
ASSEMBLYMAN PETRAK SECONDED THE MOTION.
There was a request from the committee for further clarification of the revised amendment. Mr. Sader restated, "The motion is amend and do pass with the amendment of the Nevada Press Association, which requires mandatory notification of any escape, and the notification shall take place immediately after superintendent notifies local law enforcement agencies of the escape and applies to inmates who remain at large at that time. In addition, he continued, the superintendent shall also notify the public of the capture of inmates."
THE MOTION CARRIED UNANIMOUSLY.
Chairman Sader pronounced the hearing closed on A.B. 581.
ASSEMBLY BILL 596 Makes various changes to encourage education of illiterate offenders in custody of department of prisons.
Jack Regan, Assembly District 19, addressed the committee regarding a conversation he had at the Community College of Southern Nevada with the prison program directors. He explained it was their feeling there was no good program to provide an educational advantage to the prisoners in the state system. Mr. Regan indicated he had quite a pile of statistics to prove there was a high correlation between a reduced rate of repeat offenders and a more intelligent inmate. He pointed out some of the states researched had more stringent legislation; if a prisoner did not make progress to become literate, there was no parole capability. Assemblyman Regan stated Assembly Bill 596 was not that strong and just provided the opportunity for the inmates to become literate. The committee was provided with a chart compiled by the Nevada Literacy Coalition showing a 9.6 percent illiteracy rate state-wide, varying from a high of 15.9 percent in Pershing County down to a low of 5.5 percent in Douglas County (Exhibit D). Mr. Regan reported he had received information from the Chief of the Bureau of Alcohol and Drug Abuse that the Vietnam Veterans had a small illiteracy program within the prisons.
Mr. Sader expressed concern about Section 5, page 3, lines 20 through 22, "...an offender is not eligible to participate in a program of work release unless he is regularly attending...", because he felt that incentives were needed in order to make the program work, but he stated he would stop short of a situation where the prisoner would be put into a lesser classification in a release situation. Otherwise, he pointed out, there would be the practice of actually keeping people in prison because they could not read or write, which would cost the taxpayer more money. Chairman Sader went on to say the incentive in Section 3, "...an offender......may not be assigned to an industrial or a vocational program unless he is regularly attending...." would be fine, because that was in the prison system, and while the programs provided good time credits, so did satisfactorily completing an education course. He asked if there were other places where there were such incentives that would have the effect of keeping someone within the prison walls longer if they were illiterate.
In response to a question from Mr. Regan regarding the wording, "shall" versus "...may not be assigned to an industrial...", Mr. Sader clarified if a person was illiterate and not attending and satisfactorily progressing in a program of general education, this person should not be placed in an industrial or vocational program. He stated there was no discretion in the matter and that section and Section 5 were where incentives were stated.
Mr. Regan said that he would be willing to amend the bill.
Mr. Anderson questioned Section 5, line 22 the word "satisfactory." He felt this would give the prison system the opportunity to make certain that a person who was in a work release program would also be trying to take care of his literacy or general education problem. Since the prison system would be the determiner of what the literacy rate would be in this bill, they would know whether or not the person was making satisfactory progress.
Mr. Toomin called Mr. Regan's attention to a fiscal note on the front of the bill. Mr. Regan said he had not seen a fiscal note and if recidivism could be cut down, there should be a cost savings.
Mr. Haller said it was his understanding maximum security prisoners received only educational programming on TV. He stated he understood most of the prisoners in maximum were there because they could not read or write, and if there was an extra cost, he felt that problem had been solved in the past.
Mr. Regan pointed out there were currently two education programs in Clark County which had never gotten "off the ground." Funds were limited, he explained, even for the purchase of books, and one book was being shared by several inmates. He thought this bill might provide an incentive for the system and the state to get involved with the education of prisoners.
Mr. Gibbons questioned if the requirements for literacy before joining the work, vocational, or work release programs might entail a 1983 civil rights violation for denial of access to one of the programs on the basis of lack of literacy. He asked Mr. Regan if he had discussed the issue with the bill drafter.
Mr. Regan said he had, and there would be no violation of a person's civil rights. He explained there was a potential of being harmed in a work program if a person was not capable of reading safety directions.
