The SubCommittee on Transportation was called to order at 7:13 a.m., on Thursday, May 13, 1999. Chairman Tom Collins presided in Room 3142 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. Tom Collins, Chairman

Mrs. Barbara Cegavske

Mr. Jerry Claborn

Mr. Don Gustavson

GUEST LEGISLATORS PRESENT:

Senator William O’Donnell, Clark County District 5

STAFF MEMBERS PRESENT:

OTHERS PRESENT:

Steven Tackes, former Chairman and Counsel,

Carson City Airport Authority

Ken Dietrick, Employee, Artistic Fence Company

Mr. Collins opened the hearing on S.B. 302.

Ray Bacon, representing Nevada Manufacturers Association, presented the subcommittee with a proposed amendment for S.B. 302 (Exhibit C). He explained the amendment would actually replace the existing bill. He explained the amendment to the committee. Section 1, subsection 1, defined the gates referred to in the bill as electronically powered vehicular gates. All gates installed after March 1, 2000, would be required to conform to Underwriters Laboratories (UL) 325 standards. The UL 325 standards were a voluntary standard, but the legislation would make the standards mandatory in Nevada. Subsection 2 stated the industry would notify owners of potential problems with gates installed after December 31, 1992. The manufacturers felt retroactivity raised serious constitutional questions, but was willing to inform owners who had installed gates within the previous 7 years. The 7 year timeline was chosen because it was consistent with Internal Revenue Service bookkeeping timelines, beyond the 7 years it would be extremely difficult to locate the gates. The notification would consist of manufacturers, distributors, and installation companies notifying the owners of the UL 325 standards and the reasons their gates should be upgraded. He suggested the private sector companies which had the slide gates on their properties would upgrade the gates; however, he had serious concerns if gates located on public property would be upgraded because of liability limitations.

Mr. Collins contemplated if the Occupational Safety and Health Administration (OSHA) would require the upgrades on the gates during their inspections. Mr. Bacon mentioned OSHA typically did not inspect government installations.

Mr. Collins asked if there was an exemption for government installations. Mr. Bacon indicated certain government installations were exempt from OSHA inspections.

Mr. Bacon continued on to subsection 3 which required those who serviced gates to inform the owner of the gate of the new standards during routine service calls. The section also allowed the service companies to decline future service and red tag the gate if an upgrade was not made. Subsection 4 allowed the owners of the gate to install an audible alarm as an upgrade. Included in the section were the requirements of the alarm. Owners of older gates would not be required to conform with dual safety controls as listed in UL 325 standards but instead simply have an audible alarm installed on their gate. Section 2 of the amendment would require the notification process be completed by May 1, 2001, which gave everyone 14 months to search for as many gates as possible.

Assemblywoman Cegavske inquired if public works departments would be the public agency responsible for upgrading the public sector gates since they were generally responsible for new construction projects. Mr. Bacon commented most local governments had a centralized maintenance operation; however, they sometimes contracted out maintenance of specific items to the companies who installed the product. A similar problem occurred on the state level as well.

Mrs. Cegavske indicated as long as the industry agreed to inform residential and private sector owners, the committee could inform governmental entities of the new standards. She wondered if someone voluntarily disconnected the alarm or chose not to upgrade the gate would the liability then fall to the individual or remain on the manufacturer. Mr. Bacon remarked standard court procedure had found the manufacturer of the controller and the gate not to be liable if the owner of the gate had made or directed any modification to any part of the gate.

Mrs. Cegavske asked if the industry felt there should be language included in the legislation which reflected court decisions. Mr. Bacon remarked the language should not be included.

Mrs. Cegavske questioned if the state had been held liable if an accident occurred on state property. Mr. Bacon relayed in the case of Mary O’Donnell Carson City was held liable because they had authorized the modification of the gate in that particular case. Liability was limited for state and public entities to $50,000 so there was no large incentive to upgrade the gates.

Assemblyman Gustavson noted the amendment applied to only vehicular gates and wondered why pedestrian gates were not included. Mr. Bacon revealed the original bill, as well as UL 325 standards, only dealt with vehicular gates. Most automatic pedestrian gates were used in prisons where audible alarms were not required.

