The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:50 a.m., on Wednesday, April 7, 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 Dina Titus

Senator Valerie Wiener

Senator Terry Care

STAFF MEMBERS PRESENT:

Janice McClure, Committee Secretary

OTHERS PRESENT:

Kara Kelley, Lobbyist, Las Vegas Chamber of Commerce

Chairman James said that he and Senator Care were concerned about the investigatory-subpoena issue discussed at the last Senate Committee on Judiciary meeting on S.B. 485. He indicated a witness who testified on this bill at the last hearing said the investigatory-subpoena issue was already in the law, however Legislative Counsel Bureau research staff had not been able to find it in the law.

Anne Cathcart, Senior Attorney General, Office of the Attorney General, said after the last Senate Committee on Judiciary meeting on S.B. 485 she contacted Kevin Higgins, Chief Deputy Attorney General, Fraud Control Unit for Industrial Insurance, Office of the Attorney General, who had originally submitted the bill draft request. She said Mr. Higgins was surprised the investigatory-subpoena issue was in the bill because he had intended for this bill to have administrative subpoena power rather than investigative. She indicated something must have been lost in the translation. Ms. Cathcart submitted proposed revisions to S.B. 485 (Exhibit C).

Charles Hilsabeck, Deputy Attorney General, Welfare, Human Resources Division, Office of the Attorney General, said two statutes regulating public utilities found in the Nevada Revised Statutes (NRS) chapter 704, NRS 704.201 and NRS 704.202, address subpoenas. He continued that he listed those statutes verbatim and substituted "public utility" with the term "provider" or "Internet service provider" as defined in sections 13, 20 and 22 of S.B. 485, which limits the type of information that can be subpoenaed. Mr. Hilsabeck indicated that language is on page 13 of Exhibit C beginning with section 49. He pointed out a number of sections had been deleted regarding investigative subpoenas and two sections were added dealing with administrative subpoenas. He indicated sections 13, 20 and 22 define "provider" and "Internet service provider." Mr. Hilsabeck said the purpose of the subpoena is to obtain subscriber, membership, or customer lists to locate people who are committing crimes through the Internet and using a specific service provider to commit the crime. He continued once a person committing crimes through the Internet is found, traditional investigative and grand jury procedures would ensue.

Senator Care said, in reviewing Exhibit C, the judicial review language from section 55 is gone from the original bill. He asked with regard to an administrative subpoena if there should be a vehicle for judicial review by either the Internet provider or the person whose name would be on the list. Mr. Hilsabeck said he thought judicial review would be available even if not stated in S.B. 485 and that he did not think there would be a problem adding the judicial review language to the bill.

Chairman James asked where, outside the statute, judicial review would be available. Ms. Cathcart said it was her understanding if a party has an objection to receiving a subpoena they can file a motion to quash and request a court hearing on the matter. Chairman James pointed out there would not be a case, but just the issuance of a subpoena. Ms. Cathcart said she had seen a couple of motions to quash at the attorney general’s office with respect to administrative subpoenas. Chairman James asked how this matter would come before the court and suggested leaving the judicial review language in section 55 of S.B. 485. Ms. Cathcart said that would be acceptable.

Marshall Smith, Deputy Attorney General, Bureau of Consumer Protection, Office of the Attorney General, said the changes reflected on page 4 of Exhibit C are the product of negotiations which have transpired since the last hearing on this bill. He said he believed the "slamming" and "cramming" portion of this bill should be incorporated in NRS chapter 598, Deceptive Trade Practices, allowing for removal of section 16. He furthered by placing the "slamming" and "cramming" provisions in S.B. 485 all the other administrative procedures would be available for the investigation, review and prosecution of these type of offenses.

Chairman James asked Brad Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, if NRS chapter 598 would be the correct place to incorporate the "slamming" and "cramming" provisions of S.B. 485. Mr. Wilkinson said that would be acceptable.