Ms. Liz Breschears, Chief of the Bureau of Alcohol and Drug Abuse, advised the committee she was prepared to present an example of a cost effective literacy program which was funded through the Bureau of Alcohol and Drug Abuse. Ms. Breschears referred to her handout, "Sharing Your Success", an adult literacy program (Exhibit E). On pages 20 and 21, she pointed out, there was a complete description of the prison alcohol and drug abuse program that was funded through discretionary funds. In 1991, she stated, her office was approached by the Incarcerated Vietnam Veterans Intervention Project, Vietnam Veterans Chapter 545, a chapter of Vietnam veterans currently in prison. They approached her organization, she explained, because they wanted to develop an alcohol and drug abuse program, and her office assisted them by performing a survey of other prisoners, with three areas identified: alcohol and drug abuse education, AIDS education and dysfunctional families. In addition, the prisoners advised the bureau the survey only worked with those who could read, and they felt illiteracy was a problem. Ms. Breschears declared through a competitive grant process they were funded through the prison system a program totalling $28,811. The literacy component which was one of three, she added, only cost $400. She went on to define that twelve inmates, who had volunteered to become peer tutors, were trained in the Laubach Way to Reading, and each tutor had a one-to-one ratio with a student. To date nine students were currently enrolled in the program, eight had completed the training, four of them went from grade level 1 to grade level 4, and an additional four students increased a minimum of a full grade, Ms. Breschears announced. This program, she stated, cost $20 per inmate. There were some problems, Ms. Breschears added. Inmate movement, where either the recipient of the tutoring or the tutor himself might be transferred, was a problem, as well as custodial care during tutoring sessions. Another problem, she pointed out, was with space within the prisons' systems.
Mr. Mike Hill, Director of Prison Programs for Western Nevada Community College in Carson City, stated he was requested by Dr. Mike Henderson of Community College of Southern Nevada to testify on behalf of Assembly Bill 596. He reported their program served the three prison institutions in Carson City. Mr. Hill explained he had been working in the program for six years and prior to that started his career as a policeman and had been working in law enforcement and criminal justice since 1969. Mr. Hill said he felt qualified, with his background, in stating the effect education had on inmates and incarceration and clarified the mechanism for teaching prisoners had been in place in the prisons in Nevada for quite awhile. Each prison, he explained, was served by an adult education program provided by the school district in the district which the prison served. Mr. Hill pointed out there were many programs already being funded, and he felt this bill provided the means to encourage individuals to participate in the program. Currently, Mr. Hill stated, other than the good time credits that were provided, there was no incentive to get involved in any of the programs in the prisons, although they were finding an increased interest on the part of the inmates to participate in programs. Some of them, he said, were beginning to realize if they were going to succeed or not return to prison, they had better start acquiring skills to make it on the outside.
Mr. Hill pointed out the Federal Bureau of Prisons established its first mandatory literacy program for federal prisoners in 1982 and had increased its level from sixth grade literacy standard in 1982 to a General Education Development Certificate, which was the current literacy standard in 1993. One interesting statistic, he declared, was 75 percent of people incarcerated were functionally illiterate. Mr. Hill contended if an uneducated and untrained person was kept there for five, ten or fifteen years and released uneducated and untrained, it was not surprising when they returned to prison. He remarked an over-used word that had come out was the word "recidivism" and stressed it was the total prison experience, as well as response and prevailing economic conditions and other matters, that would prevail. However, he stated, they were continuing to find that an educational experience would have an effect on post-release outcome. Mr. Hill read from an article by Sylvia McCollum, Education Administrator for the U.S. Bureau of Prisons. (Exhibit F)
In response to questions from Mr. Haller, Mr. Hill told the committee the effect of the bill on his program would not be immediate, because they were dealing with post-secondary education. The individuals in his program, he related, had to be high school graduates or have a certain educational ability. He explained this would have an impact on the existing GED programs run by the school districts. He remarked that they were already in place and was uncertain of their capacity to handle an increase. Mr. Hill declared he thought this bill made some very good points and made sense, and he felt if someone wanted to be involved in an activity, this would give him some opportunities to make some decisions in his life. He did not have any proposed changes to the bill.
Mr. Regan reported he had a copy of the McCollum study (Exhibit F) and requested he be allowed to read one paragraph, "The quality of the inmate workforce available to provide institution services, including institution maintenance, and to work in prison industries, is also an important consideration. Illiterate workers who cannot read instructions, fill in job related forms, prepare brief reports, or perform work related math are unnecessary strains on correctional systems which are already carrying the burdens of inadequate space, staff and related resources." Mr. Regan contended that there was a correlation of illiteracy factor in the work programs.
There being no further testimony, Chairman Sader closed the hearing on A.B. 596.
ASSEMBLY BILL 612 - Revises Uniform Common-Interest Ownership Act and Planned Unit Development Law. (BDR 10-479)
Chairman Sader related the issues and gave background on this bill for the committee. He stated the Uniform Common-Interest Ownership Act was enacted by the Nevada Legislature in the 1991 Session and came from a uniform state law that had been adopted in three states, Nevada being the fourth. Mr. Sader explained the law, in its application, proved to have numerous problems in the last two years in various areas. He explained the law dealt with how one managed, controlled, established and otherwise handled what were called common interest communities. Those included any real estate ventures, such as condominiums, planned-unit communities, timeshares and other types of situations in which there were commonly-owned facilities. This was basically a trailer bill, he claimed, trying to clean up provisions of the act which had been found to be a problem. He admitted the bill still needed a lot of work and there were many people who were uncomfortable with various provisions. Chairman Sader advised he would be handling the matter himself and would start with some working group sessions the following week. He announced he wanted to review the highlights at this meeting and stressed anyone who had problems with any issue in the bill or in Chapter 116 that had not been addressed in the bill, should submit them in writing immediately with proposed changes and a rationale.
Renny Ashleman, on behalf of the Nevada State Homebuilders Association, reported last fall he and Steve Hartman met with Chairman Sader and volunteered to head up a group to try to coordinate the many diverse groups affected by the bill. He said many mini-hearings had been held in Las Vegas and other places, trying to communicate with those persons thought to be the principal players (Exhibit G). He reported he had received extensive additional comments and he would take these to the working group in the interest of saving time.
Mr. Ashleman declared the first set of major changes had to do with how long the declarant or developer could stay in control and explained there were currently clauses that stated if there had not been certain types of activities over a relatively short period of time, the developer had to yield control of the homeowners, condominium owners, or timeshare owners associations. He went on to relate there was concern about that, because if that control was lost the desirability for anyone else to come in and finish was thereby diminished. He went on to say there were technical problems regarding matters that did not conform with ordinary practices that needed to be changed.
Mr. Ashleman went on to the next set of corrections having to do with notices of delinquency and failure to pay assessments or dues to these organizations. The act currently had filing information regarding the recorder but was deficient in letting the person who held the unit know he was in trouble financially and at risk of having his unit ultimately sold at foreclosure, so language was drafted, he stated, to address that problem.
There was a problem, Mr. Ashleman explained, with the identification of units. When a community was first drawn up, there might not be a street address or an actual identifying number, he advised. Mr. Ashleman related the act did not make any provision for that, so the identification parts were technically deficient.
Mr. Ashleman explained the way in which filing of documents was performed had technical glitches that did not match either Nevada law or Nevada practice, and language had been drafted to try to get at that problem. He related it was expensive to comply with this act and keep up with it.
Mr. Ashleman pointed out technical problems with the fact the act called for a person being able to rescind if he did not see his unit. Typically, he stated, the unit was not even built; the people saw models.
There were further technical items that, he said, might not have been properly addressed that were in written remarks, presented as Exhibit G.
Chairman Sader felt the committee had a good idea of what the bill covered and stressed the fact this was a big issue and extremely important for anyone who was in a condominium, planned-unit community or cooperative.
Ms. Irene Porter, representing the Nevada Homebuilders Association, announced her people would work with Chairman Sader at his call.
Mr. Sader asked for the names of those who wished to be included for notice in the working group, as they would meet the following week to go over the proposed revisions. A deadline of Wednesday, May 26, was set by Chairman Sader to have comments to
him. Thursday, May 27, 1:30 was set as the date for the first meeting.
Richard Plaster, a home builder in Las Vegas, expressed his appreciation for the committee's willingness to consider modification of Chapter 116. He explained a couple of problems that his counsel had run into with the act and declared it was possible for an owner of a condominium to end up with an unmarketable title and a situation where he could not sell his unit. The revisions in the amendment, he stated, would make the act more fair because by simple, clerical errors it would be possible for a developer to be subject to penalty. Mr. Plaster advised Chairman Sader that he would be participating in the
working group.
