The Committee on Judiciary was called to order at 8:04 a.m., on Friday, March 19, 1999. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All Exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Mr. Bernie Anderson, Chairman

Mr. Mark Manendo, Vice Chairman

Ms. Sharron Angle

Mr. Greg Brower

Ms. Barbara Buckley

Mr. John Carpenter

Mr. Jerry Claborn

Mr. Tom Collins

Mr. Don Gustavson

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

COMMITTEE MEMBERS ABSENT:

Mrs. Ellen Koivisto

GUEST LEGISLATORS PRESENT:

Assemblywoman Vivian L. Freeman, District 24

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Chairman Anderson called the meeting to order and announced the committee received two Bill Draft Requests (BDRs)

• BDR# 43-752: Revises provisions concerning certification of certain devices used to test intoxication of person. A.B. 620

• BDR# 14-545: Makes various changes concerning central repository for Nevada records of criminal history. A.B. 621

ASSEMBLYMAN CARPENTER MOVED TO INTRODUCE BDR# 43-752 AND BDR# 14-545.

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson reviewed the request for a Bill Draft concerning gaming devices would be introduced to both houses of the Nevada Legislature. The BDR# 1645 would have different language from the handout the committee received from Mr. Anderson. BDR# 1645 went from one page to ten pages.

Chairman Anderson opened the hearing on A.B. 464.

Assemblywoman Vivian L. Freeman, District 24 testified for A.B. 464. She reviewed the problem with drug sales in regional parks and local public parks. Assemblywoman Freeman was particularly concerned with the Pat Baker Park in her district. The neighborhood in northeast Reno was low income with a racial mix of one third Caucasian, one third African, and one third Hispanic. The neighborhood constructed the park in one weekend through the organizational efforts of Pat Baker. Pat Baker received national attention when Charles Kuralt interviewed Pat on his television show, On The Road. Assemblywoman Freeman stated most of the methamphetamine (meth) labs raided by the Reno Police Department this year have been located in her district. One meth lab was located two blocks from Rancho San Rafael which was the premier of regional parks.

Chairman Anderson stated he and some of his Fred W. Traner Middle School students laid sod for the Pat Baker Park.

Sherrie K. Doyle, Councilwoman Ward 4, Reno City Council testified for the bill. She learned from Assemblywoman Freeman to "find out what the people want," if you want to get something done. Before she was elected to the Reno City Council, Ms. Doyle was Chairwoman of the Northeast District Council for about 3 years. When she was walking the precincts of her district, the citizens told her their number one concern was to clean up the parks from the drug dealers who had taken over the parks. Parents wanted their children to play in a safe park. With the help of parents and the Reno Police Department, Pat Baker Park was declared a drug free zone with the help of signs and night lighting. Most of the drug dealers who ignored the drug free zone had out of state license plates. Ms. Doyle strongly supported stiffer penalties for drug dealers dealing drugs in Pat Baker Park. She mentioned a representative from the Reno Police Department traveled to Las Vegas to assist the Las Vegas Metropolitan Police Department to set up drug free zones in their "high risk" parks. Ms. Doyle stated she lived four blocks from Pat Baker Park. She wanted her two daughters to be able to use the park and feel safe from drug dealers.

Niles D. Carson, Deputy Chief, Police Department, City of Reno testified for A.B. 464. He stated Pat Baker Park was not the only park with problems, but it was the most visible park with drug problems. He wanted families to be able to use all the parks and feel safe. Chairman Anderson asked about the definition of a playground. Mr. Carson stated some of the parks did not have one or more apparatus intended for the recreation of children, such as a sliding board, teeterboard, sandbox or swingset. Mr. Carson wanted parks used as soccer fields protected under A.B. 464.

Assemblyman Manendo mentioned he strongly supported the importance of having safe parks. He asked about the 1,000 feet perimeter as stated in the bill having a fiscal impact because some housing projects are located within the 1,000 feet perimeter of the park. Mr. Carson responded most of the housing projects already had rules not to deal drugs in the housing project.

Assemblywoman Leslie wanted to know how practical was the 1,000 feet perimeter. Mr. Carson responded he did not think there would be a circle drawn on a scaled map around a park. He felt the illegal activity was in the park or in the streets near the park. He stated a row of houses would probably be a barrier to the police or the prosecutor applying the law to suspected drug dealer.

Assemblywoman Freeman stated a teenager was killed in Sportsman Park.

Chairman Anderson stated the bill gave the district attorney another card to use to prosecute a suspect. Assemblywoman Freeman reviewed Ms. Doyle had worked to have an alcohol and drugfree zone. This bill sends a strong message to the drug dealers, "drugs will not be tolerated in the parks."

Chairman Anderson closed the hearing on A.B. 464.

ASSEMBLYMAN MANENDO MOVED TO DO PASS A.B. 464.

ASSEMBLYWOMAN ANGLE SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

ASSEMBLY MANENDO MOVED TO PLACE A.B. 464 ON THE CONSENT CALENDAR.

ASSEMBLYWOMAN ANGLE SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Assemblywoman Freeman will present the bill to the Assembly. Assemblyman Manendo will backup Assemblywoman Freeman in presenting the bill to the assembly.

Chairman Anderson stated Assemblymen Anderson, Brower, and Manendo, and Mr. Williams read the minutes and put corrections in the minutes.

ASSEMBLYWOMAN MCCLAIN MOVED TO ACCEPT THE FEBRUARY 4, 1999 AND THE FEBRUARY 9, 1999 COMMITTEE ON JUDICIARY SECRETARIAL MINUTES.

ASSEMBLYMAN CLABORN SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson mentioned he had received three more BDRs.

• BDR# 1-841: Increases benefits for surviving spouses of justices of Supreme Court and district judges. Requestor: Administrative Office of the Courts. A.B. 622

• BDR# 1-844: Provides for additional judge in fifth judicial district. Requestor: Administrative Office of the Courts. A.B. 623

• BDR# 2-852: Revises provision procedure for awards of attorney’s fees in civil actions. Requestor: Administrative Office of the Courts. A.B. 624

ASSEMBLYMAN MANENDO MOVED TO INTRODUCE BDR# 1-841, BDR# 1-844, AND BDR# 2-852.

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOVE.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson opened the hearing on A.B. 87.

Marvin Leavitt, Director of Legislative & Intergovernmental Affairs, City of Las Vegas testified for A.B. 87. The bill was based on concerns in the area of construction defects. There were a number of costly lawsuits against the City of Las Vegas over the past couple of years. He stated the City of Las Vegas collected $9.8 million in building permit fees paid for the inspection of constructed buildings worth $1.1 billion. The City of Las Vegas was facing a serious fiscal crisis.

William P. Henry, Senior Litigation Council, City of Las Vegas testified for A.B. 87. The City of Las Vegas requested the bill because of the troublesome lawsuits over the past 2 years. The lawsuits have asserted the City of Las Vegas and the building inspectors had a liability for the inspection of buildings. The lawsuits were troublesome for two reasons

• First, Nevada was about the only state where such a lawsuit was known.

• Second, these lawsuits have been expensive to defend and the implications for liability.

The reason for drafting this bill was to repair the hole in the immunity in Nevada. Most other states currently have immunity in their state statutes. In Nevada government employees have discretionary immunity. Despite state statues, the Nevada Supreme Court had ruled unless there was a lawsuit and the defect existed and was so open and obvious no building inspector would have missed the defect. Therefore, the building inspector approved the defect with the building inspector’s knowledge. This involved the concept of proof through circumstantial evidence. Those citizens who sued the City of Las Vegas viewed a building inspector as a construction manager or as quality assurance expert responsibility for the quality of the construction. The responsibilities of a building inspector were to inspect to minimum compliance to the building code. When a certificate of occupancy was given in Las Vegas, the building inspector signed off on the structural integrity of the building. He restated the building inspectors were neither construction managers nor quality assurance managers.