Mr. Smith said section 13, subsection 3 of S.B. 485, was to be replaced with "A person who originates a charge for a telecommunication service and directly or indirectly bills a customer for the charge." He continued on page 5, subsection 6 of S.B. 485, "should have known" was taken out of the first sentence and now reads ". . . that the provider knows the customer has not authorized, unless the service is required to be provided by law." Mr. Smith indicated the last sentence of subsection 6, "A provider which has obtained authorization to change a customer’s local or toll telecommunications service, shall submit written confirmation of the change to the customer within 30 days after the change" has been added.

Ms. Cathcart referred the committee to page 7 of Exhibit C, indicating section 18 of the bill regarding "debit cards" had been deleted and included in the same category as "credit cards."

Senator Porter asked Mr. Smith how he would define "authorized" with regard to section 15, subsection 3 (Exhibit C). Mr. Smith replied as used in section 15, subsection 3, "authorized" is intended to curtail, eliminate, prohibit, or at least provide for a sanctionable basis to get at a reseller of long distance service who has stated to a local provider that a subscriber has authorized a long distance change. Mr. Smith indicated one of the primary methods used by slamming carriers to effect the unauthorized change is to send data to a local telephone company indicating a subscriber has authorized a change when in fact there was no authorization.

Senator Porter asked what "authorization" is considered to be. Mr. Smith explained the Federal Communications Commission (FCC) provides for three different ways to verify authorization. He said one way is by obtaining a letter of authorization, a second way is by obtaining an electronic authorization, and a third way is by an independent third-party verification. Senator Porter asked Mr. Smith to define "electronic authorization." Mr. Smith said he could not provide an adequate definition at this time. Mr. Smith furthered with reference to section 15, subsection 10, the carrier must submit written confirmation of the change to the customer.

Senator Porter asked Mr. Smith to explain section 15, subsection 9. Mr. Smith said it specifically addresses the problem of having a customer who tells a long distance company they want to change from their current long distance carrier. Mr. Smith stated no matter how that reseller obtains the authorization, that authorization is only good for 30 days. Mr. Smith said he has been seeing more of the potential for resellers to use authorizations obtained by subscribers from 6 months to a year ago, and in the interim the subscriber will have changed from the original carrier to another carrier. The original carrier will use that dated authorization to change the carrier again without actually getting authorization from the carrier.

Senator Porter asked what type of notice a provider gives to a carrier. Mr. Smith replied the provider will obtain an authorization from a customer and then the provider will send the authorization information to the local carrier. Senator Porter inquired whether the provider, the carrier, or the local company tells the customer within 30 days that there has been a change in their long distance carrier. Mr. Smith replied whoever is providing the new service has to notify the customer within 30 days. Senator Porter asked Mr. Smith to provide him with the definition of "electronic authorization" as soon as possible.

Chairman James asked where in the proposed revisions of S.B. 485 is the issue of dealing with sweepstakes. Mr. Smith responded that issue is dealt with in the FCC rules, which more clearly defines a written authorization, and the rule came about precisely because the carriers were using ingenious ways of having people sign their names to a document which was not clear that they were authorizing a long distance carrier change. Mr. Smith added that provision could be brought into this statute as well.

Senator Wiener asked if there was a requirement that the customer notify the existing long distance provider that he is changing carriers. Mr. Smith replied the reseller who has obtained authorization from the customer will send the authorization to the local carrier and then the local carrier will remove that customer from the previous long distance carrier to the new long distance carrier. Senator Wiener indicated that is not always the case because she is still paying for two long distance carriers. Mr. Smith pointed out section 15, subsection 7 of S.B. 485, requires a provider shall not "Fail to honor, within a reasonable period, a request of a customer to cancel a telecommunications service pursuant to the terms and conditions for the service."

Senator Washington asked if it was the customer’s responsibility to notify the appropriate investigative agency if they have been duped into entering a sweepstakes in which their signature ultimately authorizes a change in long distance carrier. Mr. Smith replied if someone signs for a sweepstakes entry not knowing the legal effect is to switch their long distance carrier, the customer will know within the next billing cycle whether or not that was changed. Mr. Smith continued a customer might also find out that his long distance carrier has been changed when he tries to use his calling card number for long distance service and he is informed he is no longer with that particular service.

