The Committee on Judiciary was called to order at 8:10 a.m., on Wednesday, May 12, 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

Mrs. Ellen Koivisto

Ms. Sheila Leslie

Ms. Kathy McClain

Mr. Dennis Nolan

Ms. Genie Ohrenschall

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Roll was called and a quorum was present. Chairman Anderson indicated the committee would conduct a work session on three bills. The work session document from which the committee would be working was attached as Exhibit C.

Don Williams, Committee Policy Analyst, stated as staff of the Legislative Counsel Bureau (LCB) he neither supported nor opposed any of the measures before the committee. Reading from page 1 of Exhibit C, he reminded the committee of the background of S.B. 152 and the previous testimony heard by the committee. He pointed out an amendment had been proposed by the Manager of the forensic laboratory. The amendment was attached as Exhibit D.

Chairman Anderson explained the amendment listed all the various substances that would fall under the statute. Currently, those substances were referenced in the beginning of a few statutes but not every related statute. The amendment would eliminate any ambiguity of the intent of the legislation. Chairman Anderson inquired about the impact the amendment would have in regard to the treatment of narcotics or drug addiction.

Risa Lang, Committee Counsel, clarified those issues were in existing law. The proposed amendment was an attempt to "bring in" all the sections that would be affected.

Assemblyman Carpenter agreed that adding the word "breath" to the various sections would clarify the law. He expressed support for the amendment to S.B. 152.

Chairman Anderson asked Ms. Koivisto to present S.B. 152 on the assembly floor.

Mr. Williams proceeded to review the previous discussion which had occurred in regard to S.B. 481 (see page 2 of Exhibit C). He pointed out Gemma Green, representing the Nevada District Attorney’s Association, had submitted a proposed amendment to resolve some of the concerns raised at the hearing. The amendment was attached as Exhibit E.

Chairman Anderson asked Gemma Green to come forward in order to answer a few questions he had. He questioned if her amendment addressed those concerns raised by Fred Hillerby, representing Associated Pathologists Laboratory, and where in the amendment they could be found.

Ms. Green replied Mr. Hillerby’s concerns had been incorporated into the amended bill starting on page 19 of Exhibit E. She pointed out cocaine metabolite, heroine metabolite, morphine, 6-monoacetyl morphine, and marihuana metabolite had been added. They were added because Mr. Hillerby had indicated those were the detectable amounts that could be found in the blood. She had stricken mecloqualone and methaqualone from the list because Mr. Hillerby had indicated there were no federal standards to detect them in the blood.

Responding to Chairman Anderson, Ms. Green explained when a lab tested the blood, they would be looking for the metabolite. "There is no such thing as finding heroine in the blood. You are finding those two types of metabolites in the blood."

Assemblywoman Ohrenschall asked what was phencyclidine. Ms. Green explained it was PCP.

Assemblywoman Angle asked for clarification in regard to the exemption for driving under the influence of prescription drugs. She did not agree with the exemption, noting physicians advised people not to drive when taking the medication.

Ms. Green commented there was concern about people driving under the influence of a prescription drug. She noted if you were driving while on prescription drugs and it was made clear you should not be, it would be considered illegal. The exemption applied to the situation where an individual took the medication the night before and then did not drive, but the next day some trace could still be found in his system.

Assemblywoman Buckley asked if amphetamines were legal. She made reference to diet pills. Ms. Green opined some diet pills were amphetamines but would probably not show up as a detectable level in the blood.

Assemblyman Nolan explained diet pills were a form of ephedrine (a subtle form of adrenaline) and they worked by increasing your metabolic rate. Mr. Nolan opined diet pills did not have the same metabolite.

Ms. Buckley further inquired if diet pills would show up the same in the blood or if they would show up as a different substance. Mr. Nolan reiterated they would show up as a different substance because ephedrine was actually a naturally occurring substance the body produced.

Ben Graham, representing the Nevada District Attorney’s Association, came forward to explain federal guidelines were used in drafting the amendment and when no federal guideline existed, guidelines from within the laboratory community were used. The items listed on pages 20 and 21 of Exhibit E were levels which indicated recent usage and would be detectable in the blood or urine. The levels used would prevent environmental contact and usage from a long time ago from being detected.

Suzanne Herman, from the Washoe County Sheriff’s Crime Laboratory, agreed with Mr. Nolan’s comments about diet pills.

Ms. Angle inquired what "chemical" and "organic solvents" would be. Ms. Herman explained there were compounds that individuals could inhale such as "woofers", paint fumes, and glue which would render them incapable of safely driving a car. Adding the language covered chemicals people were known to use.

Referring to page 20, lines 19 to 22, of Exhibit E, Ms. Green told the committee a definition of "detectable substance" was added to the bill. She reiterated it was restricted to blood and urine to avoid environmental exposure that could possibly be found in another bodily substance such as hair. That was the reason "bodily substance" was deleted throughout the bill. For each substance on the list, the detectable amount, if the urine or blood was tested, was identified. To address a concern raised by Senator Porter, Ms. Green explained the existing list of drugs by their scientific name on page 34 was struck in its entirety and the identical list found on page 19 was substituted. He explained Senator Porter wanted someone who was reading the statute to be able to determine what substance was being referenced. She pointed out the amendment on page 38. She stated a definition of "prohibited substance" was added as well as the addition of a reference to section 31. The last amendment was on page 39 and it addressed operating a boat. The same requirements that applied to driving a motor vehicle would not apply to operating a boat.

Chairman Anderson reminded the committee the bill would have to be heard by the committee on ways and means. He opined driving under the influence of alcohol had been vigorously addressed whereas driving under the influence of drugs had not received the same scrutiny. He hoped the committee on ways and means saw the importance of S.B. 481.

Assemblyman Manendo inquired if the bill had been heard by the Senate Committee on Finance. Chairman Anderson said it had not.

Chairman Anderson opened the hearing on Senate Bill 421.

Mr. Williams reviewed the previous testimony given in regard to S.B. 421 (see page 3 of Exhibit C). He pointed out Sam McMullen, representing the Retail Association of Nevada, had submitted a proposed amendment to resolve some of the concerns raised by the committee at the hearing. The amendment was attached as Exhibit F.

Chairman Anderson asked Mr. McMullen to come forward in order to explain the proposed amendment. He noted several members of the committee had found the language of the bill to be somewhat ambiguous, particularly in regard to what percentage of the building would constitute a remodel. He commented on his desire to see that percentage be 10 to 15 percent of the store. He recognized the percentage included in the amendment was 25 percent (see section 1, subsection 3 of Exhibit F). He pondered if that would be acceptable to the committee. He commented he would still "hold out" for a lower percentage even though he recognized 25 percent would create something of a hardship for Mr. McMullen’s clients.

Mr. McMullen admitted originally, it was hoped a substantial remodel of 50 percent of the public area would be adequate but after discussions with the Chair, he learned it would not be adequate. Mr. McMullen explained the industry had been informed of the committee’s strong desire to address smoking in existing stores. He noted the 10-year as well as the 50 percent requirements would be a stretch for the industry. He explained section 1 had been completely rewritten rather than "patchworked" into Nevada Revised Statutes (NRS) 202.2491 which he believed would satisfy some of the committee members’ questions about the past language. He believed the amendment created a clear obligation of the stores, if they remodeled, to add the ventilation which would substantially remove the smoke.

Chairman Anderson expressed hope that the amendment would send a clear message to the storeowners that a large segment of the public had put up with smoking in those buildings for as long as they could. He opined there would most probably be a continuing movement to eliminate smoking in grocery stores entirely.

Responding to Ms. Buckley’s request, Mr. McMullen reviewed each section of the amendment (Exhibit F).

Ms. Lang pointed out with the existing stores, the requirement was only that they comply with the removal of smoke from the area rather than the creation of a wall.

Ms. Buckley questioned, "In 2010, they still do not have to put up walls?"

Mr. McMullen explained the main issues addressed were ventilation and smoking. In regard to the walls, they were not as critical to the removal of smoke or the issue of ambient smoke as people were led to believe. He stated more importantly, it was having adequate ventilation to pull the smoke up and out of the store. Mr. McMullen indicated another important point to remember was the Nevada Gaming Commission had an ongoing policy of requiring stores, new and existing, to alcove those areas if they were going to reconfigure them.

