The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:30 a.m., on Monday, February 22, 1999, in Room 2149 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.

COMMITTEE MEMBERS PRESENT:

Senator Mark A. James, Chairman

Senator Jon C. Porter, Vice Chairman

Senator Mike McGinness

Senator Maurice Washington

Senator Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Dina Titus (Excused)

GUEST LEGISLATORS PRESENT:

Assemblyman Tom Collins, Clark County Assembly District No. 1

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Assemblyman Tom Collins, Clark County Assembly District No. 1, told the committee that electrical contractors, housing developers, and others were in favor of A.B. 55. The bill addresses issues with contractors, developers, supply houses, electrical parts and supplies, and environmental concerns. The environment becomes a concern when illegally acquired electrical conductive materials are taken to an isolated location in the desert and burnt; and then sold to scrap yards, salvage yards, and recycling facilities.

Mr. Collins stated the group that asked him to introduce the bill was a combined effort of the Las Vegas Metropolitan Police Department, and the Electrical Contractors Association (ECA). The ECA felt that if the Legislature could increase the penalty and the provisions for the violators being able to acquire financial reward, that could help reduce the thievery.

The testimony on the Assembly side was very informative, Mr. Collins continued. He said Stan R. Olsen, Lobbyist, Lieutenant, Government Liaison, Intergovernmental Services, Nevada Sheriffs and Chiefs Association, and Las Vegas Metropolitan Police Department, presented figures of about $1 million in losses per year in Clark County, as well as tremendous loss by contractors; and those costs are paid by the residents of the state.

Mr. Collins stated the bill did not require the recycling, salvage, and scrap yard companies to do any more paperwork, except on that paperwork to include if the wire was burnt legally. Where there are car accidents, fires in buildings or demolition of structures such as the Aladdin Hotel and Casino implosion, the recycling facility usually has the contractor clean out and recycle that material, so the contractor is already the owner of the materials by contract. Most of the provisions are already covered under contracts.

Mr. Collins stressed the primary aim of this legislation would be to deter the individual that goes to a dark location, cuts all the wires in a termination box and takes them with him, or to new construction sites where they steal the wiring. This bill would also help wholesale suppliers, where the wire is stolen from inside their fence. Mr. Collins pointed out that number 1 copper wire is a nice clean shiny wire and brings the most money, and number 2 copper wire is wire that does not have insulation but is burnt, corroded or not in top shape for processing or recycling. He pointed out that thieves get a higher value for number 2 copper than they can get for insulated copper. Additionally, most copper wire that has insulation has the name stamped on it. By burning the insulation, the identification is removed from the wire and a higher value for the weight of the wire can be obtained.

Senator Washington inquired if he was saying in section 2, subsection 1 of S.B. 55, that any dealer that receives this wire could also be prosecuted for receiving the scrap metal and scrap wire. In response, Mr. Collins said that was the case now. The scrap dealer could be prosecuted for receiving stolen materials. This was just clarification on burnt wire because it was not as easily identifiable as products that are not damaged by fire.

Senator Washington asked how a scrap dealer would know whether or not the wire was legitimate or stolen if it was not identifiable. Mr. Collins replied that large contractors, large demolition sites, as well as utilities sites, have their own control; by contract they have their own documentation on that wire. Contract people who come in with a pile of burnt wire in the back of their truck already have documents which are provided to the Las Vegas Metropolitan Police Department (Metro) in Clark County. That document is filled out for anything over $25 and has the name, the driver’s license, and license plate of the individuals. Many times pictures are taken of the individuals when there is a question. The information presently collected is already turned over to the police department on a periodic basis. A copy is kept on file by the recycling companies for a couple of years because of the statute of limitations on the particular crimes that could be involved.

The documentation proposed in A.B. 55 is basically the same, Mr. Collins continued. The only change in documentation is that if an individual or persons sell this burnt wire to a recycler, or attempt to sell this wire to a facility, it also has to be written down, just purely for the record. Mr. Collins stressed that the documentation is not a notarized piece of paper, it simply says the individual freely admits that this wire was acquired legally and burned correctly. The only issue on the term ‘burnt correctly’ would be when there was damage due to accident, but usually that scrap wire was picked up by a contractor versus an individual.

Senator Wiener wondered about the use of the word "burnt." She said she did not see a definition of what the word "burnt" meant, querying to what extent it would be burnt.

Mr. Collins offered an example, stating that 10 or 12 years ago in Las Vegas, Tropicana Avenue and Interstate-15 were being widened. The heavy equipment damaged and opened up the jet fuel line that runs under Industrial Road. The fuel traveled over a half mile burning up utility poles holding communication wire, telephone wire, and power line wire; that wire was damaged and burnt.

Mr. Collins stressed an example of burnt wire would be when people take rolls of Romex or reels of large copper conductor used in residential construction or commercial construction sites. A reel of wire worth many thousands of dollars with the high voltage insulation on it for safety provisions is taken to a remote area of southern Nevada and burnt. They would burn it by pouring gasoline or something on it; the rubber or synthetic rubber insulation around that conductor is burned off; the wire stays whole and does not melt because it requires a higher heat. The burned insulation and residual products are then knocked off the wire.

Senator Care wanted to know about, for example, if two guys show up at the scrap dealer in a pickup with burnt wire. He noted this is not like collecting aluminum cans by the side of the road, and queried where the individuals in a pickup truck would usually get this kind of burnt wire.

Mr. Collins replied in the remodeling of a house, a clean-up business might come across this kind of wire left by others, or from cleaning up a demolished house, an old yard, or a storage facility. Folks go out and scavenge for scrap all the time, they are not a contractor or a business, per se; they just run around in an old truck looking for things. A lot of them have cleaned up our deserts of the washing machines and other discarded things. They could pull this wire out of a burned-out washing machine motor or a burned-out car; but it would be in small quantities, and when they sold this scrap wire they would simply write on the form, "It came out of a burned washing machine motor at my address."

Mr Collins stressed that when these same people come in with hundreds of pounds of 500 MCM copper, which is approximately 1½ inches in diameter, and it is in 200-, 300-, or 500-foot lengths, and they are not a licensed contractor, they probably did not acquire the wire legally. The sellers would have to have a piece of paper saying they bought it somewhere.

Senator Washington remarked that when he left UNR (University of Nevada, Reno) he had gone to work for a couple of electrical shops. He noticed the journeymen usually collected the scrap wire for themselves; they loaded it in their own trucks, and disposed of the insulation on the wire; and then sold the wire. He queried if this bill would prohibit them from collecting that wire for themselves.

In response, Mr. Collins replied that things have not changed. At job sites, especially in southern Nevada where so much piecework goes on, there may be two rolls of "Romex 12/2" left over from the job; sometimes clean up is done by the electrician who wired the house, or maybe by the person doing the trim. This bill is not going after those people. The superintendents on a lot of those projects just throw that wire away, so if someone is picking up those scraps, that is not affected by this legislation at all.

Warren B. Hardy II, Lobbyist, Smith/Christensen, Inc., said the company owns Nevada Pick-A-Part, Abbie’s Recycling Center, and Boulder City Disposal. He said Smith/Christensen supports Assemblyman Collins’ bill and increasing the penalty to a gross misdemeanor for wire-theft offenses, which is a problem the industry faces every day.

Mr. Hardy stated his concern with the bill; he had spoken with Mr. Collins as well as with the law enforcement representatives, and believes he has a friendly amendment. He said he had spoken to the chairman of the Assembly Committee on Judiciary and apologized for missing this item in the Assembly, and would like to apologize to this committee as well. He pointed out specifically, section 2, subsection 1, the last portion where it says, "…and demonstrating that the wire was lawfully acquired and burned." That can sometimes be cumbersome and an additional regulation on the small business owner. The business he represents would prefer to see some language that requires an individual to sign a piece of paper, an affidavit, something indicating the wire was acquired legally. They are willing to take all the other information required by chapter 647 of Nevada Revised Statutes (NRS) in terms of the person’s identification. If there could be clarification in the statute, then he could fully support the bill.

Senator James asked if Mr. Hardy had proposed language for that amendment. Mr. Hardy replied it was being prepared.

Stan R. Olsen, Lobbyist, Lieutenant, Government Liaison, Intergovernmental Services, Las Vegas Metropolitan Police Department, Nevada Sheriffs and Chiefs Association, said their construction-theft unit worked with Assemblyman Collins in drafting the legislation. He stated the theft of metal has become a significant problem in Las Vegas. For example, the thieves take the metal rails off the freeways, smash them up and sell them as scrap metal. They go after any kind of metal they think they could get away with and especially if it is unidentifiable.

Lieutenant Olsen emphasized another example where a developer had contracted with a group to Sheetrock 15 homes. Before the group Sheetrocked, they cut all the wires from the back of the breaker boxes, removed all the wiring from the houses, then Sheetrocked all 15 houses. When the people started moving into the homes they bought, they found no electricity because all the wiring to the houses was gone. The developer had to remove all the Sheetrock, rewire the houses, then re-Sheetrock all the houses. From what the developer could ascertain, the thieves did not generate more than a $1,000 from all that wiring. This is not an uncommon activity; 15 houses is somewhat uncommon, usually it is only a couple of houses.

Senator Wiener wondered about taking the railings off the highways, if that would fall under this bill, because that was not burned wire. Lieutenant Olsen responded that it was just an example of the theft of metal and the lengths that people will go to get the metal.

Senator Care queried Lieutenant Olsen about Mr. Hardy’s proposed amendment, that a way for a scrap dealer to handle a transaction is a simple statement or affidavit from the seller. The Senator also queried how a deal is worked with pawnshops, and if Lieutenant Olsen agreed with what Mr. Hardy suggested as an amendment. Lieutenant Olsen stated Metro had no problem with the amendment; in reality it is similar to what pawnshops do (show identification). The scrap dealer would require identification and keep the information for a period of time so law enforcement has some kind of a trail with which to backtrack, and the affidavit could come in handy for an investigation.

Susan Miller, Lobbyist, Senior Governmental Service Representative, Sierra Pacific Power Company, said they support Mr. Collins in his efforts to get A.B. 55 passed. Sierra Pacific Power Company loses a lot of wire every year. She stated that it is hard to protect their assets. She did not have an exact dollar amount, but stated it was roughly thousands of dollars every year for stolen wire.

There being no further testimony, Senator James closed the hearing on A.B. 55.

Chairman James accepted committee introductions of various bill draft requests (BDRs).

Chairman James stressed that the Office of the Attorney General requested BDR 14-296.

Chairman James pointed out that Senator Townsend requested this bill draft for introduction. Under chapter 99 of NRS, this proposal would be referred to judiciary.

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Chairman James brought to the committee’s attention that this day, Monday, February 22, 1999, was the last day for a committee to request the drafting of bills. He pointed out that this committee can only request the drafting of bills that would be heard by this committee.

Senator James proceeded to read the first request for a bill draft, pertaining to driving under the influence of controlled substances, providing that driving under the influence of controlled substance, regardless of amount, is a per se violation. He pointed out the bill draft was requested by Senator Porter.

Senator Porter related that a family in Boulder City (Nevada) who lost a son in an automobile accident brought this situation to his attention. A driver under the influence of marijuana hit the young man. Since the rules are different for a controlled substance than for alcohol, the driver’s sentence was much lighter; he was put on probation only.

Senator Wiener wanted clarification pertaining to prescription drugs, asking where the line should be drawn.

Bradley A. Wilkinson, Committee Counsel, Research Division, Legislative Counsel Bureau, responded that as he understood the proposed bill draft it would distinguish between prescribed medication, and whether the person had been advised not to drive, if that went along with taking the medication. He stated even if you have a prescription, you could not become under the influence of a controlled substance and drive under the proposal.

Chairman James emphasized he wanted it made clear that by voting for a bill draft the committee or individual members are not necessarily endorsing a bill or saying they are going to vote for it; they are just voting to authorize a bill draft. The same holds true for a committee introduction.

Chairman James introduced the next request for a bill draft; affidavits in bad-check cases that authorize the use of affidavits for out-of-state banks’ personnel in bad check cases. He stated the Nevada District Attorneys’ Association requested this bill draft.

Ben Graham, Lobbyist, Nevada District Attorneys’ Association (NDAA), explained this request had risen primarily out of their efforts to stem bad checks in both Washoe and Clark counties, and now they are talking about including the rural counties. He stated a lot of bad checks are written on out-of-state banks. He said evidence is needed to successfully go through at least the preliminary hearing of the grand jury stage. It comes back that the bank account was closed or with insufficient funds. At present prosecutors have to bring in witnesses from the banks in other states. The NDAA is asking that an affidavit, properly documented, could be utilized at the preliminary hearing and grand jury stage only.

Chairman James introduced a request for a bill draft to adopt the National Crime Prevention and Privacy Compact of 1998, which will enable the Central Repository for Nevada Records of Criminal History to access national criminal history records maintained by the Federal Bureau of Investigation for background checks for licensing employment. He stated Dennis A. DeBacco, Supervisor, Central Repository for Nevada Records of Criminal History, Nevada Highway Patrol Division, Department of Motor Vehicles and Public Safety, who is the caretaker of those records, had requested this bill draft in association with Assemblyman Dennis Nolan, Clark County Assembly District No. 13. The Senate side has dealt with this issue before, so it seemed appropriate to start with this committee. It also tied in with the next request for a bill draft.

Chairman James introduced the next request made by Dennis Debacco and Assemblyman Nolan, the Volunteers for Children Act of 1998. Chairman James explained this federal act authorizes qualified entities providing services for children, the elderly, and disabled to use fingerprint-based, national criminal-history background checks to screen out volunteers and employees with relevant criminal records. He averred certain state laws need to be amended to bring Nevada into compliance.

Senator James referenced a request from the Nevada Resort Association for a bill draft to amend gaming statutes. Greg W. Ferraro, Lobbyist, Nevada Resort Association (NRA), explained it would amend Nevada Revised Statutes (NRS) 463.245, to provide that it is unlawful for a slot machine manufacturer to receive a percentage of the profits from the slot machine or to receive certain fees for the use of the machine.

Mr. Ferraro continued that there has been a history between the manufacturers and the licensees in the industry where it has gotten to a point where the NRA, he stressed, "may need to seek a legislative remedy to a situation that had risen." He said he was reluctant to present the case that day, because there was still activity and discussion between the parties. He stated because of the new deadline rules for bill draft requests, the NRA needed to merely make the request. He said he believes they may be able to work out the differences; if not, they would return to make what they believe is a compelling case in favor of the legislation.

Senator James introduced a bill request regarding temporary guardians, which requires that a request for emergency appointment of a temporary guardian be accompanied by a medical certificate from a doctor indicating that the proposed ward is unable to respond to a substantial and immediate risk of financial loss or physical harm. He stated this was requested by Senator Raymond D. Rawson, Clark County Senatorial District No. 6.

Chairman James introduced a bill request regarding trials de novo which was requested by District Judge Gene T. Porter and District Judge Mark W. Gibbons of the Eighth Judicial District. Chairman James stated this bill draft requires that the findings of an arbitrator in a nonbinding arbitration be allowed to be submitted to the jury for consideration.

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Chairman James introduced the last request for a bill draft, regarding grand jury information. Chairman James reminded the committee that last week John C. Morrow, Chief Deputy, Washoe County Public Defender, requested the consideration of an amendment that was thought outside the scope of the bill under review by the committee. Mr. Morrow was told that the proposed amendment could be considered as a BDR, which provides that a target of a grand jury investigation be furnished a summary of the evidence the prosecuting attorney intends to present to the grand jury.

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Robert Crowell, Lobbyist, Nevada Judges Association, asked the committee’s indulgence in drafting a bill that would call for an interim study of mandatory sentencing and mandatory bail amounts for misdemeanors. He stated there were at least four statutes that deal with mandatory sentences and bails; for example, the petty larceny statute, the DUI (driving under the influence) statute, the domestic battery statute, and the domestic battery bail statute. All these statutes have mandatory requirements where the court must impose penalty. Mr. Crowell averred the judges association asks that the Legislature take some time over the interim to review all statutes in Nevada that deal with misdemeanors that have mandatory sentences and mandatory bail amounts. The review is to determine whether or not the sentences are internally consistent with each other. He also suggested perhaps more important, to determine whether or not the mandatory sentencing works, and if it is doing what was intended when the mandatory sentencing/bail legislation was passed. Some issues have arisen for the justices of the peace (JP) to believe a review is needed. Currently the law allows for an either/or; i.e., if someone is convicted of a DUI, he could either elect to go to jail for 48 hours or to perform 96 hours of community service.

Chairman James noted Mr. Crowell will have to make the presentation again to the Senate Committee on Legislative Affairs and Operations. Chairman James stated a standing committee may only request the drafting of a bill or resolution, or introduce a bill or resolution, that is within the jurisdiction of the standing committee. Previous comments had been pointed out that this bill draft would be in Senator Porter’s committee (Senate Committee on Legislative Affairs and Operations). Senator Porter stressed that his committee would not be meeting until the following week, which would be too late to request a bill draft.

Mr. Crowell continued that the issue was people were choosing jail as opposed to community service because it is easier to do 48 hours of jail compared to 96 hours of community service. The idea behind the request is to perhaps make the jail 96 hours, or reduce community service to 48 hours. He pointed out right now what was intended as a penalty is being applied as a privilege for someone who has been convicted.

Senator Porter suggested that Mr. Crowell simply propose some language for the judiciary committee to review this session. Mr. Crowell agreed.

Mr. Crowell commented that the judges association asks the committee to review the mandatory sentencing and mandatory bail for petty larceny, DUI, and domestic battery. Mr. Crowell said that on DUIs the judges have taken the position of sentencing to make it uniform to 48 hours for either community service or jail time. If the committee desires 96 hours for both, that would be okay, too.

Mr. Crowell acknowledged that the way the bill was proposed it is somewhat ambiguous, but if the issue is raised and discussed, then that would satisfy his client. He also added that on the domestic-violence issue, the minimum fine was $200, and the minimum bail was $3,000. So when someone is convicted, they look at paying the fine, not the bail. That is an example of what he was talking about in terms of internal inconsistency. He stated he would be willing to work with the bill drafter, to get more specific language, to deal with those four areas, starting with petty larceny.

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There being no further business, the meeting as adjourned at 10:27 a.m.

RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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