Senator Washington queried how restitution is made to the consumer. Mr. Smith replied the new FCC rules provide for a 30-day absolution period, which means within 30 days after the unauthorized charge the consumer will not be libel for those charges. Mr. Smith continued this essentially provides the consumer 30 days to become aware of the fact he has been slammed. He furthered the carrier who made the unauthorized change would be responsible for the charges during the 30-day absolution period.

Senator Porter inquired how S.B. 485 would protect businesses from being "slammed." Mr. Smith replied that hopefully making phone slamming of businesses a deceptive trade practice would remedy Senator Porter’s concern. Mr. Smith said there will always be rogue resellers who will attempt to and obtain unauthorized carrier switches, and that the attorney general’s office will know of these rogue resellers only when consumers complain. Senator Porter stated he had a personal experience where his business telephone was "slammed" and when he investigated the matter, the carrier told him that one of his staff members had verbally agreed to change long distance carriers.

Mr. Smith said this legislation would allow the attorney general’s office to issue an administrative subpoena requesting proof of authorization from a particular business or individual. Senator Porter stressed something needed to be done to prevent slamming from happening in the first place because most people are not going to file a complaint or get involved in a legal situation. Mr. Smith said aside from requiring a local exchange company to verify every single preferred interchange carrier change, he did not think there was anything that could be done to prevent "slamming."

Senator Porter indicated a person could not sign up for credit on his business account and asked why that can be done with telephone service. Mr. Smith said the new FCC order also attempts to define who the person is who can authorize the change. He continued however that is ultimately determined in the new FCC law and will also become part of section 10 of S.B. 485.

Ms. Cathcart suggested adding the phrase "including a request sent via electronic mail" to S.B. 485 as a type of request that can be made for a subscriber to keep their e-mail address confidential.

Charles Stokes, Senior Computer Forensic Technician, Office of the Attorney General, said the changes made to S.B. 485 do not directly address the use of a domain name to slander or gain commercial advantage because it is a trademark issue worked out at the federal level.

Ms. Cathcart said the suggested language pertaining to viruses is included in the current document on pages 21 through 24 of Exhibit C. Chairman James said the language regarding viruses looked good. Mr. Stokes said he got that language from California law.

Chairman James asked for an explanation of the e-mail header information. Mr. Stokes explained there is a great deal of effort on the Internet to be self-policing regarding mass mailing of unsolicited e-mail commercial communications ("spam") and most legitimate Internet service providers will not tolerate the emanation of "spam" from their servers. He said it is a problem for the Internet service providers when they have a rogue person that will counterfeit the Internet protocol (IP) numbers of that legitimate Internet service provider in order to defy the self-regulation trend that is going on the Internet. Mr. Stokes stated the e-mail header information gives the Internet service provider the capability of acting against the criminal who is counterfeiting their IP headers.

Ms. Cathcart said section 74, subsection 1, paragraph (b), on page 19 of Exhibit C was deleted upon the recommendation of the Senate Committee on Finance that paragraph (b) be included in the attorney general’s amended budget rather than in S.B. 485.

Chairman James asked why an appropriation was left in section 74. Ms. Cathcart responded that appropriation was for the executive director and secretary of the high technology crime task force. Chairman James asked why that appropriation was not included in the attorney general’s budget also. Ms. Cathcart replied the high technology crime task force would be created by S.B. 485 and therefore the appropriation should be tied to the bill as a fiscal note because it is not a budget request for a program of the attorney general’s office.

Chairman James asked why the 9-member high technology crime task force does not have any Judicial Branch members or Legislative Branch members. Ms. Cathcart replied there was no particular reason. She said she believed it was a result of various members of the task force pooling their ideas about the appropriate kinds of representatives on the task force. Ms. Cathcart stated she could not think of a reason why Judicial Branch or Legislative Branch members should not be included.

Chairman James noted one of the functions of the high technology crime task force in section 7, subsection 5, is to evaluate and recommend changes to the existing civil and criminal laws relating to high technology crime that reflect changes in technology and law enforcement techniques. He said he assumed there were going to be more high technology crime bills and it probably would not hurt to get some legislative participation on the advisory committee in developing some background so some of the proposals to future legislative sessions will be more familiar to some of the legislators.

Ms. Cathcart said she was in full agreement since high technology crime essentially affects everyone and will be with us for a long time.

Senator Care asked if the task force members would be privy to the status of any ongoing criminal investigation and if there is precedent for one of the task force members to be an employee of the federal government if that member would be an agent of the Federal Bureau of Investigation (FBI).

Ms. Cathcart replied the attorney general’s office has worked very closely with the FBI, U.S. Customs Service, U.S. Secret Service, and Internal Revenue Service on the task force. She said part of the reason for the task force is to ensure there is multi-jurisdictional input on dealing with these problems. She said it is her understanding the aforementioned organizations are ready, willing, and able to help Nevada as much as possible. She stated she did not believe there was any expectation that the board members have knowledge of ongoing criminal investigations, other than maybe if there was an FBI agent having knowledge of a case. She continued she did not believe information would be shared about specific cases with respect to information that is not public knowledge. She added the board is primarily to be an oversight type of organization to assist the executive director in developing a long-range plan for dealing with high technology crimes.

Senator Titus suggested the number of board members should not be increased because if it has too many members it becomes unwieldy. She said when looking at the composition of board members where it provides for two members who represent state agencies, instead of agencies that are affected, it could be made the director of the Department of Information Services and two members of the Legislature. Chairman James concurred as there would then be two legislators, one from each house.

Chairman James pointed out the crimes set forth on page 9 of Exhibit C are based on monetary loss. He said those crimes need to be better defined for a misdemeanor Category C or Category B because the value of property or services may not be determinable, but may still be a serious crime. Chairman James continued the new language in section 27, subsection 3 (Exhibit C), should be eliminated because it is a broad statement of a crime of which the Senate has already passed a very detailed identity crime bill. Chairman James asked Ms. Cathcart to work with Mr. Wilkinson on defining the crimes set forth in section 27, subsection 3. Ms. Cathcart agreed.

Mr. Smith, in response to Senator Porter’s earlier question, said the electronic authorization is a voice recording where the carrier will actually record the subscriber verbally authorizing a change. He continued, with regard to proactive steps Senator Porter inquired about, the local carriers provide for "pic freezes" (preferred inter-exchange carrier freezes) where the local carrier has attached to a particular line an order from a customer not to change the carrier unless that specific customer authorizes a change.

Senator Porter inquired if the electronic authorization would include e-mail. Mr. Smith said it was his understanding it would have to be a voice capture.

Stephanie Tyler, Lobbyist, Nevada Bell, said Nevada Bell currently has a stipulation with the Public Utilities Commission of Nevada (PUCN) that does not allow, or very highly limits the areas in which Nevada Bell may advocate or suggest to a customer that they might want to consider a "pic freeze."

Kent Anderson, Associate Director, Industry Relations, Nevada Bell, said Nevada Bell only has two instances where it can proactively offer a "pic freeze." One instance is when a customer asks the definition of "pic freeze" and how they can get it. The second instance is when a customer has been "slammed" and asks if there is a way of preventing "slamming" again in the future. Mr. Anderson said the stipulation between Nevada Bell and the PUCN prevents Nevada Bell from proactively soliciting "pic freezes." He continued at the time of entering into the stipulation, "slamming" and "cramming" were not big issues. Mr. Anderson said Nevada Bell would like the opportunity to offer a "pic freeze" when appropriate. He suggested it could be done at the time of a new order or when a customer calls in with a problem. He furthered the offer of "pic freeze" could also be available through customer notification.

Chairman James asked if this was something the Legislature could change since Nevada Bell has stipulated with the PUCN. Mr. Anderson replied this matter may have to be addressed in a separate venue. Ms. Tyler said Nevada Bell would be glad to do some research on this issue.

Senator Washington inquired as to the cost of a "pic freeze" to a consumer. Ms. Tyler and Mr. Anderson both replied there is no charge to the customer.