Dennis McGarvey, Property Manager at Spanish Trail, a 1200 unit community in Las Vegas, was next to testify and announced he was a founding member of the Southern Nevada Chapter of Community Associations Institute, a national organization of community association professionals. Mr. McGarvey declared that his group was of the opinion NRS 116 needed some changes but stated they did not feel this was the way to go. He presented possible changes submitted by Messrs. John Leach and Michael Buckley, two lawyers who were members of CAI, addressing the problems they had from a legal angle (Exhibits H & I). From a management standpoint, Mr. McGarvey stated he wanted to outline the problems the homeowners had with NRS 116. He remarked he had people come to him from across the Vegas valley with problems and had seen a 77 year old lady in tears because her association was not run correctly. She wanted to sell her home and move to Indiana to live with her sister but could not do it because the association had never had an audit, financial statements, or minutes of the meetings. The board's reasoning, he related, was they had changed the CC&R's. The small associations, he declared, needed NRS 116 the most as the roadmap to show them how to operate and how to conduct the day-to-day activity of an association. He referred to a section that put a cap on reserves at 10 percent. Mr. McGarvey contended he needed to take 25 percent of the fees in order to fully fund and not have any special assessments. It was Mr. McGarvey's personal feeling NRS 116 exempted associations formed before January 1, 1992. He stated he felt it should be retroactive, at least from the management of the these associations.
Mr. Sader asked Mr. McGarvey what he thought about a system whereby a majority of the members of the association could opt into the chapter.
Mr. McGarvey stated he thought that would be fine.
Mr. Barry Goold, Senior Partner of Goold, Patterson, DeVore and Rondeau, introduced himself to the committee and announced he had been practicing real estate law almost exclusively for fifteen years. He stated he was very familiar with the bill, having studied it when it was enacted two years ago, and had given seminars to home builders in Clark County and conducted sessions regarding the bill. Mr. Goold said he thought the bill was good, although it did need some work. He related the story of the seven wisemen who looked at the elephant, and each saw something different. This bill, Mr. Goold declared, affected many different industries and legal areas. With respect to Mr. McGarvey's comments, Mr. Goold stated he thought a lot of abuses that might have led to this enactment really did not come from the home builder's side but from the ongoing management side. He expressed concern about extending the bill to make it retroactive, because when dealing with real estate and real property the basic fundamental notions of the legal system were not to make those things retroactive because property rights that have already become vested would be affected. He stressed if the committee entertained that type of a motion, he would implore them to keep it in the area of the on-going management of the associations, as it would not be an appropriate thing to do with respect to the declarations of covenants, conditions and restrictions, disclosure statements, etc.
Mr. Goold declared he was concerned about the liberal raising of the exemptions. He contended in fifteen years of experience in real estate, those who said it put the larger builders at a competitive disadvantage were correct. He stated he would also have to think that, although he had seen very few abuses, when they were seen, he thought they came from the "mom and pops," not the Lewis Homes or the Signature Homes.
In conclusion, Mr. Goold related a feature of the act that required all monies delivered to the seller in connection with the purchase of a home to be delivered in escrow. This, he announced, was a horrible oversight in the area of funds for upgrades. Mr. Goold referred to a situation where the buyer said to the developer, "I love your model, but I want blue tile in the kitchen." He pointed out the builder had spent the money out of pocket to put blue tile in the kitchen, the buyer did not qualify for the loan, and the builder was stuck with blue tile in the kitchen which he had to rip out and replace to sell the investment he has made of $100,000 or $200,000. He declared those monies for upgrades should be released to the builder.
Mr. Goold told the committee he thought the bill was an important first step and had many good points and advised the chairman he would like to assist with the subcommittee process.
Mr. Haller wondered if there was any federal regulation involved that should be looked at and if there was any statute other than NRS 116, perhaps the corporation law, that might have to be included in the consideration of the bill.
Mr. Sader announced he would deal with the latter question, explaining the corporations law did affect this, since most of the homeowner groups were usually non-profit corporations. He declared there was a problem with making this chapter consistent with the non-profit corporation statutes if the homeowners association was formed under that statute. In fact, he continued, the applicability provisions and how this chapter affected others, such as the planned unit chapter and corporations, was a major issue. Mr. Sader asked if someone could answer the federal law question.
Mr. Ashelman responded there was some federal regulation in the area, but he did not feel this bill was in conflict.
Mr. Andy Maline announced that he would participate in the subcommittee group. (Exhibit J)
Chairman Sader declared the hearing closed on A.B. 612.
After a brief recess, Mr. Sader indicated at the hearing on the previous day a member of the audience had stated A.B. 625 was Mr. Bennett's bill. Mr. Sader declared that Assemblyman Bennett wished to announce in most emphatic terms he had no knowledge, no interest and no involvement in Assembly Bill 625. Mr. Sader requested that the minutes of the previous day's meeting not reflect the comment which was incorrect.
ASSEMBLY BILL 604 Provides additional remedies for collection of child support. (BDR 11-795)
Assemblyman William Petrak, District 18, Clark County, stated he had sponsored A.B. 604 after several of his constituents had come to him seeking help in obtaining the child support due them. One person, he related, told him she had three children and had not received child support in the amount of $23,000. Currently, he reported, this woman had two jobs to support the children while her ex-husband drove around in a fancy car, had a good position, and she could not get any help from him at all. Mr. Petrak stated he felt very strongly about this serious problem. He introduced Kay Zunino who he announced would explain some of the provisions of this legislation.
Ms. Kay Zunino, Chief of Nevada Child Support Enforcement Program, introduced herself as well as Mr. Nicholas Soraich, Director of the Clark County District Attorney's Family Support Division and Mr. Lance Turner, Director of the Washoe County District Attorney's Family Support Division. Ms. Zunino advised the committee of the fiscal and administrative impact of A.B. 604 on her program and stated that she was fully in support of the intent of this bill. (Exhibits K & L) After reviewing each section where there were problems, Ms. Zunino requested the committee amend AB 604 to delay implementation of the section pertaining to the application of a penalty or delinquent obligation until after the installation of NOMADS in 1995, since it was part of the general system design. Ms. Zunino encouraged Mr. Soraich and Mr. Turner to add any comments they had at this time.
Mr. Soraich expressed a problem with adding the number of staff necessary to implement such a procedure, which would impact their program substantially in Clark County. He explained they were presently awaiting approval of their supplemental budget and had not prepared for any additional staff for this kind of a program. He added they had just purchased an AS-400 for $300,000 as their old computer system was outdated and overworked.
Mr. Turner contended their program in Washoe County would be substantially affected, due to the Family Support Division's very limited budget, and declared they just did not have the money at this time to make a substantial change to the computer program.
Ms. Zunino emphasized in no way did their program wish to delay implementation of such a penalty, but as it was built into the system design and the new system was mandated by 1995, it would just be appropriate to include that. She reported there would be federal legislation on the same subject. Senator Bill Bradley of New Jersey, she told the committee, had proposed a very comprehensive child support enforcement bill which did include interest or penalties on arrearages.
Mr. Sader asked Ms. Zunino if mandated by 1995 meant January 1, 1995.
Ms. Zunino replied she thought it was October 15, 1995. Chairman Sader announced it was clear if the committee was going to process the bill, they would need a subcommittee to work on some of the matters. He asked Mr. Soraich and Mr. Turner if they had any further comments.
Mr. Soraich felt there had been many positives in child support in the last few years and expressed the feeling bills like Assembly Bill 604 could assist greatly with enforcement. There were some items to be clarified in order to put teeth into the bill, he stated, and licensing was a very important issue.
Mr. Sader declared something needed to be figured out regarding what to do with corporations and corporate shields if they were to proceed with the licensing provisions. He pointed out people who were licensed would go from individual status proprietorships to corporations and simply avoid the issue by doing so.
Mr. Toomin referenced Section 2, subsection (2), and questioned where the ten percent penalty went.
Ms. Zunino responded the penalty would go to the custodial parent.
Mr. Toomin asked if there was some way whereby part of that percentage would be involved with lessening the fiscal note.
Ms. Zunino said there were two kinds of cases in their program, the AFDC cases and the non-AFDC cases. She explained if there were an AFDC client for whom child support was being pursued, the parent would have assigned her rights of support to the state, so a provision could be built in where the interest that was earned on that amount would be returned as part of that debt to the state. She pointed out they already were collecting the debt to the state; it simply did not have any interest applied.
Mr. Haller said he knew of at least one city in the state where the minimum requirement for employment in classified service was a driver's license, and it seemed to him that somehow taking a job possibility away would not help.
Ms. Zunino responded in looking at this bill, it referred specifically to professional licensing bills, which brought up the matter of who had to be licensed, such as a doctor, a social worker, etc. She stated the question was the definition of a professional license. Ms. Zunino explained the boards that issue professional licenses in Nevada were simply boards, like the medical board, the dental board, contractors board, etc.
Mr. Haller pointed out if a teacher's certificate was to be taken away, it would take away the ability to make the money to pay the child support.
Ms. Zunino declared that equated to the philosphy of throwing someone in arrears in his child support in jail. To put more teeth into the bill, she contended, the license would be held for six months, then if the person did not pay, the court would decide whether the license should be revoked.
Mr. Haller explained in the case of teacher certification, for example, there were certain rules the state department of education had to follow. He stated he did not think they would be happy about having another rule.
Chairman Sader remarked the bill dealt with Chapter 54, Regulatory Boards, and teachers were not included. The question of who should be included, he stated, was a serious issue and something the subcommittee should deal with.
Mr. David Reese, attorney for the State Contractors Board, and Ms. Margie Grein, the controller for the board, spoke in opposition to the bill. Mr. Reese stated while they applauded the effort of Assembly Bill 604 and its sponsors, there were problems with the bill, and he wanted to present the perspective from the standpoint of the board. NRS 624.230 renders bids and contracts by unlicensed contractors void, he pointed out. A bill like this, he contended, which yanked the license of a person for non-support, would affect all of those people who worked for the contractor and the people who had contracted with him. Mr. Reese referred to NRS 624.320, which prevented collection of any compensation for contract work unless the contractor was licensed at all times during the performance of the act of bidding, contracting or performance thereof. He pointed out while the threat of not being licensed might compel payment of support in a few cases of some sole proprietors, there were also corporations, partnerships, limited partnerships, limited liability companies, business associations of many different types licensed by the State Contractors Board. He suggested the down side to the scenario posed by Sections 10, 11 and 12 was far greater than the benefits that might be realized. It was Mr. Reese's contention this type of penalty wipes out the person's ability to collect on his contracts in order to pay support, plus the business would be damaged which could cause his inability to pay employees' wages, taxes, SIIS contributions.
Mr. Reese advised the committee there had been serious efforts by the board to get at the problem of unlicensed contractors. He pointed out the support violator was a contractor who had a license, complied with all the requirements, labor laws and has a higher degree of responsibility than the unlicensed contractor. With this bill, Mr. Reese contended, the otherwise licensed contractor was driven underground. He maintained the man would not quit working or making a living but would be operating in an unlicensed area where the consumers and the public were put at a greater risk. He pointed out NRS 624.360 made it a crime to contract without a license and the first offense was a misdemeanor punishable by a $500 to $1,000 fine and up to six months in jail. The second offense, he added, was a gross misdemeanor punishable by a $1,000 to $2,000 fine and up to a year in jail, so these were added consequences of contracting without a license. It was Mr. Reese's feeling the type of person who would be the target in this bill would be that violator, and he suggested the bill be given serious consideration with respect to those particular sections.
Mr. Reese reported he did not have any idea of the cost of implementing this program.
Ms. Margaret Grein, director of finance for the contractors board, announced currently there was no temporary license status with their board and this could mean a possible fiscal note for the cost of setting up a computer system and for additional board hearings. Currently, she reported, their board had quite a backlog on hearing cases, and this would tie up that process even more.
Mr. John Gibbons, a representative of the Nevada Real Estate Division, voiced the division's objections to the bill. Revocation of licensees, he declared, would put a financial burden on the division of approximately $25,000 to create a temporary license and hire additional people to check the list monthly for those who were licensed.
Mr. Pat Coward, representing the Dental Board of Examiners, testified the board supported the concept but had some problems with Section 12. He declared the board would be happy to assist a subcommittee in working out some of the problems with the bill.
Ms. Paula Berkley of the State Board of Chiropractic Examiners reported they had some technical problems with this bill, and the board would be happy to work with the subcommittee.
Mr. Gordon Moseley testified against Assembly Bill 604 on behalf of Equal Rights for Fathers, a non-custodial parent association advocating fathers' rights. (Exhibit M)
Ms. Lorraine Hoover testified in opposition to Assembly Bill 604 and stated since more aggressive laws toward collection of child support had been adopted, the caseloads had increased, and she thought a different solution should be considered. (Exhibit N)
Ms. Bobby Gang, representing the Nevada Womens Lobby, supported Assembly Bill 604 as a way to address some of the problems related to non-support. Officers of the court, she stated, had long felt the enforcement of child support was a legal obligation by the obligor parent that had not been taken seriously in many instances. Ms. Gang pointed out this had created an increase in welfare rolls of single heads of households with dependent children. Too many obligor parents, she declared, did not live up the court ordered child support and/or avoided paying at all. She stated the Nevada Womens Lobby would make a definite statement for those obligor parents who felt they could cheat their children and cheat the system, and child support should not be treated differently than any other obligation bill that an individual might have monthly. She pointed out any charge account, professional bill, etc. had an assessment for late fees when it was not paid. Ms. Gang suggested a penalty of 10 percent per annum for nonpayment of child support and believed setting up of posters to exhibit "dead beat" obligor parents was a good social lesson. Ms. Gang maintained that someone needed to acknowledge lack of child support as abuse and agreed with the idea of reporting the obligor parent who was deeply in arrears to a professional license board. She asserted if the individual could not accept an order issued by an officer of the court, then how could the state justify continuing to license this person by the laws of the state. She declared to give that parent a temporary license for 150 days, with the right to regular license should the obligor parent pay the arrearages, was an act of forgiveness.
Mr. Toomin, directing his remarks to Mr. Reese, declared he was a licensed contractor in the state of Nevada, and he took exception to his testimony. He declared if facts and figures were checked, very few unlicensed contractors were ever brought before a judge in this state for any type of reprimand. Mr. Toomin said he did not consider that a fault of the contractors board, but he just wished to point that out. He stated any reponsible contractor if he was issued a temporary license with an amount of time to bring his payments in compliance, would do so.
Mr. Reese commented the board did not have any provision presently for issuing temporary licensed and as a practical matter, when a person received a license he was required to bond, open SIIS and employment security accounts, and other things required to go into business. He did not think it made much sense to issue a temporary license and then possibly be unable to collect on his contracts.
Chairman Sader suggested the committee amend this bill to give the person a probation period to make payment and if he did not, the license would be revoked. In that way, he stated, a new category would not have to be created, and they would be given a period of time to cure the problem. He stated that on the matter of revoking a license, perhaps there could be some provision on these licensees that would specify it would affect prospective business relationships rather than current or retrospective business relationships. He admitted that did not address all of the issues, but it at least approached some of the problems of ongoing business and third party relationships.
In response to a question from Mr. Collins as to who would serve the jail time in the case of a gross misdemeanor, Mr. Reese responded if they had taken the license of a listed violator his indication was this person would not stop working.
Mr. Collins questioned if an individual was hiding under a corporation, how could one attach a corporation.
Mr. Reese declared the license could only be taken from a sole proprietor, as a corporation was a separate entity and was not liable for child support. If an individual who was a principal in a corporation owed child support, they would be able to come in and attach his interest in that corporation.
Ms. Smith questioned if someone had the qualifications for getting a license, were there any criteria with regard to past criminal records.
Mr. Reese responded there were.
Chairman Sader closed the hearing on A.B. 604, appointing a subcommittee composed of Mr. Petrak, Mr. Gibbons, Ms. Smith, Mr. Toomin and he stated he would assist with efforts.
ASSEMBLY BILL NO. 360 Requires 1-year term of imprisonment as condition of suspension of sentence for causing death or substantial bodily harm while driving under influence of intoxicating liquor or controlled substance. (BDR 43-915)
Chairman Sader stated he had a request from the Attorney General's office to reconsider A.B. 360 and advised the committee had indefinitely postponed the bill for a good reason because the testimony that was not convincing at all. Chairman Sader reported Judge Lehman had given the committee information that he had a good program going regarding the problems associated with this bill. Mr. Sader related the problem the Attorney General wanted to bring to the committee's attention, which the committee did not hear at the meeting. He stated currently the law allowed a judge to sentence to a term of imprisonment and up to a ten-year probation after that. While that worked in Clark County in drug court situations, he reported some of the other judges in other parts of the state were using it to sentence people to long terms of imprisonment--five, six or seven years--and then a ten-year probation after that. He pointed out the practical problem the prison people had was in being able to parole these people.
ASSEMBLYMAN PORTER MOVED TO RECONSIDER A.B. 360
ASSEMBLYMAN COLLINS SECONDED THE MOTION
THE MOTION PASSED. (ASSEMBLYMAN GREGORY VOTED NO)
There being no further business to come before the committee, Chairman Sader adjourned the meeting at 11:00 a.m.
RESPECTFULLY SUBMITTED BY
Barbara D. Tonge
Committee Secretary
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Assembly Committee on Judiciary
May 20, 1993
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