Mr. Collins commented most automatic doors were currently compliant with the Americans with Disabilities Act (ADA).

Mrs. Cegavske recalled during the original hearing on the bill Deidre Hammon with Citizen’s Alliance for Disability Rights testified regarding ADA standards. She pondered if the amendment complied with those standards. Mr. Bacon disclosed to the committee the UL 325 standards were completely compliant with ADA requirements. The one area which had caused him some concern was the section requiring only an audible alarm which was not fully compliant with federal law.

Mrs. Cegavske returned to the question of liability. She questioned since the bill would not require full ADA standards on gates installed prior to March 1, 2000, would the manufacturer be held liable for any accidents. She also asked if gate manufacturers were like most industries which stated on the warranties if the owner altered the product in anyway not recommended by the manufacturer, the manufacturer was not liable. Mr. Bacon indicated warranties were void if the owner made certain changes to the product. If the owner upgraded the gate to include only the audible alarm the delay between the alarm and movement of the gate was substantial enough that there should not be any accidents. He was unclear who would be held liable in one of the rare cases of an injury.

Mrs. Cegavske commented the government could not legislate everything.

Mr. Collins relayed a personal experience from working at a power company. The company would purchase line trucks for high lift equipment which met manufacturer requirements on the date the vehicle was manufactured. If the truck was 20 years old, it had to meet 20-year-old safety requirements. The example was similar to the issue with which the committee was currently dealing. He was unclear how the state could tell someone who purchased a gate 20 years ago the gate had to be upgraded to meet current standards, and if the individual did not upgrade the gate they would be held liable for any accidents which occurred. It was much like cars made prior to seatbelts and requiring them to be installed since they were found to be safe 20 years later.

Donn Simons, general manager, Artistic Fence Company, informed the committee the company had three office locations in Carson City, Reno, and Winnemucca. His father started the company 35 years ago on a $1,000 family loan. He testified the current bill was extremely onerous toward small businesses. They did not have money set aside to comply with the provisions outlined in the bill, and would have no choice but to close their doors if the legislation passed as written. Retroactivity was a dangerous precedent to set since it would eventually affect all industries. A similar situation was approximately 20 years ago the electrical industry introduced ground fault current interrupters (GFCI) which cut the electrical current within a fraction of a second to electrical outlets if it detected a change in amperage. Electrical contractors were not required to retroactively install the device in homes constructed prior to the introduction of GFCI even though the devices saved lives. As an installation company they were pleased with the UL 325 standards but did not feel they should be made retroactive.

Mr. Collins suggested the testimony indicated they were against the full retroactivity, as the bill required. He wondered if they were also against the 7 year retroactivity in the proposed amendments. Mr. Simons expressed they were against both since any retroactivity would require them to search through their records. The fencing business was not an immensely profitable one and researching records would impact them since employees would have to be pulled off daily projects.

Mr. Collins remarked he owned a small business himself which worked on 317 jobs in 1998 for around 250 different customers. Every one of those jobs was on a computer and filed with the customers’ name, address, and phone number easily accessible. To search through 7 years of files would cost approximately 1 week’s worth of labor and $0.33 for postage per letter. If any of the notices were returned they should be entered to show the company did make a sincere attempt to notify the customer. The committee was not trying to put anyone out of business with the legislation. The companies had until May 2001 to complete the notification process, so 1 week in 2 years was not as onerous as other laws with which businesses were required to comply.

Mrs. Cegavske wondered if the amendment present by Mr. Bacon could be modified to help out small businesses. Mr. Simons noted section 1, subsection 2, allowed the small businesses some amount of leeway since it stated, "known existing power operated vehicular access horizontal slide gates." The problem was most installation companies did not always state the exact job on the invoice, but instead referred to a proposal which was written for each specific job. He was concerned they would not be able to identify every gate they had installed over the past 7 years. He was willing to make an attempt but did not want legislation passed with which he had no way of complying.

Mrs. Cegavske revealed she knew they would make a serious attempt to comply with the law. She had owned a small business knew it was difficult to comply when new legislation was introduced. She pondered if there would be a way to change the proposed amendment to make the legislation less onerous on small businesses. Mr. Simons requested a few minutes to review the amendment since they had just received copies.

Mr. Collins mentioned if the company completed various jobs for a single contractor the company should only be required to notify the contractor regarding the change in standards instead of sending notices to all job locations.

Joanne Dietrick, employee, Artistic Fence Company, explained the company had not converted their files to computer and posted invoices by hand. Their yearly business was approximately $6 million with electric gates amounting to around 4 percent. Detailed outlines of installations were submitted in proposals to customers and the invoices referenced the proposals for billing purposes. They currently had two accounts for service contracts; however, they did respond to calls for service. To begin the notification process they could begin collecting names and addresses from the service calls, but to go through their actual records would entail a large amount of work since the records were stored in boxes in a shed.

Mrs. Dietrick commented to retrofit a gate with a safety device they would have to first determine what would be required then install the device, so at least two trips would be required which became costly since they had installed gates throughout northern Nevada. She mentioned she had discussed the legislation with a client in Carson City who stated he would not want an audible alarm on his gate. She told him the company would have to red tag and turn off the gate. He indicated he would simply remove the tag and turn the power back on himself or find someone else to work on his gate. She felt having someone with little or no knowledge of electronic gates conduct service on the gates created a greater hazard.

Mr. Collins suggested when new products were released or new regulations implemented there was some kind of public notification sent to distributors of said products. The UL 325 standards were not specific to Nevada and would be offered nationwide so the installation companies should receive information to distribute to their customers informing them of the new standards. If customers chose to ignore the notices and maintain the gate themselves the warranty was void and the manufacturer would not be liable. Mr. Simons remarked they had no problem notifying customers of new products and standards when they first purchased a gate. The problem they had with the legislation was they would be required to notify customers who had already had the product.

Mr. Collins contended the businesses would be allowed 14 months to research their files and attempt to notify the customer of the new standards.

Mrs. Cegavske remarked legislators had individuals contact them regarding personal incidents which could potentially affect other Nevada residents, which triggered legislation. Their job was to prevent other incidents from occurring and more people from getting injured. The small businesses would essentially be doing the same thing by notifying their customers. She was an advocate of small businesses and did not want to adversely affect them. All parties would have to work together to assure other accidents did not occur because of gate malfunctions. If the customer chose to disregard the notice there was little that could be done. She wondered if a standard form letter regarding the new standards would be sent to the installation companies or if they would be required to generate their own letters. Mr. Simons communicated he had spoken with a few of the manufacturers regarding the issue. They had indicated a packet for installation companies was being developed regarding the new UL 325 standards which would include an industry standard letter for customers. He informed the committee Underwriters Laboratories consisted of 13 to 14 of the largest gate operator manufacturers. If the committee chose to implement the UL 325 standard, several smaller manufacturers could be put out of business since they were not part of the UL conglomerate.

Mr. Collins observed there was a potential for the installation companies to turn the process around and generate additional revenue from the new standards. Businesses could inform their customers of the new law then offer to send someone out to inspect the gate then provide an estimate of how much it would cost for both the minimal upgrade or the full upgrade.

Jeanne Simons, employee, Artistic Fence Company, testified in opposition to the retroactivity placed in the bill. She wondered where in the bill was the guarantee the manufacturers would comply and assist the installation companies with the notification process. There was no protection in the bill for the small businesses involved in the industry. She informed the committee Stanley Corporation was the company which manufactured the operator at the airport in place at the time of Mrs. O’Donnell’s accident and was no longer in business. They sold the portion of the company for $5 million. She was also concerned with customers working on their own gates because the service industry had red tagged them.

Mrs. Cegavske hypothesized regarding the retroactive portion of the bill, could the committee modify the language to make it less onerous on the small businesses who would be notifying their customers by placing reasonable efforts or attempts. Mrs. Simons remarked she had a problem with the retroactive portion of the bill and did not want to agree to anything which was retroactive.

Mr. Collins communicated the justification for the 7-year retroactivity was twofold. The first reason was 7 years was consistent with bookkeeping practices to comply with various federal regulations. The second was to please the sponsor of the bill, and he would have to agree to its removal.

Mrs. Cegavske mentioned if the language was changed to indicate a reasonable attempt should be made for those gates installed since December 31, 1992, the bill would not be as onerous on small businesses since they would have 14 months to comply.

Mr. Collins explained reasonable standards were consistently used throughout Nevada law. The only thing the small businesses would be required to do was send a letter to the last address they had for the owners notifying them of the new standards. The company would want to keep records of who they sent notices to so if a problem arose in the future, they would be covered. If the letter was returned or the customer ignored the notice the company would be able to prove they made a reasonable attempt. The committee was not trying to tell the small businesses they had to find every gate they installed since they opened their doors, only make a reasonable effort to inform their customers of the new standards. Mr. Simons noted they had a standard 1-year warranty contract with all new customers and would certainly inform all of them of the new standards. A reasonable effort was less onerous than a mandate and could be done.

Steven Tackes, former chairman and council, Carson City Airport Authority, presented the committee with information regarding the accident involving Mary O’Donnell (Exhibit D). He was before the committee to explain the incidents which contributed to the accident and assure the committee such an accident could no longer occur at the airport.

Mr. Tackes explained he had recently been appointed chairman of the airport authority when the accident occurred. Mrs. O’Donnell had stuck her arm through the fence to push the activator button to open the fence. The clutch on the motor had been tightened down since the airport had past problems with teenagers pulling the gate open to use the runway as a drag strip. The button was installed by the maintenance/ security person to allow those inside the gate the opportunity to let themselves out and require those outside the gate to contact someone prior to entering the airstrip. It was thought someone could not reach the button if they were outside the gate. The airport did take full responsibility for the accident and had since changed the operation of the gate. The airport currently had a key card reader system to open all four gates.

Mr. Tackes remarked the airport had not taken an official position on the legislation. He suggested the idea of an audible alarm on the gates was beneficial but not always appropriate such as in residential areas. There was one gate at the airport which faced a mobile home park where many retired persons lived. The airport was sensitive to sound issues and felt an alarm would only create animosity with their neighbors.

Mr. Collins mentioned the audible alarm was the minimum upgrade to the fence. The UL 325 standards offered other options which could be used.

Senator Bill O’Donnell, Clark County District 5, commented on section 1, subsection 2, of the proposed amendment. He thought all gates manufactured after December 31, 1992, had been installed with a tech pack which would prevent injury from the gates, so the amendment did not do anything that did not currently exist. The reason he requested the legislation was because the gate manufacturers did not know who owned the gates and they should. It was similar to automobile manufacturers knowing who owned their automobiles so recalls could be sent. He noted the language which dealt with the presumption of negligence had been removed and was not pleased about that.

Mrs. Cegavske informed Senator O’Donnell the committee had been discussing the notification process as outlined in section 1, subsection 2. The representatives from Artistic Fence Company had mentioned a reasonable attempt effort for notification was language they could work with since locating every gate they had installed would be extremely onerous. She wondered how he felt on the issue and mentioned there should be a way to separate the small installation companies from the manufacturers. Senator O’Donnell expressed the responsibility for notification should be placed on the manufacturers and not the installation companies. The manufacturer was the party liable for the gates, not the companies which installed and serviced the gates. He indicated the portion of the gate which required the upgrade was the operator. The operator needed the alarm and the delay mechanism and not the actual sliding portion of the gate.

Mrs. Cegavske questioned if language should be added to protect the small businesses which sold and installed the operators for the manufacturers. Senator O’Donnell communicated the intention was to require the manufacturer to notify the owners of the operators that there were potential dangers associated with the operators, and they should be upgraded to prevent injury.

Mr. Collins inquired if the smaller manufacturers custom build their own operators with separate chains and motors versus using the kits available through Underwriters Laboratories. Mr. Simons claimed since joining Underwriters Laboratories was voluntary both situations occurred. The committee could require UL 325 standards in Nevada, but there was no national legislation requiring the standards to be met which would narrow the number of accepted manufacturers in Nevada since Underwriters Laboratories consisted of 13 to 14 companies.

Mr. Collins commented the bill would require UL 325 standards be met in Nevada. Mr. Simons remarked another aspect for the committee to consider was since gate operators were expensive some people would rig a garage door opener to operate their sliding gates. Safety was compromised even more if that occurred.

Mr. Collins informed Mr. Simons if the legislation passed and his company complied with the UL 325 standards he would not be affected. He observed a potentially unfair business environment could be created since only the large manufacturers complied with UL 325 standards. Mr. Simons revealed they only dealt with the manufacturers involved with underwriters Laboratories, but other businesses could be affected.

Mr. Collins mentioned the other issue of the bill was the retroactivity. The committee had not been told the gates manufactured after 1992 already had tech packs installed to prevent injury. Mr. Simons disclosed the only company that ever provided a tech pack for their operators was the Stanley Corporation. The company which bought them continued to manufacture the tech packs as an audible warning device. Other manufacturers did not offer any kind of retrofit kit, but would probably develop them if there was a demand.

Senator O’Donnell suggested other manufacturers used a delay mechanism on the gates much like those used on garage door openers so the door would stop if obstructed. He did not have a problem amending the bill to add delay system or audible alarm.

Ken Dietrick, employee, Artistic Fence Company, informed the committee the operator at the airport was the Stanley ASJH Slide Gate Operator and had an adjustable clutch built into it. When the operators were properly adjusted an individual could stop the motion of the gate with one hand. The tech pack offered by Stanley had included an audible warning with a 3-second delay before the gate opened. The newer operators included an overload resistance feature to monitor the load of the motor and stop the motor if there was an obstruction.

Senator O’Donnell expressed the problem was with the older gates that did not have the current technology. Those were the gates about which he was concerned and about which people needed to know. Since the older gates were prior to 1992 the legislation should reflect that and require the manufacturer to find and upgrade the gates or be negligent for not fixing them.

Mr. Collins related the problem with setting the retroactivity prior to 1992 was the way the companies maintained their records. He felt there had to be another way to notify the public about the UL 325 standards such as warranty cards if they were returned.

Mrs. Cegavske indicated the manufacturers should be the party responsible for notification. Senator O’Donnell agreed and felt the manufacturers should pay the distributors and installers to find the gates and notify the owners if they did not want to do it themselves.

Mr. Collins wondered how the committee should deal with the custom built operators. Senator O’Donnell expressed if the garage door opener type of system was used the delay should be built in. Mr. Dietrick revealed most gate operators did not contain a delay mechanism. The Stanley Tech Pack was the only type of motor which incorporated a delay.

Senator O’Donnell inquired if the resistance mechanism mentioned would stop the gate. Mr. Dietrick stated the resistance motors did stop the gate, but was adjustable to the weight of the gate itself since every gate was different.

Senator O’Donnell commented he did not have a problem incorporating the resistance mechanism into the bill. The main issue was to assure public safety. If custom motors contained a resistance mechanism, they could be exempt from the bill by adding language requiring an audible alarm, delay mechanism, or overload device.

Mr. Collins mentioned the UL 325 standards would do that. The question then became how to apply the UL 325 standards retroactively. Mr. Dietrick felt the standards could not be applied retroactively.

Senator O’Donnell indicated the negligence per se was the method he had placed in the bill. If the manufacturer did not identify and upgrade the gates, they would be negligent. Mrs. Simons questioned how the manufacturers would know where all the gates were located.

Mr. Collins remarked the manufacturer would know of the operators from warranty cards. Mrs. Simons asked how they would know where the gates were if warranty cards were never returned. Mr. Dietrick explained warranty cards were given to the customer after installation was completed. It was the responsibility of the customer to send the cards to the manufacturer.

Mrs. Cegavske agreed the customer had the responsibility to send the warranty cards, but the manufacturers were responsible for the safety of the gates if there was a defect. If a warranty card was sent in, it was the responsibility of the manufacturer to notify the customer of the new standards. Stanley would still be responsible for notification since the company which bought them out would still have the records. The primary responsibility for notification was taken off the small businesses and placed on the manufacturers.

Mr. Collins remarked the committee would have to amend the bill to create the desired affect everyone had been discussing. The language would read in the State of Nevada the responsibility for notification of the new standards was with the manufacturers. The installation companies did have some responsibility since they installed the gates, but the primary responsibility was with the manufacturers. He wondered if there was a way the state could assist with public notification through public service announcements.

Senator O’Donnell commented Artistic Fence Company and other small businesses throughout the state maintained most of the gates they had discussed. The attrition period on the gates was no more than 2 years before the clutch or chain required adjustment or the motor burnt out. When the service calls were made notification of the new standards could be given. If the customer chose not to upgrade the gates the service company could refuse future service on the gate. He felt the situation was similar to older ski bindings on which ski repair companies refused service since the bindings were no longer safe.

Mr. Collins indicated the proposed amendment presented by the Nevada Manufacturers Association (Exhibit C) had included the option of red tagging the gate and turning the power off. The issue with the red tagging became what happened if the customer worked on the gate themselves or found someone else to maintain it.

Mrs. Cegavske mentioned the responsibility would then be on the customer since they received the notice. She felt Mr. Simons had the best solution which was to notify the customers who purchased a gate within the past year since there was the 1 year warranty, then issue notices on all service calls. The small businesses wanted to comply with the regulations and offered a logical solution.

Senator O’Donnell declared if he was a manufacturer and the legislation passed, he would be on the phone to the distributors and installers asking for help in locating the gates. The small businesses should help only if the manufacturer agreed to pick up the cost.

Mrs. Simons inquired as to exactly what would the manufacturer be responsible. She wondered if the manufacturer would be responsible for notification and the cost of the upgrade. Senator O’Donnell indicated the manufacturer would be responsible for all costs involved.

Mrs. Simons expressed opposition to requiring the manufacturers to cover all costs. The intent of the bill appeared to be about safety, not litigation. To require manufacturers to pay for retrofitting products to make them safer set a dangerous precedent. It had not been done in other industries when advanced technology was introduced and a precedent should not be set within the gate industry.

Mrs. Cegavske stated her understanding of the legislation was to require the manufacturers to notify the owners that the gates there were new standards for gates and the owners should upgrade their gates, not pay for the upgrades.

Mr. Dietrick suggested the manufacturer might be willing to supply a tech pack if that was all that was required to upgrade the gates; however, they probably would not be willing to pay the service companies to install the packs.

Senator O’Donnell remarked the manufacturers would pay for installation since the liability would be on them. They would be more willing to pay a small business $200 to upgrade a gate than $1 million in a lawsuit.

Mr. Collins commented the proposed amendment would require the gates be upgraded by a certain date. The issue was notification and enforcement of retroactivity. He asked Senator O’Donnell if the issue of negligence came in, if the manufacturers did not upgrade the gates. Senator O’Donnell indicated the language should indicate the provision applied to gates installed prior to 1992, since the load bearing motors were introduced in 1992.

Mr. Collins noted the initial amendment (Exhibit C) had a completion date of May 2001 for gates installed after 1992, but the desire of the sponsor of the bill was to notify owners of gates installed prior to 1992. The committee had already heard testimony of the difficulty the small businesses would have in complying with that language; however, the responsibility was now on the manufacturer to comply or be negligent.

Assemblyman Claborn observed the testimony from Mr. Bacon seemed to indicate the manufacturers would have a similar problem as the small businesses with going back prior to 1992.

Mr. Collins communicated the sponsor of the bill had a desire to include the older gates. If the gates had to be serviced every couple of years then notification should not be quite the onerous problem they had once thought. Mr. Simons noted the amendment proposed by the manufacturers (Exhibit C) did include a provision for notification during service calls. It appeared to include all horizontal gate systems and not simply the ones everyone had been discussing.

Mr. Collins mentioned the provision solved the problem of notification. The issue then became did the bill need to specify a retroactive date since any qualified service company would issue notification on all gates they serviced. The provision seemed to require all contractors to comply with the standards so public and commercial facilities would be addressed. Homeowners would not be exempt for upgrading their gates, but were not required to have qualified gate service companies maintain their gates.

Mrs. Cegavske asked Senator O’Donnell if he had a problem changing the language to apply to electrical gates instead of mechanical gates. Senator O’Donnell indicated he did not have a problem with the change.

Mrs. Cegavske wondered if there were any other sections in the amendment submitted by the manufacturers (Exhibit C) Senator O’Donnell wanted to change. Senator O’Donnell remarked the minimum upgrades should be audible alarm or load resistance motor. If the load resistance motor would stop the gate there was no need for an alarm.

Mr. Claborn informed the committee his company in Las Vegas had a slide gate with a Stanley operator. When the button was pushed to open the gate an audible alarm was activated along with flashing lights. The gate would begin to move about 5 seconds after. The alarms should not be removed from the gates since it allowed people enough time to get out of the way before the gate opened.

Mr. Collins suggested the option for an audible alarm was in residential areas. Mr. Claborn felt there should still be an alarm in case someone was near the gate.

Senator O’Donnell indicated they were referring to two types of safety devices. One was the audible alarm while the other was the load resistance motor. If the gate stopped when it encountered resistance there was no need for the alarm. Mr. Claborn mentioned some of the gates operated with a chain and if something was caught in the chain there would still be the possibility of injury.

Elana Marton, committee policy analyst, explained the proposed amendments to the bill were to change mechanical to electrical in section 1, subsection 1(a). Section 1, subsection 1(b), would be changed to allow for an audible alarm or load resistant motor.

Mr. Simons commented the UL 325 standards contained other options than the alarm and load resistant motor. Complete compliance with both ADA and UL 325 standards would require more than the two options proposed.

Senator O’Donnell revealed the committee should establish minimum standards for the older gates. The intent was to make the older gates safer which the alarm or resistance mechanism would do. He did not feel all gates needed to fully comply with UL 325 standards.

Mrs. Cegavske pondered if the bill contain compliance with the UL 325 standards retroactively. Ms. Marton remarked the opinion appeared to be to set minimum standards on the older gates. The option the committee had for UL 325 was to make it a requirement once the standards were in full effect.

Mr. Claborn wondered if adding UL 325 would be overkill if they were requiring the alarm or resistance mechanism. Mr. Simons felt it was appropriate to require the minimum standard and then require UL 325 standards on all gates sold after a certain date. The smaller companies could comply with the new standards without obtaining the actual Underwriters Laboratory stamp.

Mrs. Cegavske suggested the subcommittee should take both options back to the full committee to make the final determination.

Mr. Collins asked if adding the requirement of UL 325 to the bill would create problems when the bill was returned to the Senate. Senator O’Donnell mentioned UL 325 required a variety of standards on gates which had nothing to do with the operator. For example UL 325 required a safety cage be placed over the rollers. Mr. Simons call attention to the fact that currently all gates with rollers were required to have a safety cage.

Senator O’Donnell contended the rollers might have caused some injuries, but the operator portion had killed. The intent was to get at the manufacturers of the operators since they knew there were problems with the devices. He did not want to require the actual gate builders to retrofit all gates with roller covers.

Mr. Collins noted the amendment would require older gates to be retrofitted with an alarm, delay, or load resistant mechanism. Any new gate would be required to fully comply with UL 325 standards after it became fully effective. Senator O’Donnell claimed future buyers would then be guaranteed there was a safety standard in place for the industry.

Ms. Marton explained the amendment would also state the manufacturer would be negligent if they did not comply with the minimum standards for retrofitting the gates or with UL 325 standards for future gates.

Senator O’Donnell indicated the minimum standards would only apply to gates installed prior to 1992.

Mr. Simons questioned how the manufacturers would know where all the gates were located. They had discussed earlier most records were only required to be maintained 7 years.

Senator O’Donnell remarked eventually all gates would be found since they required service.

Ms. Marton mentioned the manufacturers were not the party servicing the gates.

Mr. Collins suggested the committee take the language from the original amendment from the manufacturers (Exhibit C) which required notification be given on all service calls.

Senator O’Donnell announced any gate installed prior to 1992 was an old gate and probably needed to be either replaced or rebuilt. Gates installed after 1992 could be included in the bill, but be required to comply with UL 325 standards. The amendment should allow the service company the ability to red tag and decline service on any gate not in compliance with the legislation.

Mr. Simons asked if there should only be one standard set for all gates instead of creating two or three standards depending on when the gate was installed.

Senator O’Donnell asserted the gates installed prior to 1992 did not have the load resistant mechanism built in, but contained the clutch style motors. The problem was the clutches were being tightened down to allow for no resistance, and that needed to be stopped. The resistance mechanism would stop the gate if there was an obstruction.

Mr. Collins remarked notification of the requirements could be given on every gate when a service call was made. The issue was the standard to which the gates would be held, would certain gates be required to be retrofitted with the minimum standards or the full UL 325 standards. Senator O’Donnell indicated there should be the exemption for gates installed prior to 1992. The manufacturers should be responsible for identifying and repairing the gates since they knew the gates were dangerous. The manufacturers knew in 1986 the gates were dangerous and notified the distributors of the problems, but did not require the distributors to notify the public.

Ms. Marton wondered if it would be easier to place the language in the original bill requiring minimum standards on gates installed prior to 1992, then have any gate comply with the UL 325 standards once the standards had been fully incorporated. Instead of all gates complying with minimum standards until UL 325 was effective. Senator O’Donnell expressed he did not have a problem with that.

Mr. Collins remarked there appeared to be some confusion between reasonable notice the gates should be upgraded and requiring the upgrades to occur.

Ms. Marton mentioned if the bill was going to be retroactive, all gates should be included in the bill instead of creating a distinction with those prior to 1992. Senator O’Donnell stated if prior to 1992 was removed the language should indicate load resistant mechanisms were included in the minimum options. The gates installed after 1992 already included the mechanism and would be exempt. The language should take care of the problem.

Ms. Marton commented there was still a problem connecting the notification procedure and requiring the upgrades to occur. The discussion had indicated the manufacturers were to be held liable for the upgrades, but the installation companies were the party required to notify the gate owners of the upgrades. Senator O’Donnell stated any company servicing a gate should be required to notify the owner of the gate that the gate was not compliant with the law and created a safety hazard.

Mr. Collins asked if Senator O’Donnell believe the legislature would pass a bill which required every gate owner in Nevada to retrofit their gates. Senator O’Donnell thought the entire body would not pass such a bill.

Mr. Collins relayed if retroactivity would not be passed there was no point putting it in the bill. Senator O’Donnell suggested the bill would only require the small businesses to notify the owners, then red tag the gate if it was not upgraded. It should be up to the gate owner to pay for the upgrades.

Mr. Collins thought the intent was to require the manufacturers to cover all cost of upgrading the gates. Senator O’Donnell commented the manufacturers of the operators should be required to pay for the minimum upgrades since it was the operators that had killed people. The manufacturers were the ones who wanted the owners to pay for the upgrades.

Mr. Simons declared he knew of no instance of any operator being defective. The injuries to people had occurred with gates that had been altered in some fashion after installation and against manufacturer recommendations. There were ways to improve the gates and make them safer, which was the intention of the UL 325 standards.

Senator O’Donnell contended if the devices were not defective why were defect announcements sent to the distributors. He wondered if the gates were safe, why was a higher standard developed.

Mr. Dietrick observed the defect announcements were in fact safety bulletins sent to distributors and installers to inform them of potential problems that should be corrected.

Mr. Collins indicated the safety bulletins had been part of an ominous Congressional bill which required notices sent if anything could be found to present a potential danger. He summarized the amendments as changing mechanical to electrical, requiring a reasonable effort notification process which included distributing information at service calls, minimum standards, and compliance with UL 325 standards once fully effective.

ASSEMBLYWOMAN CEGAVSKE MOVED TO AMEND AND DO PASS S.B. 302 WITH THE AMENDMENTS MENTIONED BY ASSEMBLYMAN COLLINS.

ASSEMBLYMAN CLABORN SECONDED THE MOTION.

THE MOTION PASSED UNANIMOUSLY.

Mr. Collins adjourned the meeting at 9:17 a.m.

RESPECTFULLY SUBMITTED:

Jennifer Batchelder,

Committee Secretary

APPROVED BY:

Assemblyman Tom Collins, Chairman

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