Chairman James asked Ms. Tyler if she was in agreement with the attorney general’s changes. Ms. Tyler said these changes are exactly what Nevada Bell agreed to and pointed out Mr. Smith did a good job of presenting the changes.

Margaret A. McMillan, Lobbyist, Sprint, said she did not believe Sprint has a restriction on "pic freezes" and can offer it to customers who have had a problem. She urged the committee to keep in mind the telecommunication industry has recently become competitive. She stated until the break-up of the Bell System, long-distance service was only offered by AT&T. Ms. McMillan stated the federal government has been involved with the recent passage of a local competition act and wants to make it as easy as possible for competitors to compete. She continued that is one of the reasons changes can be made over the telephone and why the PUCN was concerned about the "pic freeze." She added having a "pic freeze" on all telephones would make it difficult for the other long distance carriers to compete and while the "pic freeze" is a protective device, it also limits the customer’s choice so it makes it more difficult for them to make a change.

Senator Titus said competition and deregulation can often have unintended consequences. She stated she could see the Legislature addressing some of these same types of telecommunication problems in a few years with the deregulation of energy companies.

Senator Porter inquired if "pic freeze" could be solicited with the PUCN stipulation in effect. He said he believed "pic freeze" must be offered if there is a change by the company and, if possible, to make sure it is one of the principals of a business who makes the request if a business is involved.

Ms. McMillan said she recognized the problem, but was not sure how it would be handled. Senator Porter said the testimony indicated the carriers should ask the question, "Do you have the authority to make this change?" Ms. McMillan said it is her understanding that question is now being posed and if a person indicates they are authorized to make the change, the carrier assumes that is correct. She stated the problem is being able to verify the person is actually who he says he is. Senator Porter suggested when someone signs up for service, the long distance carrier should ask who are the principals authorized to make changes.

Clayton D. Johnson, Lobbyist, GTE California Inc., said GTE offers "pic freeze" and also agrees with the attorney general’s changes to S.B. 485.

Chairman James stated there were a couple of things to work out on the penalties and identity issues of S.B. 485, and furthered that Mr. Wilkinson needs to work on the "pic-freeze" issue. There being no further testimony, Chairman James closed the hearing on S.B. 485 and opened the hearing on S.B. 327.

Helen A. Foley, Lobbyist, World Gaming Network, said S.B. 327 deals with the criminal repository which is a central clearinghouse location from which law enforcement agencies can retrieve criminal records and information on people in a swift and effective manner. She indicated several legislative sessions ago NRS 179A.100, section 1, subsection 3, was changed by allowing prospective employers to receive information about criminal history, specifically convictions, and whether a person is within the criminal justice system, including parole and probation. She pointed out NRS 179A.100, section 1, subsection 4, refers to receiving information relating to sexual offenses concerning an employee. Ms. Foley said she has seen in the last several years a real interest on the part of employers to obtain as much criminal information as possible about a prospective employee, mainly because of major lawsuits that have occurred. She stated World Gaming Network follows stringent guidelines of the Fair Credit Reporting Act, which is not just credit reporting but is really consumer information. She added the new reporting is the Consumer Reporting Employment Clarification Act of 1998 and has many safeguards.

Julie Hackman, General Manager, World Gaming Network, said World Gaming Network operates as a consumer reporting agency. She explained any consumer reporting agency operates under the regulations and requirements of the federal government with respect to the Fair Credit Reporting Act. She stressed the Fair Credit Reporting Act governs all consumer reports and/or access to those reports, how the reports are obtained and disseminated, and in what fashion a consumer reporting agency can do that function. She continued World Gaming Network would require anyone wanting to obtain information from the state repository to also follow all the federal requirements of the Fair Credit Reporting Act.

Ms. Foley interjected about 95 to 98 percent of all trucking companies utilize World Gaming Network’s services because they realize the importance of hiring people who have been properly screened. She referred to NRS 179A.110 (Exhibit D) which provides that the requested information can only be shared with the one employer and any new information would have to be retrieved each time for new employers thus guaranteeing accurate and up-to-date information. Ms. Foley requested "or authorized agent" be added to S.B. 327 on page 2, line 5, after the word "employer."

Senator Care asked how "authorized agent" is determined. Ms. Foley replied authorization would have to be through a letter from the employer. Senator Care pointed out there would be no duty to verify the letter is legitimate. Ms. Hackman stated the Fair Credit Reporting Act addresses that issue requiring the consumer reporting agency have a contract with the employer.

Chairman James suggested amending NRS 179A.110 in order to accomplish World Gaming Network’s intent. Ms. Foley asked Chairman James if he had some suggested language.

Mr. Wilkinson said NRS 179A.110 provides the information cannot be disseminated further "without express authority of law." He stated he was not sure how that phrase would be interpreted if the change to S.B. 327 is added, but the sentence could be changed to dissemination of material not being prohibited by an authorized agent.

Chairman James pointed out the suggested amendment would also cover the concern of creating a database that could be used in the future.

Senator Washington said he was aware of several self-insured groups providing this type of service and wondered aloud if this legislation would have an adverse effect on the services currently being provided to the members of the self-insured groups. Ms. Foley said those services could be provided if authorization of the employer is granted.

Kara Kelley, Lobbyist, Las Vegas Chamber of Commerce, expressed her continued support for efforts by the Legislature to enhance the ability of employers to make positive hiring decisions.

Amy Halley Hill, Lobbyist, Las Vegas Chamber of Commerce, and Retail Association of Nevada, expressed her support for S.B. 327 and indicated to Senator Washington this bill is a positive opportunity for the issue he addressed as well as for all employers in the state.

Dennis Debacco, Supervisor, Central Repository for Nevada Records of Criminal History, Department of Motor Vehicles and Public Safety, said if S.B. 327 were to pass, NRS 179A.110 would certainly have to be amended to accommodate the secondary dissemination of information. Mr. Debacco stated some model federal legislation was previously brought forward that was used as a basis to create NRS 179A.100. Without significant operational and legal review of existing NRS chapter 179A and various existing privacy laws which are imposed on the criminal history records repository, Mr. Debacco said, he was not sure the state would not be setting itself up for problems in the interim.

Chairman James asked if under the federal compact all the repository records were being networked to make them available to people for civil/noncriminal purposes under certain standards. Mr. Debacco replied yes, under certain circumstances where it is authorized by a specific Nevada statute. Chairman James said NRS 179A.110 would prevent someone from creating their own database to sell and if S.B. 327 passes, NRS 179A.110 would be amended to make sure the information could be passed on to the employer, but a database could not be created.

Mr. Debacco said that was one of his original concerns, too. He stated he fields many calls during the course of a week relating to people who want to serve as an intermediary to receive information from him. He indicated under the existing law he cannot release the information to anyone other than directly to an employer requesting the information. He continued oftentimes he is called to testify on employment decisions that have been made based upon a criminal history record whereby he has to certify the information he previously provided is a true and original copy.

Chairman James asked Mr. Debacco if adding language that a person is required to pass on a true and correct copy would address his concern. Mr. Debacco said it might, but knowing what the record consists of today it could be altered very easily and blended with other consumer information. Mr. Debacco said the term "authorized agent" is very broad and vague. He stated he has had numerous calls from private investigators who are conducting various investigations in child-custody issues, divorce proceedings, and the like. Mr. Debacco stressed S.B. 327 warrants further discussion and consideration as to whether or not this is the direction in which the state wants to go. He pointed out according to the provisions of NRS 179A.100, the information is being released directly to the person who is making the regulatory employment decisions without intermediaries. Mr. Debacco said he would feel more comfortable if "agent" could be defined in statute.

Chairman James said he did not have a problem with changing the word "agent" to some other word and defining it as a company that is retained to compile information for an employer specifically for an employment decision.

Mr. Debacco said he was also concerned about the logging requirements in NRS chapter 179A which are imposed upon criminal-justice agencies. He furthered some logging considerations also should be imposed on the intermediary agent that if they release information it can be tracked and accounted for where it went.

Chairman James suggested limiting the bill to people acting on behalf of an employer to assist in compiling information for an employment decision. Chairman James disclosed that Ms. Foley has worked on his campaigns for a number of years, but he did not think that affected his impartiality and did not disqualify him from voting on S.B. 327.

Misty R. Grimmer, Lobbyist, Nevada Resort Association, said the Nevada Resort Association supports S.B. 327.

Lucille Lusk, Lobbyist, Nevada Concerned Citizens, said after hearing the testimony on S.B. 327 her concerns are heightened rather than lessened. She agreed with Mr. Debacco that the phrase "authorized agent" was rather broad as it could mean an individual or a company. Ms. Lusk stated the bill does not provide authorization would have to be done by letter, therefore verbal authorization could be claimed. She continued she is very concerned about the involvement of the Fair Credit Reporting Act because she has seen so many problems with credit reports being erroneous.

There being no further testimony, Chairman James closed the hearing on S.B. 327 and opened the work session.

Senator Washington referred to the work session document (Exhibit E.). amendments to the three concealed weapons bills (S.B. 420, S.B. 449, and

A.B. 166) were proposed by the National Rifle Association and were agreed upon by the sheriff’s association.

Chairman James asked for a motion on S.B. 420.

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Senator McGinness said the commercial airport prohibition should not be in the bill. He stated people can go into certain areas, but if they go beyond the ticketed area there are the metal detectors, so he is opposing the amendment omitting the right to carry concealed weapons in commercial airports.

Senator Washington said the subcommittee reserved the right to raise this issue in the full committee for consideration. He said he was leaning towards Senator McGinness’ feeling on this issue, but since McCarran International Airport already has its own security measures in place he would vote for A.B. 166 as amended.

Senator Wiener stated she was supporting the bill in committee, but reserved the right to reconsider on the floor because she thinks some of the conditions of A.B. 166 should be more absolute.

Chairman James suggested amending the motion as it seemed the sub-committee did not want the amendment prohibiting permitees from carrying concealed weapons in commercial airports.

Senator Titus said she wanted the amendment because McCarran International Airport expressed concern about security at airports. Chairman James said he understood the bill would prohibit permitees from carrying concealed weapons in commercial airports because of the provision prohibiting concealed weapons any place where there is a sign prohibiting such or where there is a metal detector.

Senator Care said the subcommittee testimony was that metal detectors at every public entrance would be impractical and signs would be impractical because nobody would notice the signs at an airport. He continued the testimony also indicated that federal regulations prohibit weapons beyond the metal detectors.

Chairman James stated the amendment would be left as it stands in the motion. Senator Washington said that Assemblyman Lynn C. Hettrick, Douglas County, Carson City Assembly District No. 39, also opposed the amendment.

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Ben Graham, Lobbyist, Clark County District Attorney, said a determination was made to list all controlled substances, with the addition of marijuana, which are illegal to consume; and if a person was driving with any of the listed controlled substances in their system and did not have a valid prescription, that would be a violation.

Chairman James asked then if the list from NRS 484.385 would not be limited. Mr. Graham stated that was the determination made. Chairman James indicated not limiting the list of controlled substances would create problems. Mr. Graham said he would take this matter under reconsideration and return to the committee during a future work session.

Chairman James asked for a motion on S.B. 512 with the amendment to allow county clerks to charge a fee for the correction or replacement of a marriage certificate.

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Chairman James said as much as he feels it is important to protect children in arcades, he thinks S.B. 513 is going to create more problems than the bill addresses. Chairman James asked for a motion to indefinitely postpone S.B. 513.

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Chairman James asked for a motion on S.B. 515 to amend as outlined in the work session document (Exhibit E) and do pass.

Senator Titus asked if the amendment changing the age of a child under definition of sexually violent offense from 12 years of age to 16 years of age was for violent offenses only. She was concerned this amendment would change the statutory rape statute.

Chairman James said he had the same concern as Senator Titus with the amendment and asked Mr. Wilkinson for a legal opinion. Mr. Wilkinson replied this amendment would change the statutory rape statute. Chairman James stated the committee would not include the amendment pertaining to the age of child under definition of sexually violent offense in its vote on S.B. 515 and would only include the amendment pertaining to definition of "crime against a child" and "offender convicted of a crime against a child."

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Chairman James stated his law firm represents numerous homeowners’ associations which S.B. 192 could negatively impact, as well as several homeowners in prominent homeowners’ associations which this bill could help. For these reasons, Chairman James said he would not participate in the consideration, discussion, or voting on S.B. 192.

Harvey Whittemore, representing Glenbrook Property Owners for Fairness, stated Senator Rawson agreed to take out the provisions in S.B. 192 regarding the removal of being able to vote by proxy. He said with the addition of section 3, subsection 1, appropriate changes would have to be made with respect to the "whereas" clauses on page 1. He pointed out the additional amendments set forth in the work session document (Exhibit E). Mr. Whittemore said there is a concern that associations are objecting to residential uses of property within the planned community even though those uses are consistent with local zoning codes, especially if those properties are not units of the association.

Senator Porter asked how one association has control over a gate into an entire community. Mr. Whittemore said the homeowners’ association controls the gate even though it is part of a planned community that does not have all members within it. Mr. Whittemore said a homeowner may live within a gated community and not be a member of the homeowners’ association.

Chairman James interjected he needed to clarify his earlier statement of not participating in the hearing on S.B. 192 in that he was going to vote on the original bill, but he will not vote on S.B. 192 with the amendments proposed by Mr. Whittemore because it is the amendments that create a conflict. Chairman James turned the hearing on S.B. 192 over to Vice Chairman Porter.

With regard to the third new section of the amendment to S.B. 192 set forth in Exhibit E, Mr. Whittemore said the boundaries are established by covenants, conditions and restrictions (CC&Rs). He said he did not want a situation where the association controls property and decides to impact nonmembers and other people’s private property rights.

Vice Chairman Porter asked how an impacted property owner is defined. Mr. Whittemore replied a property owner within 500 feet of a proposed facility is an impacted property owner.

Senator Titus asked if a community master plan can be changed without a zoning change. Mr. Whittemore said changing the master plan of a community requires a formal process.

With regard to the amendment of NRS 116.31036, subsection 2, in Exhibit E, Mr. Whittemore said many board members engage in conduct which creates attorney fees, problems and damages to the association, and then bills those expenses to the full members of the association. Mr. Whittemore said he believes if attorney fees and awards are the result of a self-interest those individuals should be responsible for the fees, not the entire board or the association.

Senator Titus pointed out all of these amendments virtually result in a whole new bill from the original S.B. 192 introduced to the committee and is obviously directed at the Glenbrook community. She asked if all members of the community are aware of the bill being proposed.

Mr. Whittemore said some individuals have been notified and he represents many members of the community. He said these matters have been discussed in other significant hearings and the people in attendance felt this bill was an appropriate vehicle for what needs to be accomplished. He stressed the sponsor of the bill also felt it was appropriate to present the issues to the committee in the form of an amendment.

Vice Chairman Porter suggested holding this matter over until the next work session as there were a few things that had not been addressed in the original bill.

Vice Chairman Porter passed the gavel to Senator McGinness because of the conflict mentioned in the earlier hearing on this bill. Senator McGinness pointed out the amendments to S.B. 380 were outlined in the work session document (Exhibit F). Senator McGinness said he hoped the construction defect bill in the commerce and labor committee could address some of the issues of S.B. 380. Senator McGinness asked for a motion to amend and do pass S.B. 380.

Senator Care said he was concerned with the makeup of the screening panel and the drop-dead date for litigation to commence if there was no report issued by the screening panel within a specified amount of time.

Senator Wiener expressed concern in having two proceedings going on at one time as to the reality and the legislation being proposed.

*****

Senator Care commented he voted for S.B. 380. He was uncomfortable with creating another screening panel, however he understood there was another bill which contemplates something similar to this bill.

There being no further business, Vice Chairman Porter adjourned the meeting at 11:25 a.m.

RESPECTFULLY SUBMITTED:

Janice McClure,

Committee Secretary

APPROVED BY:

Senator Mark A. James, Chairman

DATE: