MINUTES OF THE

      SENATE COMMITTEE ON JUDICIARY

 

      Sixty-seventh Session

      April 2, 1993

                             

 

The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 11:10 a.m., on Friday, April 2, 1993, in Room 224 of the Legislative Building, Carson City, Nevada.  Exhibit A is the Meeting Agenda.  There is no Attendance Roster.

 

COMMITTEE MEMBERS PRESENT:

 

Senator Mark A. James, Chairman

Senator R. Hal Smith, Vice Chairman

Senator Mike McGinness

Senator Dina Titus*

Senator Raymond C. Shaffer

Senator Ernest E. Adler

 

COMMITTEE MEMBERS ABSENT:

 

Senator Lawrence E. Jacobsen

 

GUEST LEGISLATORS PRESENT::

 

Assemblyman Bernard (Bernie) Anderson

 

STAFF MEMBERS PRESENT:

 

Dennis Neilander, Senior Research Analyst

Marilyn Hofmann, Committee Secretary

 

OTHERS PRESENT:

 

Larry Wissbeck, Chief Deputy Secretary of State, appearing for

      Cheryl A. Lau, Secretary of State

Mary Santina, Retail Association of Nevada

James F. Nadeau, Washoe County Sheriff's Office

 

Senator James opened the hearing on Assembly Bill (A.B.) 87.

 

ASSEMBLY BILL 87:Increases fees for filing or providing certain commercial documents and provides for searches of certain records for name of secured party.

 

 

 

 

*     Committee member only present for a portion of the meeting.  This is noted in the body of the minutes.

 

The first to testify was Larry Wissbeck, Chief Deputy Secretary of State, appearing on behalf of Cheryl A. Lau, Secretary of State.  Mr. Wissbeck referred to section 1 of the bill which states, "...a presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement...constitutes a filing."  He said this language "raises the specter" of someone attempting to file an inadequate document by paying the filing fee.  Mr. Wissbeck indicated the language in section 1 should read, "...tender of the filing fee and acceptance of the statement...constitutes a filing." He indicated this was a "housekeeping change" to insure documents filed by the Secretary of State are adequate.  Senator James asked why the word "or" was placed in the law which is based on the Uniform Commercial Code.  Mr. Wissbeck answered he was not aware of the reason for the placement of the word.  He said he was required to file an improper document because the law indicates the filing can be proper as to form or the fee can be paid. 

 

Senator Adler pointed out the Uniform Commercial Code had been "around for a long time" and he indicated he would like an opinion from Frank Daykin, former Legislative Counsel, who is the Uniform Law Commissioner.  Senator James agreed.  Mr. Wissbeck indicated the assembly committee did not focus on this issue.  Senator James stated he believed the language of the present statute meant a statement could be accepted without a fee and it would be deemed filed.  Senator Adler said the committee should review the comments of the Uniform Law Commissioners regarding the sentence in question. 

 

Mr. Wissbeck referred to page 5, line 17 of A.B. 87 and indicated the Office of the Secretary of State "has the possibility of providing a new service" which is a search by a secured party.  He said this was a "considerable task" which they can now provide because of access to the main frame computer.  Mr. Wissbeck said this was expensive and they felt a $15.00 fee should be charged.  He added the Washoe County Controller requested the change on line 17 of "filing officer" to "secretary of state," in order to relieve the counties of having to provide this service if they are unable to.   

 

Senator Titus entered the room at 11:25 a.m.

 

Mr. Wissbeck stated amendments to the bill were proposed since the assembly hearing.  The amendments are set forth on Exhibit B attached hereto.  Mr. Wissbeck said the increase in fee was to cover costs incurred.  A document setting forth other proposed fee increases is set forth as Exhibit C.

 

Senator Titus suggested a fee increase in section 1 to $1.00 instead of the proposed 75 cents, so a request would not have to be made in the next session.  Senator Adler agreed it would be better to have the fee be an "even number."  Senator James indicated the number was a "cap" and they charged actual cost.  Senator McGinness asked if the fees collected went into the general fund and Mr. Wissbeck replied they did.  Mr. Wissbeck pointed out the purpose of the amendment was to codify the charge in the Nevada Revised Statutes (NRS), as opposed to a single page entry in the Nevada Administrative Code. 

 

There being no further testimony on A.B. 87, the hearing was closed on the bill and opened on Assembly Bill (A.B.) 307.

 

ASSEMBLY BILL 307:      Reduces amount of time in which person must pay dishonored check or draft to avoid presumption of intent to defraud.

 

Testifying on behalf of Assemblyman Ken L. Haller was Assemblyman Bernard (Bernie) Anderson.  Mr. Anderson stated the bill was unopposed in the assembly judiciary committee.  He said the legislation was designed to make a small change from "three business days" to five calendar days" in order to assist banks in processing checks and to provide adequate notification.  Mr. Anderson said the request was originally made by gun shop owners who were unable to process checks before the person buying a gun left the area.

 

Senator James indicated he believed what the bill proposed was "a fairly serious change," because it was a presumption of intent to commit a crime.  He said the statute would presume the intent under the three scenarios set forth and would propose to cut the time in half.  Senator James stated he understood the reason for the request by the gun shop owners, but asked about all the other circumstances involved in writing a check without sufficient funds, in which there was no criminal intent.  Mr. Anderson stated he understood the concern. 

 

Senator Adler stated he had never heard of a crime involving bad checks being prosecuted because of time constraints on the part of the prosecuting attorneys. 

 

The next to testify was Mary Santina, Retail Association of Nevada.  Ms Santina stated it was their association who requested the change from "three days" to "five days."  She agreed with Senator Adler that  "white collar crime is very rarely prosecuted...."  Ms. Santina added the burden of proof regarding intent would be on the prosecutor at any rate. 

 

The last to testify was James F. Nadeau, Washoe County Sheriff's Office.  Mr. Nadeau said from a practical aspect, there was a considerable amount of time involved from the time the retailer receives the check, the check goes to the bank, is returned for "insufficient funds," and written notification is made.  He said it was not a case of writing a check on Friday when funds to cover the check are not deposited until Monday.  Mr. Nadeau said "five days" was not a problem regarding a "presumption to defraud."  He said the Washoe County Sheriff's Office had no concerns with the bill. 

 

Senator James asked if a "presumption of intent and knowledge" can be overcome and Senator Adler answered it could. 

 

There was no further testimony on A.B. 307 and the chairman closed the hearing on the bill.

 

There was no further business to come before the committee and the meeting was adjourned.

  

                                    RESPECTFULLY SUBMITTED:

 

 

           

                                                            

                                    Marilyn Hofmann,

                                    Committee Secretary

 

 

 

APPROVED BY:

 

 

 

 

                                

Senator Mark A. James, Chairman

 

 

DATE:                           

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Senate Committee on Judiciary

April 2, 1993

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