Ms. Buckley stated she was "one of those people who do believe that enclosing something will help take the smoke out." She believed not requiring alcoves at that point was taking a very weak position. She declared, "I don’t see why we allow smoking in grocery stores period." She acknowledged the difficulty to do that now and commented "at least, this was something."

Assemblywoman Leslie asked what "substantially" meant and who would measure whether the smoke had been "substantially" removed. Ms. Lang replied the term was not defined and she was not certain how or who would make that determination. She said if someone was to complain, it would be left to the courts to decide.

Ms. Leslie further asked who would be enforcing the law. She noted when she received complaints from constituents, she did not know to whom refer them. Ms. Lang drew attention to NRS 202.2492. It said violation of the section was a misdemeanor and the district health officer or a person appointed by the state’s health officer would be responsible for serving and signing the written citations.

Responding to Ms. Leslie’s earlier question, Mr. McMullen explained "substantially removed" would also be subject to ventilation review in the context of a permit. He asserted there was probably no way to remove 100 percent, but he believed it had to be a substantial or high standard. He explained if you had an oversized ventilation unit for those areas and more air was being pulled out of the area then the issue of ambient smoke traveling by diffusion or osmosis should not exist anymore. It should be all sucked out.

Ms. Leslie referred to the provision which would allow the health department to prohibit smoking in the store altogether if the store had remodeled and the smoke was found not to have been substantially removed. She expressed her support for that movement.

Chairman Anderson pointed out there was also the opportunity for civil penalties under NRS 202.24925.

Responding to comments made by Ms. Leslie, Mr. McMullen stated he had no problem with her referring people with complaints to the retail association and making sure they did something about it. "There is a spirit in this law in additional to the legal that we are going to try and live up to as well."

Assemblywoman Angle expressed her desire to see a room with a door, such as in airports, which would certainly remove the smoke from the public areas. She also expressed concern with stores possibly deciding to remodel only 20 percent in order not to have to meet the ventilation requirement. She opined that was a definite loophole.

Mr. McMullen explained the theory behind the 25 percent requirement was it would be a substantial enough remodel for the store to actually capitalize the dollars necessary to ventilate. The real desire was to address issues relating to ventilation, which was as serious as reconfiguring for alcoves. It would be a much lesser cost. He admitted the law had a standard in it, but hopefully with the heightened awareness and the perception that the stores would have to do it at some point, they would choose to just "get it done."

Chairman Anderson, repeating Ms. Buckley’s question, inquired "Why don’t we just say no you can’t smoke in a grocery store and be done with it?"

Ms. Buckley agreed with the Chair’s comments. She noted the fear raised when the airlines prohibited smoking. The industry believed that would be fatal to their business and yet it did not come true. She stated she did not want to be hard on the retailers or the slot route operators but noted there was "a balancing of rights." She further stated, "When you are talking about food, fresh produce, and all the folks that have to use a grocery store, I think the balance clearly tips in favor of banning it altogether."

Mr. McMullen announced that the retail association brought forth S.B. 421. They proposed it in order to try and do something to resolve a problem not only for customers but also as a matter of state policy. He stated if the issue was to outlaw smoking altogether in grocery stores, specifically the gaming areas, the retail association would have to oppose the bill. He explained the reasoning was the high correlation between revenue stream for the store, gaming and smoking. They attempted to find a point where the stores would not have to experience economic dislocation but could solve the problem. He believed the amendment went even further than they had planned in order to address existing stores. S.B. 421 was an attempt by the retail association to come forward and respond to the issue. Mr. McMullen opined the bill was a "great policy statement" suggested by businesses that had a margin of 1 to 1.5 percent over their total revenues because it was a very volume oriented business. Their economics and how they were treated was very important to them, but they could deal with the concessions. If it did not go far enough, the issue could be revisited in 2 years.

Chairman Anderson asked if the margin was any greater or any lesser in Nevada than in any other state. Mr. McMullen acknowledged there were other states that did not have gaming in grocery stores and "they get by." But, the stores in Nevada were focusing on what was currently in place. There were established revenue streams and stores that had been planned and constructed on a certain understanding. Because of the gaming revenues, the stores were able to offer other services that did not have to be as profitable. "Each piece works together."

Chairman Anderson further asked if Nevada was the only state to allow smoking in grocery stores. Mr. McMullen apologized for not knowing the answer.

Mr. Manendo shared a story about his mother who worked in the slot department of a grocery store for 16 years. He offered those employees were also affected. He noted he would visit her and she would be engulfed by players smoking. He declared "Any step is a major step because I have seen this first hand." Any step would be beneficial to everybody. He expressed interest in being able to watch the progress made with the new stores. Mr. Manendo said if progress was not made, the legislature would not have to wait until 2010 to meet and decide to outlaw it entirely. He mentioned a new Lucky’s store was being built in his district, and he would be there to see whether or not it complied.

Assemblyman Claborn noted he was a nonsmoker. He had visited some grocery stores, and he believed they were trying to better the situation. He opined 10 years might be a little too long, but he would be checking in on the stores in his district.

Ms. Ohrenschall disclosed she was Vice President and Director of Sirani and Very Vegas, Inc., wholesale distributors of lighted novelties, flowers and tobacco products, and therefore, would not be voting on S.B. 421.

Assemblyman Gustavson stated his preference was to see smoking banned from grocery stores altogether but did not believe it was possible yet. He further stated the legislation was an important step in that direction though. He reiterated the possibility of addressing the issue again in the next 2 to 4 years existed if progress was not being made.

Chairman Anderson said he was concerned about sending a mixed message to the grocery store industry that "if they do it this way, we are not going to mess with it anymore and leave it alone." He was uncertain about seeing a great deal of progress made in the next 2 years.

Jim Avance, Legislative Representative for slot route operators, said the gaming control board did not license establishments for gaming until the structure was built. He noted they would follow the state laws.

David Soloman (also known as Ambassador Merlin) testified in support of the bill and offered an additional amendment for consideration. Mr. Soloman’s proposed amendment was attached as Exhibit G. He suggested prohibiting smoking 30 feet within the doorway of the store. He pointed out individuals could smoke just a couple inches from the door, being outside the store, and yet the smoke would be sucked directly into the store. Even if an individual was not just outside the door but a few feet away, he explained the smoke would be pulled in by the ventilation system. Mr. Soloman pointed out at the Western Nevada Community College, smoking was prohibited within 20 feet of the doorways.

Responding to the Chair, Ms. Leslie added the amendment would also include prohibiting smoking within 30 feet of the public entrance.

Chairman Anderson asked Ms. Lang if adding the language about smoking outside the doorway would cause difficulty in redrafting the amendment.

Ms. Lang opined it would not cause a problem but questioned if the restriction would apply to all stores.

Chairman Anderson clarified it would impact all grocery stores, existing and new.

Mr. Nolan agreed with the concept of the 30-foot restriction but expressed concern with its application.

Ms. Leslie reiterated she did not believe the votes to completely ban smoking in grocery stores existed but believed S.B. 421 was a step in the right direction. She was willing to accept the amendment in good faith rather than risk losing the bill altogether. In regard to the 30-foot restriction, she testified in favor of it and commented "We move the ashtrays and the smoking area."

Mr. McMullen inquired who would be responsible for the 30 foot "zone". He wondered if the grocery would be subject to a misdemeanor if an individual was caught smoking within the zone.

Ms. Koivisto said she smoked cigarettes and expressed concern with the 30 feet zone. She pondered if the "tobacco police" were going to come after her if she was to light a cigarette while getting in her car.

Chairman Anderson understood her concern. He suggested Ms. Leslie withdraw her previous motion in order to make a revised motion. "I do not think we are gaining any momentum here by leaving it in."

A roll call vote was called for.

There being no further business before the committee, Chairman Anderson adjourned the meeting at 9:50 a.m.

RESPECTFULLY SUBMITTED:

Jennifer Carnahan,

Committee Secretary

APPROVED BY:

Assemblyman Bernie Anderson, Chairman

DATE: