The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 9:45 a.m., on Tuesday, March 9, 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 Dina Titus

Senator Valerie Wiener

Senator Terry Care

COMMITTEE MEMBERS ABSENT:

Senator Maurice Washington (Excused)

STAFF MEMBERS PRESENT:

Laura Adler, Committee Secretary

OTHERS PRESENT:

Chairman James opened the hearing on Senate Bill (S.B.) 273 and called for testimony on the bill.

Mills Lane, former District Judge, Concerned Citizen, said he was testifying on behalf of the bail-bond industry to endorse parts of the bill. He stated own recognizance (OR) is a viable concept; however, it has been abused by people who use it as a revolving door. He voiced there should be at least a preliminary investigation by court services before release. He suggested if someone on release is arrested in another locale, the bondsman should be the one to return that person. Money should not be spent from public coffers. It is the bonds people who take the risk so they should return these people. He continued the bonds people should be in a position to bring people back by getting a notice from the court. Judge Lane stated the federal government has something known as unlawful flight to avoid prosecution (UFAP). He said if Nevada had such a statute it could be a felony offense. The district attorney does not have to file a UFAP, but in appropriate situations it allows a person to be detained in another locale, so the bondsman can bring that person back. Without a UFAP the bondsman cannot get anyone.

Judge Lane maintained he did not believe every violent crime should be "own recognizance" possibility. For example, a man who has no substantial criminal record is leaving a restaurant on a Friday night with his wife and a stranger makes a nasty remark to the man’s wife. The man tells the stranger to shut up. The stranger verbally challenges the man and physically moves towards him. The man believing he now must defend himself, grabs the closest thing he can find, hits the stranger on the head, and opens a wound. Now the man has given probable cause to be charged for battery with a deadly weapon. Judge Lane stated that man should not have to stay in jail the whole weekend waiting until Monday for a hearing before a judge. He emphasized in his view that was an OR offense. He said under those circumstances for the bill to say violent felons cannot be released on their own recognizance is going too far; the OR should be applied in appropriate circumstances.

Judge Lane stated someone who commits a "violent felony," depending on how that word is defined, should be permissible to OR release. Judge Lane summarized the matter of bail requires policing and investigation before own recognizance. It would, hopefully, deny people that abuse OR to be released, makes the bondsmen pick up the people they bond, and give the courts some elasticity.

Annie Rees, Lobbyist, President, Nevada Bail Agents Association (NBAA), said she would like to give the committee some background on why the bill was requested. She said in 1997 the NBAA worked with Senator Neal to pass S.B. 194 of the Sixty-ninth Session, which was to bring a new level of professionalism to the bail-bond industry in concert with the criminal justice system.

Ms. Rees stated with the bill from last session fee guidelines were set to protect the public; felons are prohibited from working in the bail bond industry, and it created model legislation for bail enforcement agents. The legislation also made for licensing, training, certification, and screening of bondsmen. This legislation was the first comprehensive system in the United States and is offered as a course through the Truckee Meadows Community College. Ms. Rees stated S.B. 273 was designed to enhance the previous legislation by protecting the public from defendants who would abuse the OR system, revise the forfeiture and exoneration of bonds to create more unity across Nevada, and to more clearly define the responsibilities of the bail professional in the criminal justice system.

Ms. Rees referenced proposed changes, additions, and deletions to S.B. 273 (Exhibit C) She noted the proposed changes include provisions to ensure judges issue arrest warrants within 30 days after someone fails to appear for court. She said, for example, there was a case in which a man, for whom she was the bonding agent, failed to appear in court on two separate rape charges, and it took the court 4 months to issue a warrant for his arrest. She continued the man was finally located only to find out he had been stopped for traffic offenses 3 times in that 4-month period. Ms. Rees emphasized that had a warrant been issued in a timely manner, the man could have been arrested on any one of those traffic stops.

Senator Care commented the first thing the committee needs to know is the scope of the problem to be addressed. He said it would help if there were statistics on the number of defendants who fled bail and forfeited bail. Ms. Rees replied that as far as bonds are concerned the forfeiture rate for the seven northern counties she covers was about 15 percent, of which she gets back all but 2 percent.

Johnny McDaniel, Owner/Partner, Bail Bonds Inc., said Bail Bonds Inc. has offices throughout the state. He testified forfeitures and their causes are complex, especially if a person in forfeiture has fled to another state. He illustrated, for example, a bondsman apprehended a suspect in Oregon and turned him over to the local magistrate via the sheriff. The magistrate asked the suspect if he wanted to go back to Nevada, and when the suspect said no, the magistrate freed him. Mr. McDaniel said the bondsman had no further recourse. He emphasized the forfeiture rate in the Las Vegas area is very high due to a greater transient rate, between 55-65 percent; and called the OR situation abominable. He expressed that time-and-time again repeated felons who had been out on bail and apprehended, in particular drug dealers, battery domestic violators, and people who are marginally sober, are given carte blanche ORs. He stated some of the existing laws are ignored or changed at the discretion of the presiding judge.

Chairman James observed such an extensive rewrite requires substantial committee review. He offered to establish a subcommittee to address the issues presented, and appointed Senator Washington as chairman, and Senators McGinness and Care to serve on the subcommittee.

John M. Moore, Lobbyist, National Association of Bail Insurance Companies (NABIC), said NABIC members worked diligently with the Nevada District Attorneys’ Association and the defense bar, and for the most part agreed with the proposed changes.

Laurel Stadler, Mothers Against Drunk Drivers (MADD), Lyon County Chapter, said she is in support of the original language in sections 4 and 5. She urged the committee to consider the provision that drunk drivers not be released prior to sobriety. She stressed many jurisdictions do release drunk drivers on their own recognizance or on bail before they are sober. She said MADD would like to see that "failure to appear" warrants are handled in a more serious manner, because the drunk drivers who fail to appear will re-offend until picked up again.

Robert Crowell, Lobbyist, Nevada Judges Association, said he was here to speak against the bill, but like the committee he had not had an opportunity to review the proposed changes. He said he would be available to work with the proponents and the subcommittee.

Ben Graham, Lobbyist, Clark County District Attorney, and Nevada District Attorneys’ Association, stated there has been more total time and energy put into this legislation over the last year and a half than any other piece of legislation with which he has worked. He said the emphasis was to help make the bill workable, but anything that would facilitate the exoneration of bail and place further burdens on the court and the district attorney’s office could not be supported.

Gemma Greene, Lobbyist, Deputy District Attorney, Criminal Division, Office of the District Attorney, Washoe County, testified she was one of the people who spent several hours working on the proposed revisions to the bill. She commented there appears to be language in the draft that was new to her as of today. She agreed it is appropriate for the bill to go to subcommittee.

Stephen W. Driscoll, Lobbyist, City of Sparks Municipal Court, said he appreciated the comments regarding the last-minute changes. There are several issues from the court-processing point of view that may become unfunded mandates.

Karen Winkler, Attorney, Nevada Attorneys for Criminal Justice, said she also worked on the proposed changes to the bill to make it acceptable. She stated the concerns were the court was losing its discretion on matters of OR, and that continued to be a problem with the bill. Another concern was the ability to release people in a systematic way. She observed the bail-bond people are taking the position that this is not happening properly in Las Vegas. Ms. Winkler assured the committee that was not the case; the system was working as it should. She asserted the bill cannot be a massive approach which takes away the discretion of the judges.

Chairman James cautioned that any mandates for judges would likely be rejected, and added the committee would not curtail the discretion of the judges in matters relating to bail and arrest warrants.

Hearing no further testimony, Chairman James closed the hearing on S.B. 273, and opened the hearing on Assembly Bill (A.B.) 85.

Cynthia Pyzel, Senior Deputy Attorney General, Mental Hygiene/Mental Retardation, Office of the Attorney General (AG), said the AG’s office introduced this bill on behalf of 7-Eleven franchise owners. The bill permits a merchant to detain a person they have observed concealing merchandise while in the store and before leaving.

Joannie Hill, Owner, Las Vegas 7-Eleven Store #29656, representing Business Watch Network Legislative Committee, read from prepared text (Exhibit D) emphasizing her support of A.B. 85. She stated her store was the reason A.B. 85 is in front of the committee today.

Senator Care presented a scenario where, on a hot day, a customer drinks a soda, and later after picking up a few other items brings the items and the empty soda can to the register. He said arguably once the soda has been consumed, that could be concealment. Ms. Hill replied it would not be considered concealment, so long as no attempt had been made to dispose of or hide the container. She said she was emphasizing deliberate concealment from view.

Senator Titus stated she had received e-mail (Exhibit E) from Pamela Terry of Southern Nevada Retail Loss Prevention Association, and Tommy Thompson, security director for the Galleria Sunset Mall in Henderson. She said both e-mails state this legislation would make it more difficult to catch shoplifters, because of the provision the clerk actually has to see the person taking and concealing the merchandise. Ms. Hill claimed that was not exactly accurate. She said the proposed amendment was to clarify a vague law, not to change anything already in the bill.

Senator Titus went on to say the e-mail stated, "adding the requirement that the merchant must observe a person concealing the property just adds another hoop the merchant must jump through while trying to detain someone."

Chairman James observed on line 17, page 1, the words "wrongfully taken" were the source of the ambiguity, because if a person concealed the product while still on the premises, that person has yet to commit a crime. He noted the operative phrase was, "A merchant shall be deemed to have reason to believe that merchandise has been wrongfully taken …." Chairman James noted that on page 1, line 17, the amendment is suggesting to clarify the words "wrongfully taken" by saying if the person is seen concealing merchandise, that is going to be deemed to be wrongfully taken. He continued it would be a presumption that the merchandise was wrongfully taken if the person is seen concealing it. He said, for example, someone tells the clerk he saw his friend take something; now there is a credible witness. That is reason enough to lawfully detain that person under this law, even though the clerk did not actually see the person conceal anything.

Chairman James said it is possible this new legislation could be interpreted to mean that in order for something to be wrongfully taken, the clerk would have to see it. If that person was not seen by the clerk, then the clerk did not have reason in the eyes of the law to believe the item was wrongfully taken.

Senator Titus mentioned another example given in the e-mail was a great deal of theft occurs in dressing rooms where people cannot be observed. Ms. Pyzel interjected that perhaps the best thing to do would be to go back and rework the language to make sure the concerns in the e-mail are addressed and do not preclude certain events.

Chairman James asked the Committee Counsel if he knew why the bill was drafted in this manner. Bradley A. Wilkinson, Committee Counsel, Legal Division, Legislative Council Bureau, responded he thought the intent was to make it one example of something that would be wrongfully taken, probably not limited. He agreed the way the bill was written "wrongfully taken" could be subject to interpretation. Mr. Wilkinson stated language could be developed to express the real intent of the bill.

Senator Care wondered if there are cases where someone conceals merchandise and starts to leave the store; and the clerk knows it, but the person thinks better of it and puts the item back. Ms. Hill responded in her 27 years in business, she did not recall ever seeing that type of scenario.

Ms. Greene conveyed the Washoe County District Attorney would be neutral on this bill. She pointed out the aspect of being able to apprehend someone in a store without having left the store would make it a little harder to prove the case. When a person is apprehended outside the store past the cash registers, then it is quite certain that person had no intention of paying for the item. She illustrated it would be difficult to judge intent if, for example, a person with a baby stroller put some items in the stroller because their hands were full. Ms. Greene said this bill would allow a store employee to grab the person right there in the aisle, even though that person had no intention of stealing the item. She concluded a case like that most likely would never get to court.

L. Keith Carter, Sergeant, Lobbyist, Las Vegas Metropolitan Police Department, said he had a lengthy telephone conversation with the people who sent the e-mails to Senator Titus. He conveyed they were concerned about the affect the bill would have on their operations and law enforcement’s ability to make arrests. He surmised the law enforcement officer has to look at probable cause and intent. From the law enforcement standpoint the amendment to the bill appears to make it somewhat more difficult to make an arrest if in fact an observation does occur. He concluded the police would look at the circumstances surrounding any type of theft.

Peter D. Krueger, Lobbyist, State Executive, Nevada Petroleum Marketers & Convenience Store Association, said the association represents many of the independent convenience stores throughout the state, and they preferred the original more broadly constructed draft of the bill. He stated the association now has some concerns about the wording in the redraft of the bill. He emphasized this was a good bill and all concerned needed to do whatever they could to allow flexibility to store personnel to prevent and detain, in order to reduce the current rate of shoplifting. He concluded that retail theft is costing everyone more, and he is in support of legislation to reduce the theft.

Chairman James noted the existing law has a self-help remedy to immunize merchants from what would otherwise be false imprisonment if shoplifting was suspected. He maintained this bill is trying to define the words, "wrongfully taken."

Mary F. Lau, Lobbyist, Executive Director, Retail Association of Nevada (RAN), said RAN represents large and small retailers throughout Nevada. She iterated the large retailers have security departments who observe people; they recognize professional "boosters" and others. She continued that the smaller retailers do not have the luxury of security departments. She added it is for the small-store operator that the bill needs to be cleaned up to aid them in reducing the theft problem.

Amy Halley Hill, Lobbyist, Retail Association of Nevada, said she too would be willing to work with the committee to help craft the language to do just what is needed, especially for the small retailer.

Chairman James asked Ms. Pyzel to coordinate with the other proponents of the bill to develop language to address the committee’s concerns, and bring that language back for a work session on the bill.

There being no further testimony, Chairman James closed the hearing on A.B. 85, and opened the hearing on Assembly Bill (A.B.) 104.

Shirley M. Penzel, Projects Chief, Real Estate Division, Department of Business and Industry, stated she has provided copies of her comments and the relative portions of Nevada Revised Statutes (NRS) 119B.220, Sale of Memberships, and NRS 119A.370, Sale of Time Shares (Exhibit F), that affect the issue of the bill. She said the original intent of the campground bill was to make the fee schedule the same as for the time-share bill to charge campgrounds by the number of memberships, not the number of sites. She conveyed that unfortunately the bill said "sites" in a couple of places instead of "memberships."

There being no further testimony on the bill, Chairman James closed the hearing on A.B. 104, and opened the hearing on A.B. 105.

Shirley Petro, Compliance Officer, Real Estate Division, Department of Business and Industry, stated she was testifying on behalf of the Administrator, Joan Buchanan, Real Estate Division, Department of Business and Industry, who is attending another hearing. Ms. Petro referenced the prepared handout (Exhibit G) and said the department would like a fee to be charged to time-share agents who take the test, which the department is already administering free of charge. She said the department now charges a fee to administer testing for NRS chapter 645, chapter 645C, and chapter 645D, but not for NRS chapter 119A.

Senator Porter requested information regarding what the $50 fee actually covered. Ms. Petro responded the fee would be for the private party conducting classes who would bring the curriculum to the department for prior approval.

Chairman James noted there is also a fee for the test, and wondered why that fee was not also included in the bill. Ms. Petro stated fees change, but since Ms. Buchanan was not present, she could only speculate. However, Ms. Petro noted in the handout it said no more than $40 for the actual testing fee. Ms. Petro expounded the department charges $100 for real estate licensees. They averaged 20 tests per month for time-share agents.

Chairman James asked Ms. Petro to clarify if chapter 645 of NRS for a similar examination has a fee and a provision in Nevada Administrative Code (NAC). Ms. Petro responded it was in NAC. In fact, in chapter 645 of NRS, the testing fee was $50 and had gone up to $100. She added that the cost of a license is in the statutes, but testing is under the administrative codes.

Chairman James surmised what Ms. Petro was saying was the applicant license and renewal fees are in the statutes at $100; but the testing fee was in the NAC, and that was because the cost of administering the test varies. He noted clarification was in NRS 645.410, section 1, which says, "The commission shall adopt regulations establishing the fee for an examination for a license as a real estate broker, broker-salesman or salesman, and all other fees necessary for the administration of the examination."

There being no further testimony on the bill, Chairman James closed the hearing on A.B.105 and accepted a motion, noting the bill required a two-thirds majority vote.

*****

There being no further business, the meeting was adjourned at 11:10 a.m.

RESPECTFULLY SUBMITTED:

Laura Adler,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

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