Mr. Henry was given information from Bob Wilkins, the Director of Building and Safety in the City of Las Vegas. In 1998 there were 15,000 building permits issued for construction worth $1.5 billion. 47 building inspectors performed 300,000 inspections conducted in 1998. Each building inspector performed 30 to 35 building inspections per day. The building inspectors were on the construction sight 10 to 15 minutes per inspection. The building inspection budget was $8 million a year. Mr. Henry asked Mr. Wilkins what would be the budget figure for full compliance with the code for every board and every nail. Mr. Wilkins stated none of the states perform full compliance inspections. At least one building inspector would have to be at a building site for every minute of construction. Mr. Wilkins would need 500 building inspectors and a $80 million annual budget. Building permits would go from $600 to $6,000 for a residential housing permit. A rule of thumb was for every $1,000 increase in the price of a house, 1,500 potential buyers would be priced out of the market. With full compliance the City of Las Vegas would continue to have litigation problems. For 1999 the City of Las Vegas self-insurance fund was set at $5 million. The self-insurance fund would have to grow to $20 million. The increase in self-insurance would have to come from the park department and neighborhood services.

Chairman Anderson stated the question concerning solvent liability was going to be looked into by an interim study committee.

Mr. Henry stated the Nevada Supreme Court had not ruled in the $50 thousand liability limit concerning condominium projects. Would the liability limit be $50 thousand per project, per condo or per inspection. At $50 thousand per condo for a condo project of 576 condos would have a potential liability of $29 million. Mr. Henry stated the lawsuits be recorded with the Clark County Recorder. This would provide future owners of the property a record of the construction defects. Mr. Henry wanted to have an escrow account established to monitor the money awarded in a lawsuit be spent on making the necessary repairs.

Assemblyman Collins asked if large projects hired their own inspectors. Also what was the relationship between the increased cost of inspectors versus the reduced cost of defects. Mr. Henry responded the 47 inspectors were for single family residential construction. Big construction projects hired their own building inspectors. Mr. Henry stated if the building inspectors were increased tenfold, the City of Las Vegas would be in a better position to defend their inspections in lawsuits. The legal fees would be the same with the tenfold increase in the number of inspectors.

Assemblywoman Buckley asked if the budget for building inspectors was $8 million and the building inspection department brought in $9.8 million, where was the $1.8 million. Mr. Henry assumed the $1.8 million went into the general fund.

Assemblywoman Buckley would like to see more building inspectors hired with the $1.8 million. She asked how many more building inspectors would be needed to do a fairly good job of no defects in the inspections. Mr. Henry stated the building inspectors have done a good job inspecting. The question was where should the responsibility be placed with the contractor or with the building inspectors.

Mr. Williams felt the contractor should be financially responsible for construction defects, not the government (building inspectors).

Assemblyman Carpenter stated he was an Elko County Commissioner. He stated the building inspection department was an income producer for the county. He suggested the building code should be changed to what the building inspectors would have time to inspect. Mr. Henry responded the uniform building code exists to tell the builders how to build. The first chapter of the uniform building code explained the responsibilities of building inspectors. Building Inspectors were not at the building site as guarantors or to provide a warranty. He gave the example of bank examiners performing their function well, but there were still some bank failures. The Las Vegas Fire Department did an excellent job preventing fires, but there were still fires. The Nevada Supreme Court had ruled the public duty was owed to the public in general, not to the individual. Building inspectors are the only government entity subject to lawsuits.

Mr. Brower stated Nevada Revised Statutes (NRS) 41.033 provided immunity for the City of Las Vegas and its employees. He asked if the Calloway decision by the Nevada Supreme Court created a loophole in immunity. Mr. Henry responded the Calloway decision had created a loophole in immunity. The Calloway decision had been withdrawn to consider the economic loss factor.

Mr. Brower asked how the proposed change on A.B. 87 page 4 line 12, "failure to discover or to act reasonably after discovering such a hazard, deficiency or other matter, whether or not an inspection is made," would address the concerns of the City of Las Vegas. Mr. Henry reviewed how the city was drawn into lawsuits through an allegation of circumstances the building inspectors had actual knowledge but despite the knowledge they approved the construction. Doing this would be unreasonable. The language changed to a lawsuit cannot be brought for failure to discover or to act reasonably after a building inspector discovered work to establish immunity.

Mr. Brower observed the problem was the city being accused of the failing to act reasonably to discover construction problems. Mr. Henry stated if the building inspectors never inspected a building, the building inspectors would not have any liability. The building inspectors have liability because they inspected the building.

Chairman Anderson asked Mr. Henry what were the qualifications for a building inspector for the City of Las Vegas. Mr. Henry stated there were no particular qualifications for building inspectors. Most building inspectors were certified by outside groups with a background of years in the construction industry.

Chairman Anderson asked if there was a national standard for building inspectors the city of Las Vegas had adopted for their building inspectors. Mr. Henry mentioned a number of the building inspectors were certified.

Chairman Anderson referred to the section in A.B. 87 stating a future property owner would be made aware of construction defects. He asked what would a reasonable person do concerning page 4 line 12, "Failure to discover or to act reasonably after discovering such a hazard, deficiency or other matter, whether or not an inspection is made." Mr. Henry responded the problem was troublesome. The purpose of the bill was to gain immunity from lawsuits. Mr. Henry stated, "The perfect should not be the enemy of the good." The quality of construction in the City of Las Vegas was better because of building inspectors. If the building inspectors were held to doing perfect inspections, the costs would raise building permit fees from $600 to $6,000 driving a number of potential homebuyers out of the market.

Chairman Anderson asked about page 3 lines 33 to 38 would a homeowner having repairs done to their home be able to recover the motel expenses of having to move out of their home while their home was unlivable during the repairs. Mr. Henry viewed the cost of repairs performed by the homeowner or the motel expenses during the repairs to the home as reasonable cost of repairs.

Chairman Anderson asked if the homeowner would have to go to the Administrative Office of the Court (AOC) to prove their case and recover their money. Mr. Henry responded additional language would clarify reasonable expenses to be reimbursed to the homeowner.

Madelyn Shipman, Assistant District Attorney, Washoe County District Attorney testified for A.B. 87. Section 3 was a restatement of the law. She spoke about page 4 line 12; the building inspector’s responsibility was to make the homeowner aware of the defect to communicate with the contractor to repair the problem area. She stated sections one and two protect the innocent buyer of a home having had defects.

Chairman Anderson asked if the Assembly Committee on Judiciary should wait until the several bills currently being heard in the Senate come to the Assembly. Ms. Shipman stated there were several bills in the Senate. These bills would change NRS chapter 40. She mentioned S.B. 286 had the same language as section 1 in A.B. 87.

Robert Maddox, Attorney, Nevada Trial Lawyers Association testified against A.B. 87. See (Exhibits C, D, and E). In the fastest growing state in the nation, some builders were in too big a rush to get their projects to market, mistakes were made and the homebuyer later discovered his/her dream home turned into a nightmare. Most unfortunately, governmental entities with some responsibility for overseeing the work of the builders had been virtually no help to the consumers of the State of Nevada. City and county building departments complain of being overworked and thus unable to provide adequate inspections. Traditionally, the government entities had sovereign immunity and were not liable for missing inspections nor were they liable for negligently conducting inspections. Currently, the only exposure to liability faced by building departments involving construction inspections was where the governmental entity had knowledge a defect in construction existed and failed to take proper reasonable action as a result of having become aware of such a hazard. The obvious purpose for such a rule was to encourage governmental entities to act reasonably so hazardous conditions in residential construction were corrected and not simply hidden in the completed home.

• 1. There was no beneficial purpose served by requiring the homeowner with a defective construction claim to record the claim at the office of the county recorder.
• 2. Nevadans did not need big brother to control homeowner’s money received in settlement of a construction defect claim so as to assure the money was used to repair the defects.
• 3. It would be bad public policy to say governmental entities were completely immune from liability even in situations where they have actual knowledge of defective conditions and approved the construction anyway.

The problem was not the claim. The problem was the construction defect. Instead make the owner of a defectively constructed home record the notice of claim to the builder, the builder should be required to record soil reports and other data available to the owner demonstrating adverse conditions in the property being sold by the builder. Instead of assuming all homeowners who pursue construction defect claims are not really sincere about fixing their homes, the cities and counties should be putting their energies into a concerted effort at the source to assure residential construction complied with applicable building codes. Finally, instead of seeking to avoid responsibility for participation in the cover up of defectively constructed homes, the cities and counties should be stepping up to the plate and acting responsibly in the first place.

Scott Canepa, Attorney, Nevada Trial Lawyers Association testified against A.B. 87. Mr. Canepa stated he practiced law in Las Vegas and almost exclusively represented homeowners in faulty construction suits. Presently the City of Las Vegas had liability only where they actual knowledge of the defect and approve the defect anyway. The Nevada Supreme Court had long held governmental agencies were not immune from liability for known construction defects and the defects were allowed to pass inspection.

"If the County had knowledge of the defects, the County owed a duty to take action as a result of the discovery of the deficiencies. Immunity will not bar actions based on the public entity’s failure to act reasonably after learning of a hazard. Butler v. Bogdanovich, 101 Nev. 449, 451 (1985).

Governmental immunity protects the City from liability for negligence in the performance of inspections. NRS 41.033. However, if a city conducts a building inspection and approves a building permit with knowledge a defect in construction exists, the city was subject to liability. Butler v. Bogdanovich, 101 Nev. 449, 751, 705 P.2d 662, 663 (1985). Similarly, in this case, the City can be liable only if appellants prove the City had actual knowledge of the alleged construction defects and failed to take the proper action as a result of the discovery. We conclude if the City knew of the alleged defects, the City could reasonably foresee the defects could injure appellants and the amount of damages could be reasonably calculable. Calloway v. City of Reno, 113 Nev. 564 (1997)."

Mr. Canepa showed a Department of Building & Safety for the City of Las Vegas inspection permit where the building inspector wrote the defects on the inspection ticket and approved without any corrective action. The inspection ticket stated to "nail FHA straps" and "tie first floor bedroom wall." FHA straps hold the first floor and second floors together.

Mr. Canepa read court testimony of Howard Stewart, a building inspector for the City of Las Vegas.

"Q. At the time you approved the framing, the fire stop chimney at the trusses was not installed, correct?

A. I would assume so, looking at this ticket.

Q. And you knew that because you wrote it on the ticket, right?

A. I wrote it down, yes, sir.

Q. And you nevertheless approved the framing anyway, correct?

A. I did, yes.

Q. Okay. And at that time, the lack of the fire chimney at the trusses was a violation of the Uniform Building Code, correct?

A. As far as I understand.

Q. And you understood and knew that at the time you approved this inspection, correct?

A. It appears to be.

Q. Three-quarter inch plywood required at the water heater stand. Is that a code requirement as well?

A. Yes.

Q. And at the time you approved this inspection, the three-quarter inch plywood was not installed correctly; is that right?

A. I can only assume looking at the ticket it wasn’t."

Mr. Canepa urged the committee to reject the proposed immunity of building inspectors who approved a building inspection ticket when the building inspector noted the defect on the inspection ticket released the builder from being responsible for correcting the defect.

Mr. Brower asked if knowledge had to be actual knowledge or could the knowledge be constructive knowledge under the case law. Mr. Maddox responded circumstantial evidence could be used to prove actual knowledge not constructive knowledge. Mr. Canepa stated rarely were municipalities found guilty of constructive knowledge because of the high burden of proof on the part of the homeowner.

Vice Chairman Manendo closed the hearing on A.B. 87. He opened the hearing on A.B. 462.

Assemblywoman Buckley testified for A.B. 462 concerning eviction law. In Nevada if a tenant fell behind in their rent, the tenant could be given a five-day nonpayment of rent notice. At the end of five days, under NRS 40.253 the landlord could apply for a summary eviction notice. Summary eviction was unique to Nevada. It was created for uncontested eviction cases to get into court quickly. Usually, the landlord would apply for the summary eviction notice on the six day. The courts set the hearing within 48 hours. If the tenant did not apply for a hearing, the eviction order was issued and served on the sixth day. In Clark County there was an abusive practice on the part of some landlords. During the five-day period a number of apartment complexes have teamed up with a lawyer. When a tenant was a day late paying their rent, the tenant was told their rent was not acceptable and to go to the law firm. The law firm would inform the tenant there was a $75 in attorney fees. Nevada eviction procedure was in NRS 40.253 and NRS 118A. Currently a court may award an attorney fee to either the landlord or the tenant. A consumer credit agency contacted Assemblywoman Buckley about 9 months ago. The consumer credit agency counseled clients who had serious credit problems. Their clients were being extorted the $75 attorney fee. Assemblywoman Buckley stated NRS 118A, the landlord/tenant laws and NRS 40.253, the procedure to evict, were separate laws. The separation was the cause for the confusion.

A.B. 462 attempted to clarify the law to landlords and property managers. Page 4 lines 13 to 19 of her bill read, "A landlord shall not refuse to accept rent from a tenant that is submitted after the landlord or his agent has served or had served a notice pursuant to subsection 1 if the refusal is based on the fact that the tenant has not paid collection fees, attorney’s fees or other costs other than rent, a reasonable charge for late payments of rent or dishonored checks, or a security. As used in this subsection, ‘security’ has the meaning ascribed to it in NRS 118A.240." Page 4 line 26 to 29 read, "’Rent’ means all periodic payments to be made to the landlord for occupancy of a dwelling unit, including, without limitation, all reasonable and actual late fees set forth in the rental agreement."

Assemblyman Brower asked if the costs or fees were the expenses for giving notice to the tenant? Assemblywoman Buckley responded no. The five-day notice forms are preprinted and the landlord or property manager can deliver the five-day notice so there are no serving fees. In NRS 118A, a landlord or property manager cannot automatically assume someone had to pay an attorney fee because the tenant had not been in court. The landlord or property manager had been using an attorney to extort fees from the tenant.

Assemblyman Brower asked if she agreed it was reasonable to give notice, but did she dispute the notice caused the landlord substantial costs. Assemblywoman Buckley responded, "absolutely." There was a difference between charges owed by the tenant and the tenant not paying rent. There were several ways for a landlord to collect fees without evicting the tenant.

Assemblywoman Angle stated she had owned rental properties. She asked if the tenant did not pay their rent for an extended period of time, could the landlord recover the fees for small claims court? Assemblywoman Buckley responded, "no." She mentioned the five-day eviction notice had been going on for years and Nevada had the shortest eviction notice in the country. It did not make sense to kick people out of their apartment when the tenant had all their rent.

Chairman Anderson stated he was a landlord. He stated he had a tenant who was late with the rent and would get caught up paying his rent over a two-year period. He wanted to know what he could do with the late tenant. Assemblywoman Buckley responded a landlord could serve a 30-day no cause notice, second, serve a five-day nonpayment notice and proceed with eviction using the tenant’s security deposit to cure any default.

David L Howard, lobbyist, representing Northern Nevada Apartment Association and Silver State Apartment Association testified for A.B. 462. His association had observed a practice that needed to be corrected. He had poled his members. They felt this bill would solve the problem.

Pat Coward, Lobbyist, representing Nevada Apartment Association and Association of Realtors testified for A.B. 462. He stated the realtors devoted serious efforts to be professional through training and behavior. He stated the bill deals with residential property not commercial property.

C. Joseph Guild III, lobbyist, representing Manufactured Homes Community Owners testified for A.B. 462. He stated he was a landlord. He was appalled to learn of the behavior of some landlords. He agreed with page 4 lines 13 through 19 in the bill. He asked if the definition of rent on line 13 was the total amount of rent or a partial rent payment. Assemblywoman Buckley responded line 13 meant the total amount of rent due.

Vice Chairman Manendo closed the hearing on A.B. 462.

CHAIRMAN ANDERSON MOVED TO DO PASS A.B. 462.

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

CHAIRMAN ANDERSON MOVED TO PLACE A.B. 462 ON THE CONSENT CALENDAR.

ASSEMBLYWOMAN OHRENSCHALL SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

• BDR# 1-675: Provides that in certain counties board of county commissioners may determine whether to increase number of justices of the peace when population of township provides for increase. A.B.629

ASSEMBLYMAN CARPENTER MOVED TO INTRODUCE BDR # 1- 675.

ASSEMBLYWOMAN BUCKLEY SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson opened the hearing on A.B. 454.

Stan Olsen, Lieutenant, Las Vegas Metropolitan Police Department (LVMPD) testified for A.B. 454.

Chris Bunn, Detective Narcotics, LVMPD) testified for A.B. 454. He stated there was an explosive number of methamphetamine (meth) labs. From 1995 to 1998 there was a 450 percent increase in the number of meth labs in the Las Vegas Valley. Currently for 1999, Las Vegas Metropolitan Police Department had responded to 97 meth labs. There were no NRS statutes against the manufacture of methamphetamine. Exhibit F was a list of the ingredients of meth, which could be purchased at hardware or a feed and tack stores. Because the ingredients were legal, it was difficult for law enforcement to interdict the meth labs.

Manufactured locally, meth eliminated the need to import or transport the product. See (Exhibit G). The manufacture of meth and the increased use of meth were a serious problem across the nation. The law for a first time offense for manufacturing meth was one to six years. Unless the defendant had a long criminal record, the defendant received probation and was right back to running another meth lab. 40 percent of the meth lab arrests had been repeat offenders.

A person arrested for transporting or selling meth could receive a life sentence with a mandatory 10-years of time served in prison. A person convicted of having manufactured meth could receive a 1 to 6 year sentence, which could be served as a probation sentence. With the expanded use of meth, female users of meth equaled male meth users. The increased use of meth in the community required a lab response team composed of a sergeant and five officers employed full time responding to meth labs in the Las Vegas area.

In fiscal year 1998-1999 the meth response team was over their budgeted amount because of overtime pay for the team. A serious fiscal impact to the community was the cost for clean up and disposal of meth lab. In 1997 the cleanup and disposal costs exceeded $70,000. In fiscal 1998-1999 the budgeted figure of $125,000 had been expended with an additional $75,000 requested.

Meth labs fit the Occupational Health and Safety Administration as well as the Environmental Protection Agency’s definition as a hazardous waste/dump site. For every clandestine laboratory, the LVMPD was the generators of hazardous waste and became responsible for the meth lab waste forever. Over 75 percent of the meth labs were located in either hotel/motels or rental properties. After the primary contamination was removed, the property owners were left with massive cleanup and decontamination cost of usually $2,000 to $3,000 for each lab sight. Those costs were passed onto the legitimate consumers as increased room rates. Either fire or explosions at the lab discovered 15 percent of the meth labs. The Stardust had a fire break out on the 26^th floor of the hotel from a meth lab problem with 3 citizens being transported and treated for smoke inhalation and exposure to hazardous materials.

An example of the violence from the use of meth was a father who had been heavily using meth for several days; he cut off his son’s head and threw the head out the car window because the dad thought the police were watching the dad through the son’s eyes.

Assemblyman Carpenter asked if his legitimate business, a gas station/convenience store that sold the ingredients, which were on the list of meth indicators, would need an exception amendment in A.B. 454. Mr. Bunn responded, "no." The intent of the use of the items was a major part of A.B. 454.

Mr. Carpenter asked why marijuana being a controlled substance was not mentioned in A.B. 454. Mr. Bunn responded marijuana was addressed in other statutes.

Chairman Anderson asked about the 3 to 5 year sentence and the fiscal impact. Mr. Olson responded the Legislative Counsel Bureau (LCB) recommended the 3 to 5 years sentence because of being consistent with narcotic laws. He stated there would be an impact on the prisons, but the fiscal impact to the community as a result of the cleanup of all the meth labs busted was a far greater fiscal impact than the fiscal impact to the prisons. Mr. Bunn requested a change in the bill from hazardous waste to hazardous materials. Ms. Lang stated hazardous waste was defined in NRS. If the term were changed to hazardous materials, hazardous materials would have to be defined in NRS. Mr. Olson stated to stay with the existing language.

Jeff Kaye, Detective Sergeant, Consolidated Narcotics Unit, Police Department, City of Reno testified for A.B. 454. He reviewed Washoe County’s growing meth lab problem. Between January 19, 1999 and March 19, 1999 his team had busted 14 meth labs. Since California State statute became tougher on meth labs, a number of meth manufacturers had moved to Nevada. He gave the example of a meth lab being located in a $250,000 house in a residential neighborhood. The operator of the meth lab was arrested six months previously for manufacturing meth in the same house. There was a public safety problem with three labs exploding in the past several months.

Chairman Anderson asked about page 7 lines 34 to 39. "If at the time that a peace officer seizes from a defendant a substance believed to be a controlled substance, dangerous drug or immediate precursor, the peace officer discovers any material or substance that he reasonably believes is hazardous waste, the peace officer may appropriately dispose of the material or substance without securing the permission of a court." He asked if the disposal would be enough evidence to convict a suspect. Mr. Bunn responded current practice was the sampling of all evidence before disposal would take place. The samples were maintained in a safe environment where the defense may have an independent lab test the sample for confirmation. The evidence was photographed with fingerprints being taken before the hazardous waste was processed.

Chairman Anderson asked about a lost sample and the problem of the hazardous waste being already processed. Mr. Bunn responded a team of people with a multi-level response.

Chairman Anderson asked if legal language was needed to insure there would be no lost evidence. Ms. Lang responded she did not believe the suggested language was necessary. What was necessary was to insure the evidence was gathered in a constitutional manner.

Robert Sack, Environmental Supervisor, Washoe County District Health Department testified for A.B. 454. He stated he worked closely with the Drug Enforcement Agency (DEA) in cleaning up meth labs. He informed the committee the storage of the entire evidence was not possible because the original meth lab containers were unstable. The issue of gathering samples was a safety issue because of the unstable containers.

Chairman Anderson asked about page 7 lines 38 and 39 and the disposal of the hazardous materials and the mixing of hazardous materials. Mr. Sack stated the samples were representative and defensible in court. At the same time the materials were gathered, they were characterized after being identified to ensure a safe disposition of the hazardous materials. Mr. Sack felt the laws were appropriate.

Chairman Anderson closed the hearing on A.B. 454.

ASSEMBLYMAN CARPENTER MOVED TO DO PASS A.B. 454 RAISING TO A CLASS B FELONY WITH 3 YEARS.

ASSEMBLYMAN GUSTAVSON SECONDED THE MOTION.

THE MOTION CARRIED UNANIMOUSLY.

Chairman Anderson assigned the bill to Mr. Perkins, the sponsor of the bill with Mr. Nolan as a backup to present the bill to the Nevada State Assembly.

There being no further business to come before the committee, Chairman Anderson adjourned the meeting at 10:38 a.m.

RESPECTFULLY SUBMITTED:

Ken Beaton,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: