MINUTES OF THE meeting
of the
ASSEMBLY Committee on Health and Human Services
Seventy-First Session
April 11, 2001
The Committee on Health and Human Serviceswas called to order at 1:30 p.m., on Wednesday, April 11, 2001. Chairman Ellen Koivisto presided in Room 3138 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mrs. Ellen Koivisto, Chairman
Ms. Kathy McClain, Vice Chairman
Mrs. Sharron Angle
Ms. Merle Berman
Mrs. Dawn Gibbons
Ms. Sheila Leslie
Mr. Mark Manendo
Ms. Bonnie Parnell
Mrs. Debbie Smith
Ms. Sandra Tiffany
Mr. Wendell Williams
COMMITTEE MEMBERS ABSENT:
Mrs. Vivian Freeman
GUEST LEGISLATORS PRESENT:
Assemblywoman Barbara Cegavske, District 5
Assemblyman David Humke, District 26
Assemblyman David Parks, District 41
STAFF MEMBERS PRESENT:
Marla McDade Williams, Committee Policy Analyst
Darlene Rubin, Committee Secretary
OTHERS PRESENT:
Toni M. Weeks, Detective, Las Vegas Metropolitan Police Department
Chris Bunn, Detective, Las Vegas Metropolitan Police Department
Captain Jim Nadeau, Washoe County Sheriff’s Office
Louis Ling, General Counsel, State Board of Pharmacy
Nancy Bukar, Counsel, Consumer Healthcare Products Association
Pete Krueger, State Executive, Nevada Petroleum Marketers & Convenience Store Association
Mary Lau, Executive Director, Retail Association of Nevada
Samuel McMullen, Retail Association of Nevada
Gemma Waldron, Deputy District Attorney, Washoe County
Alex Haartz, Deputy Administrator, State Health Division
Randall Todd, State Epidemiologist
Jim Spinello, Clark County
Chairman Koivisto announced the committee would start as a subcommittee and opened the hearing on A.B. 387. She invited Assemblywoman Barbara Cegavske to introduce her bill.
Assembly Bill 387: Makes various changes concerning certain immediate precursors to controlled substances. (BDR 40-101)
Assemblywoman Barbara Cegavske, representing Clark County District 5, reported that in June 2000 she participated with law enforcement in an activity day, or a “sting,” where the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS), Las Vegas Metropolitan Police Department (LVMPD), State Board of Taxation (SBT), and the Drug Enforcement Agency (DEA) had planned for one year to investigate businesses that were selling illegally out of the back door a product that was an ingredient in methamphetamine. At that sting, there had been 11 federal warrants and 7 to 8 arrests.
Ms. Cegavske explained she became interested in the issue because there had been a drug manufacturing operation in one of the homes in her district where there were small and older children present. At the sting they had found the methamphetamine stored in the refrigerator along with the food. She was also horrified to discover the children walked barefoot in the house where drug dust and particles filtered onto the carpet and floors and were absorbed in the children’s skin. She said the most upsetting discovery was that the rubber nipple on the baby’s bottle had absorbed the methamphetamine. When the children were first brought in their reactions might have been attributed to being taken away from their family, but in fact could have been caused by withdrawal from the drug. It was that situation, she said, that prompted her to ask LVMPD what could be done to keep drug ingredients from being so accessible.
Methamphetamine was one of the fastest, cheapest, and most dangerous drugs to manufacture, the easiest to sell, and debilitating to users. “Meth” use among teenagers had doubled in Nevada.
Assemblywoman Cegavske said A.B. 387 would help in fighting the methamphetamine manufacturing. Surrounding states all had passed similar legislation and because of that those suppliers had to move to a state that did not have such laws. They chose Nevada, a ripe, accessible state where they were able to move in and set up operation.
Ms. Cegavske noted several people had worked on developing the bill and the amendments and they would be testifying.
Toni Weeks, Detective, Office of Intergovernmental Services, Las Vegas Metropolitan Police Department (LVMPD), and also representing the Nevada Chiefs Association, expressed support for A.B. 387 and the proposed amendments.
Next to speak was Chris Bunn, Detective, Narcotics Division, LVMPD, who reported the bill had been brought forward in order to deal with the primary source of chemicals being used to manufacture methamphetamine in Nevada. Investigation revealed that multiple chemicals were used in the manufacture of methamphetamine. The common threads throughout the entire process were the chemicals pseudoephedrine, ephedrine, and phenylpropanolamine (PPA). The bill was designed to place constraints on products containing those particular chemicals in order to prevent the illegal sale, but still allow persons with a legitimate need to have access to those products. The products were simply a head cold medication, a bronchial dilator to open up the sinuses. A way was needed to restrict the bulk quantity sales of those products. Case quantity sales occurring throughout the state had resulted in profit margins in excess of $3,000 a case. When California, Arizona, and Utah placed restrictions on those same precursor chemicals, the manufacturers came to Nevada to purchase large quantities of the ephedrine-based products that were then shipped to California.
Further, Mr. Bunn reported, the criminal elements from southern California and Utah had come to Nevada in order to conduct a gray market business in the diversion of the chemicals. There were no laws on the books to help law enforcement deal with the problem. Regardless of the process used to manufacture methamphetamine, the ephedrine-based product was the key ingredient. Restricting the bulk sale of those products was the only way to attack the problem effectively.
Mr. Bunn noted the sponsors had worked diligently to develop a bill that would allow the legitimate retailers to conduct business throughout the state but place restrictions that would inhibit the manufacturing of methamphetamine across the state.
In 1999 there were 521 methamphetamine labs responded to in Clark County, in 2000 there were 421; more than one lab a day just in the Clark County area. The rest of the state had to fight those same problems.
Mr. Bunn provided a packet of photographs (Exhibit C) of an operation where they served a search warrant. Depicted in the first photo were open cartons of pseudoephedrine bottles and “Maxbrand” pseudoephedrine-based products. The second photo, of the same store, showed the pseudoephedrine bottles displayed in the front counter. The third photo of the bed of a pickup truck located at a lab site contained large quantities of pill bottles and a product called “Heet” which was the chemical used to extract the pseudoephedrine from the pill format to convert it into methamphetamine. In the bottom photo on the same page was a trash bag filled with Sudafed as well as the store brand of a similar product. The fourth page, top photo depicted open cases of pseudoephedrine, and the bottom photo, a stovetop with a pan containing a white product “boiled off” to recover the pseudoephedrine back into its primary 100 percent pure form for manufacture into methamphetamine.
Mr. Bunn said they had tried to find a way to deal with the criminal element but not impact retail negatively. Many people commonly used those products in question on a daily basis.
Mr. Bunn then displayed samples to illustrate the quantities spoken of: to produce a single gram of pseudoephedrine took 17 tablets, 60 milligrams each. The conversion rate was approximately 80 percent. One gram of pseudoephedrine produced .8 grams of methamphetamine. Next, he displayed a 4-gram quantity, or 68 tablets, which would be more than a person would normally buy as a legitimate user. The 10-gram package, 166 tablets, would be in excess of what could legitimately be possessed based on the proposed legislation and amendments. The prescribed medication was one tablet every four to six hours, not to exceed four dosage units in a 24-hour period; the 10‑gram package was more than a 40-day supply. Mr. Bunn stressed they were not targeting someone who had a head cold but people who had excessive quantities in possession.
Chairman Koivisto asked if they went to warehouse-type outlets, like Costco, where she had purchased Sudafed in a huge package. Mr. Bunn said those packages contained less than 3 grams of pseudoephedrine-based product; there were 30-milligram dosage units in those bulk packages. The packages in his sample contained 60-milligram tablets. There could be a large volume of tablets but the actual amount of medication inside each pill would be a smaller amount, thus, a person would not be in violation for the purposes of the proposed legislation.
Mr. Bunn reported what they discovered in the retail market was that most of the individuals involved rented approximately 1,000 square feet of floor space in a strip-type mall, put in some cigarettes, and then ordered pseudoephedrine in case quantities and sold it out the back door. That was the type operation they had trouble dealing with because they were selling case quantities and the profit margins were extremely high. A case of the pseudoephedrine from wholesaler to retailer was approximately $1,600 to $1,800, and someone in an undercover law enforcement capacity spent between $4,000 and $4,500 to buy it out the back door of the business. If those business owners only sold three cases a month out the back door, they had almost a $9,000 profit margin per month of unreported sales. Those individuals created a false business in terms of being able to import large quantities of pseudoephedrine into the state and sell it back into the community to be used for manufacture of methamphetamine, or transship it into California, or they had dealers from California drive into Clark County or Reno to purchase those products and return to the other states.
Vice Chairman McClain asked Mr. Bunn to confirm his statement about the 521 meth labs. Mr. Bunn said it was 521 meth labs they had responded to during the calendar year 1999, for the entire Clark County. In 2000 it had been 421. Also, Ms. McClain asked about the storefronts where they sold a few cigarettes and nothing more; she thought there were some in her district.
Assemblyman Manendo asked how many boxes of product one could possess before going over the allowable limit. Mr. Bunn said three boxes would be within the legal limit; each box contained enough medication to last from five to seven days, the recommended length of time to be on the medication according to the Physician’s Desk Reference. Mr. Manendo asked if buying a fourth box would then be a Category D Felony, punishable by one to four years in prison. Mr. Bunn said that was correct. Mr. Manendo said just last weekend he bought four boxes because it was on sale. Mr. Bunn noted that part of the amendment would restrict that sale so that buying the fourth box would not have been allowed. There would have been a restriction at the retailer level.
Mr. Manendo asked if the clerk was then responsible for policing what people bought, like Sudafed. Mr. Bunn said it was incumbent on the retailer. Mr. Manendo asked who would administer the program and what would the liability be if someone slipped through. He felt criminalizing someone for four boxes of Sudafed to be unreasonable. Mr. Bunn said they were trying to work out a reasonable level. The legislation was based on “safe harbor packaging” as proposed by the federal government. The restrictions would fall back down to nine grams as the legal limitation and fall into reporting categories at a federal level as of October 1, 2001.
Mr. Bunn reiterated that the intent was to stop those people who were conducting a criminal enterprise, who had created a gray market business where they were making millions of dollars and proliferating a methamphetamine problem within the community, and at the same time find an acceptable way to allow people to use a medication they needed.
Mr. Manendo again asked if the Category D Felony would apply to the customer as well as the clerk. If they were knowingly in violation, Mr. Bunn said it would. Mr. Manendo asked if he intended to do a public campaign to let people know four boxes of Sudafed got the possessor or the seller one to four years. Also he wanted to know if there was a fiscal note on the bill.
Chairman Koivisto announced there was now a quorum in the committee.
Assemblywoman Smith said she understood the concern and hoped it would be resolved appropriately. She offered the scenario that if she had a box in her purse, one in each of her three bathrooms, and one in her car she would be over the legal limit, however, if she did not have a meth lab that would never be an issue. She was more concerned about how the point of sale was managed and how to protect those who were doing the right thing. She asked Mr. Bunn what had been found in other states’ legislation.
Toni Weeks responded first to the question of how it would be controlled, which Mr. Manendo had also raised. Currently, she said, cigarette and alcohol sales were controlled and it was a training situation for the retailers and their employees. It was hoped that pseudoephedrine could be similarly controlled. The employer/retailer would have training on what and how much could be sold, and they would have limitations. If the employees continued to sell in excess of those limits, then law enforcement would have to deal with that person. Currently in cases of alcohol stings, when a sale was made to someone under 21 years of age, the seller was given a citation. In the case of pseudoephedrine, the penalties would be more stringent. What typically happened was that the employer fired the clerk. If it was a first offense and the clerk was unaware of the law, then the employer would be responsible.
Mr. Bunn reported that currently in California the limit was three packages or 9 grams. In Utah it was the same, and Arizona was in the process of adjusting their statute. Arizona had some legislation in place but he was not familiar with the nuances. Most states, he added, were going to 9 or 12 grams as the legal limit. Mrs. Smith asked how long Utah and California had had their laws. Mr. Bunn said since 1999 in California, and 2000 in Utah.
Assemblywoman Parnell asked about Section 3. She felt the discussion was centered primarily around purchasing, however, in that section the word “possess” was used; that it was “unlawful for a person to possess 10 grams or more.” She thought that word should be “purchase,” because “possess” was an entirely different interpretation. Mr. Bunn said the use of “possess” was intentional because they were attempting to target individuals who were in possession of large quantities of pseudoephedrine, who extracted the pseudoephedrine from the binding agent to turn it into methamphetamine, or who brokered those chemicals for that purpose. That would cover not only those who were actively involved through a storefront-type sales operation, but also those individuals who were in possession of it in transit to a lab location.
Mr. Bunn noted there was also concern regarding the person in a residence having more than 10 grams, and subsection 5, Section 3, page 6, stated, “any person in his home residence who possesses a combination of products containing ephedrine, pseudoephedrine, or phenylpropanolamine, under circumstances consistent with typical medical or household use would be exempt from the 10 gram limitation.” Accordingly, that would protect those people who had accumulated over time in excess of the 10 grams. Those people, he added, were not the problem in the community. The problem people were those who were bringing a criminal element into the communities and proliferating the manufacturing process that had a great impact on man-hours on the law enforcement side and the cleanup costs of the lab sites, which came out of the fiscal budgets of law enforcement agencies as well as the state. He cited, too, the by-products of meth labs like the recent fire on the 18th floor of a condominium that was completely destroyed, as well as damage to other homes and facilities that were closed to business for extended periods of time.
Ms. Parnell returned to the idea that the word “purchase” should be somewhere in the proposed legislation. She felt it needed to be identified that the act of attempting to buy in excess of the stated limit was unlawful as well.
Mr. Manendo referred to the comment that there was in statute a penalty for someone who sold a product to a minor, with a fine of $100 imposed, but compared to the proposed legislation, with its one-to four-year sentence and a fine of up to $10,000, noted it was a significant difference. Mr. Manendo then asked Assemblywoman Cegavske if she asked for a fiscal note on the bill. Mrs. Cegavske said she had.
Vice Chairman McClain asked if there were other drugs that were legal to purchase in small amounts but illegal in quantity, that could be used to manufacture other controlled substances, and that also should be included in the bill. Mr. Bunn said the chemicals addressed in the bill strictly pertained to methamphetamine. He was unsure if there were other drugs being purchased in large quantities that could be used to manufacture other illegal substances. He added there were very few other drugs like methamphetamine that could be manufactured in the home from easily available products, and that made it unique and very difficult to deal with from a law enforcement standpoint. Most of the precursor drugs used to manufacture such drugs as PCP were controlled at the federal and state level.
Assemblywoman Tiffany asked if the drug had been around and would continue to be around a long time. Mr. Bunn responded that methamphetamine had been present in the communities since the late 50s or early 60s, but it could be traced back to World Wars I and II. It would continue to be present as long as people were able to manufacture it. The proposed legislation would not stop the manufacturing process but simply made it more difficult for individuals to obtain the chemicals to produce the product. Ms. Tiffany said she wanted to make sure a statute was not created for a transitory problem. Mr. Bunn assured her that was not the case. As the drug’s popularity continued to spread to the east coast, dealing with the problem was a major item on the federal agenda.
Assemblywoman Cegavske asked Detective Bunn to describe the amount of product collected at the time of the sting she participated in, the cost to the counties to dispose of it, and what it did to the environment. Mr. Bunn reported the cost to the communities for every meth lab was $500 to $700 to dispose of the hazardous waste. In some cases, where chemicals used in the manufacturing process were dumped in the ground, the contamination had cost property owners over $180,000. In the warrants served in the case mentioned, the storage facilities had to be rented and because of the quantity of chemicals it fell under the Regional Groundwater Control Act standards and for that reason had to be transported to Phoenix to be held for evidentiary purposes, and ultimately destroyed in a Phoenix location. Those costs were paid for out of local budgets.
Vice Chairman McClain commented that she would much rather pass legislation to make it more difficult for the meth labs to get started than to get rid of them once they had been identified.
Captain Jim Nadeau, Washoe County Sheriff’s Office, and also representing the Nevada Sheriffs and Chiefs Association, remarked that passing the legislation was a difficult decision for the committee just as it was difficult for himself and others to ask to impose some of those restrictions, because he understood there was some impact on the community. However, methamphetamine was a devastating drug; it was devastating to the person addicted to it, and cost hundreds of thousands of dollars per year for law enforcement to cleanup after the labs because of the hazardous materials associated with the manufacture. Further, there was a tremendous impact of millions of dollars on property owners whose property was rented by manufacturers, who not only damaged the property but dumped toxic chemicals down the drains and into city sewers or septic tanks. It created huge health and safety problems, and the property owner was the one who had to pay to clean it up.
Captain Nadeau explained it was not a simple matter of seeing Sudafed on the shelf and asking why were we targeting that company. It was much larger and more far-reaching. Washoe County had 55 to 60 labs last year, and about the same the year before. The Health Department handled the cleanup at a cost of tens of thousands of dollars. He said that in the beginning a product called Ephedrine was used in the manufacture and consequently controls were placed on that product. In order to bypass those controls, the drug manufacturers went to the pseudoephedrine. What evolved was that law enforcement had to go after a legalized product used in an illegal fashion. He reiterated that the bill proponents understood there was an impact on retailers and others, and they would not cavalierly ask for sanctions or controls on an enterprise unless they believed it was truly necessary. However, law enforcement saw on a daily basis the effects of methamphetamine on people, on communities, and the costs associated with it, and they felt the proposed legislation was a small price to pay to reduce the major problem of manufacturing the drug. Taxpayers were paying the cost. The surrounding states had already imposed those types of restrictions. As a result, Nevada had become the discount or local supplier for the products. In closing, Captain Nadeau urged support and passage of A.B. 387.
Assemblywoman Smith asked if Captain Nadeau was aware how the legislation had worked in California or Utah, particularly had significant problems been experienced with the sale issue. Captain Nadeau said he had attended a seminar in Henderson last year, which law enforcement people from California also attended, and they told him they had been able to track the purchase of the precursor chemicals back to Nevada. Mrs. Smith felt the committee was concerned about the training issue and asked if those law enforcement people from California had indicated any problems with clerks. Captain Nadeau believed the representatives of the retail association could better answer that question.
Next to speak was Louis Ling, General Counsel, Nevada State Board of Pharmacy. He advised that the Board of Pharmacy had been involved in the proposed legislation initially because, in the original bill, there was language about precursors and how the board would be determining what those precursors were. The language had since been changed as reflected in the 11‑page amendment document (Exhibit D) that had been negotiated with himself, Mr. Bunn, and Ms. Bukar, who represented the manufacturers of most of the products at issue. Mr. Ling explained that Ms. Bukar, who would speak shortly, knew more about the national efforts than anyone because she had been involved in a similar process in states across the country.
Mr. Ling stated the amendments put Nevada in line with the national trend that seemed to be forming around limiting the sale of the precursor products to three packages, or a total of 9 grams. That seemed to be the national consensus among states. Mr. Ling discussed the amendments as follows:
Assemblywoman Smith commented that the term “three packages” had been used several times and she wanted to clarify that meant three packages of the largest quantity, not three packages of 12 pills each. Mr. Ling said it was any three packages in a single transaction. It would be possible to buy three packages and return later and buy three more, so the legislation was not limiting the consumer’s access if they needed more. Mrs. Smith said she meant the difference between three less expensive packages purchased at a convenience store, for example, or three larger quantity packages purchased at Costco.
Mr. Ling returned to discussing the amendments:
· Page 5 contained the criminal penalties imposed for sales, and the Category B and Category D felonies that had been discussed earlier. Mr. Ling believed the penalties were set high because by the time an offender had crossed those lines, i.e., selling more than 9 grams or 60 grams, the purchaser was not intending it for legitimate household use, rather for drug manufacture. The reasoning was if the finished product was a felony, the purchase of the precursor products should also be a felony. If either act was a misdemeanor then it would be very difficult to get law enforcement involved. It would not be worth the effort to try to prosecute those cases.
Assemblyman Manendo referred to Mr. Ling’s comment about it was not worth trying a case if the crime was a misdemeanor, and asked Mr. Ling if he had been involved in the legislation involving the $100 fines on store clerks who sold tobacco to minors. Mr. Ling had not. Mr. Manendo then asked if the product Tagamet was one of the precursor drugs. Mr. Ling said it was not.
Mr. Ling continued with the amendments:
· Page 5, subsection 3, was an exemption for pediatric products; the dosage was so low that as yet it was not seen being used to manufacturer methamphetamine. Also, as a matter of public policy, no one should try to treat children with adult doses so the child dosage had to be made available.
· Page 5, subsection 5 covered the circumstances under which a person could possess quantities of the subject drugs in their residence and be exempt from prosecution.
· Section 6, subsection 1 allowed the Board of Pharmacy to discipline a pharmacy, wholesaler, manufacturer, and so on, which failed to comply with the bill. Subsection 2 allowed the Board of Pharmacy to waive the suspension or revocation of a license, or a fine under the bill, if the party concerned acted in good faith to prevent violations.
· Section 7 contained the preemption language.
· The remaining sections harmonized the existing law with the proposed legislation.
Next to speak was Nancy Bukar, State Government Counsel to the Consumer Healthcare Products Association (CHPA), whose members included Johnson & Johnson, Pfizer, American Home Products, and most common medicine-cabinet products. Ms. Bukar explained that in 1996 when the federal government passed the Methamphetamine Control Act, CHPA members made a decision to package all of their cough and cold products containing pseudoephedrine, ephedrine, and PPA in the safe harbor packaging. All products were packaged no more than 2 tablets per blister, no more than 3 grams base per product, or in a liquid no more than 3 grams base per product. A box of Sudafed, or one of the generic pseudoephedrine products that was 96 count, the largest made by CHPA members, was 2.88 grams.
Ms. Bukar said that unfortunately CHPA had been involved in the methamphetamine issue since its infancy because members’ products were used in the manufacture of the illegal drug. They had, therefore, taken affirmative steps to work with the Partnership for a Drug Free America, contributing over $3 million to their campaign to fight the methamphetamine problem, as well as conducting retail seminars in seven to eight states to educate the retail community about what they could do to fight the problem. So far this year, she reported, she had been in Washington eight times, Arizona twice, Missouri twice, Nebraska twice and Oregon once, working on precursor bills, and she had been doing that for five years. She said that currently there were no retail sales limits in Utah that would affect safe harbor products; that meant CHPA-member products were not limited for sale in Utah. Arizona had an 8-package or 24-gram retail sales limit in effect. California had a 3-package or 9-gram limit in effect. The Washington bill had not made it to the Governor’s desk yet, but that would also have a 3-package or 9-gram sales limit. Missouri’s bill was in process, 3-package or 9-gram limit. Oregon, 3-package or 9-gram, and Nebraska did not have any retail sales limit and did not intend to propose any at the present.
Ms. Bukar had worked closely with Mr. Ling on the amendments to A.B. 387 and she pointed out that the federal law discussed in earlier testimony did not affect safe harbor packaged-products. That 9-gram limit would only apply to the bottled products. CHPA-member products would not be affected by the federal law when that came into effect in October 2001. She felt the exemption for pediatric products was very important.
Regarding the exemption to manufacturers who were formulating pseudoephedrine products that could not be converted into methamphetamine, Ms. Bukar reported that a few years earlier, Warner-Lambert developed the “lock technology”: a binding agent that would be included in products containing pseudoephedrine so it would be almost impossible to extract the precursor product. Since Pfizer merged with Warner-Lambert they continued to work on the project, spending over $5 million to date. When completed they would license the product to other manufacturers. The product would not be available until 2002 or 2003.
Chairman Koivisto asked for a citation of the federal law referred to above. Someone in the audience said it was the “Methamphetamine Anti-Proliferation Act of 2000.” Ms. Bukar said it was included under the Children’s Health Act of 2000. It was Public Law 106-310.
Regarding the penalties, Ms. Bukar suggested the committee adopt what had been done at the federal level. Chairman Koivisto interjected that the Health and Human Services Committee was not the committee to establish penalties and would confine itself to establishing it as a felony since the penalties were already in statute. Ms. Bukar said the committee should, however, consider the standard for proof under that section for the possessory limits, “the sale with reckless disregard.” That was the current federal standard under which DEA was prosecuting. She noted that the Comprehensive Methamphetamine Act, which was now part of the Controlled Substances Act, had a “reckless disregard” standard in it, as well.
Assemblyman Manendo returned to his earlier question about it not being worth it to try the case if the crime was less than a Category D felony, and asked Mr. Ling if he was speaking from a law enforcement capacity. Mr. Ling said perhaps he misspoke and law enforcement should answer that. Mr. Manendo recalled that Mr. Ling formerly worked in the Attorney General’s Office and that office had ably prosecuted the selling tobacco to minors’ violations.
Ms. Bukar commented that she had worked in many states addressing the issue and would continue to do so as long as people continued to manufacture methamphetamine. In all the bills she had worked on and had passed in those states, there were differing levels of penalties and she suggested the committee might want to look to those other states, in which case she would provide the information.
Chairman Koivisto asked for opponents of the bill to come forward.
Pete Krueger, State Executive, Nevada Petroleum Marketers & Convenience store Association (NPMCSA), said he had just received the amendments that morning and he put out a call to his members to get their input. He wanted to work with Assemblywoman Cegavske and the bill sponsors to try to eliminate the methamphetamine problem. One of his members, because of theft of the products in question off the shelf and from the storeroom, had chosen to discontinue selling those products. Mr. Krueger noted that besides being a legal product it was also a highly-profitable legal product, and whenever a retailer lost the ability to sell a profitable product it affected their business, yet that member did just that. He added that pending input from his members he would work with the proponents of the bill to craft a bill that would accomplish what law enforcement wanted and still allowed the proper retailing of a legal product.
Mary Lau, Executive Director, Retail Association of Nevada (RAN), was accompanied by Samuel McMullen, also of RAN. Ms. Lau emphasized she was not testifying against Assemblywoman Cegavske’s bill on the sale of precursor products, or against anything to do with methamphetamine, however, she was upset by the fact RAN had been locked out of the conversations on the bill, not by Mrs. Cegavske but by other parties concerned, since its inception. Ms. Lau said she had offered to come to the table and expressly wanted to participate to get a very good bill for the state. She referenced Assemblywoman Smith’s comment about the Costco package and said it would be wrong if one purchased three packages containing 12 boxes each. However, no one had spoken about what retailers had done in the state. There were major corporations in the state that participated in reverse sting operations; they set it up and cooperated with LVMPD. There had been UPC (Universal Product Code) and label violations and through that work the “Flea Market Law” was passed last session. Ms. Lau noted that she had a 45-minute video that showed informants reporting on meth labs in Las Vegas that resulted in arrests in Arizona. There were register lockups requiring someone to approve a sale, and clerk-manager informants where if a sale was made they advised the police department, they also supplied product to police departments for sting operations. Ms. Lau, with the cooperation of the RAN, had done training on the sale of those products. However, she noted there was a huge problem when, if they trained and educated the clerks, the retailer was subject to penalties that far exceeded penalties in any other state. She did not believe there was any criminal intent on the part of retailers. She had no problem with people being penalized and certainly wanted to get the bad guys off the street, nor did they like the 8x10 store operations that had $300,000 worth of product. However, she did not want clerks having criminal records for making a mistake.
Mr. McMullen agreed that A.B. 387 was a very important bill and they were not trying to stop it as it had an important policy objective. What he hoped to be able to do, however, was make it important to the businesses, either because it was a proper social objective and could be done voluntarily, or because a law was passed. He wanted to enhance and push compliance with the bill to make sure the goals of the bill were met. For example, in Section 3, he shared Assemblywoman Parnell’s issue with the absence of the word “purchase,” because he felt the burden was all on the retailer. Mr. McMullen had a concern about the limit of grams as it was hard to know what was reasonable, particularly because with most retailers the sales were very quick transactions; many things passing across the check stand, and perhaps something more visible than three packages was needed.
Mr. McMullen referred to page 6, subsection 2, of the amendment and noted that it sounded reasonable but the most important part was that Section 2 and Section 3 worked together. There should be one standard across the state for training. Similarly, he felt that penalties should be set by state law and be the same across the state. Another important point, Mr. McMullen said, was that RAN had a demonstrated track record in the context of the tobacco stings and, when given the chance, to do something well and the ability to create a program that worked. For that reason, he objected to the discretionary power of the Board of Pharmacy under Section 6, subsection 2, to waive or impose a sanction. The board did not have to take into account all the good faith work that had been done or all of the training conducted. When there was money to be made in a transaction at the retail counter, an employee could decide that they might profit by it, and even when an employer had done everything right within its control, it stood the risk of being disciplined. Accordingly, Mr. McMullen suggested that in the first line of subsection 2, the word “shall” be used in place of “may.” Also, “may” in the second sentence in that subsection should also be changed to “shall.” Or, he said, use language similar to that used in Chapter 202 on smoking violations, because he had found that worked.
Mr. McMullen also thought it might be preferable to state if pharmacists did everything right they should be considered not at risk either. He reiterated his concern for the disciplinary penalties and the level of penalties
Assemblyman Manendo believed that law enforcement was working very hard and nearly every community had a meth lab someplace, and in fact when one was found in his district in the middle of the night, nearby residents had to be placed in the local elementary school as a safe haven. He then mentioned an article in National Conference of State Legislature’s magazine that spoke of Drano, liquid fertilizer, iodine, lighter fluid, and so on, which were used in making “crank” or “ice” with longer-lasting effects than cocaine, and asked if those products would be targeted in a similar fashion in the future.
Mr. Krueger responded that he had a problem with asking retailers to act as law enforcement. He said that this session it was Sudafed and next session it might be another legal product and he was philosophically opposed to that, however, he appreciated the problem and wanted to work to solve it.
Chairman Koivisto questioned why the bill was aimed at the retail level when it appeared that the quantities at issue appeared to be at a wholesale level.
Gemma Waldron, Deputy District Attorney, Washoe County District Attorney’s Office, and also representing the Nevada District Attorney’s Association, felt that question could be answered by LVMPD. She said she had signed as neutral on the bill. In concept she recognized exactly what law enforcement was trying to achieve. Currently it was a crime for an individual to have the majority of ingredients for the manufacture of methamphetamine; a Category B felony. What she felt was missing from the bill and the amendment was the element of a guilty mind of the seller. It was much easier to prove a case of a person who possessed the drug; someone who had obtained four cases of Sudafed with no logical reason for doing so.
However, she said, everyone was struggling with the fact that there could be an innocent clerk who did not know that Sudafed could be used for methamphetamine; therefore, the reckless disregard language offered for the guilty mind of the seller was very important. Otherwise, as a prosecutor, she would have a very hard time to show that the seller had any knowledge of the end use of the product, unless she dug very deep to show conspiracy, or that the RAN held a seminar which the seller had attended where he or she learned that the sale of four cases of Sudafed was for manufacture of methamphetamine. She felt, based on the scenario offered by Detective Bunn; the small storefront operation that only sold cigarettes in the front but had cases of Sudafed in the back room, and customers were not there to buy cigarettes but went to the back with a pickup truck to load up those cases of Sudafed, that it was a wholesale quantity but a retail operation.
Ms. Waldron noted that everything needed to make methamphetamine could be purchased at Wal-Mart. Ms. Waldron added that the Wal-Mart clerk could not be expected to know what was going on without training and some kind of program to tell them red flags should be going up if someone went through the check stand with quantities of Sudafed, or matches tipped in red phosphorus, another meth ingredient. The clerk probably was simply scanning the bar code and not even looking at the merchandise. Therefore, Ms. Waldron believed the guilty mind element had to be included in the bill. It was less important for the person who was purchasing it, because if the individual was not in wholesale or retail and possessed a large quantity of a precursor drug, the possession was enough, from her point of view, to show the possessor had it for the ultimate purpose of producing methamphetamine.
Chairman Koivisto felt that the bill, perhaps because of the amendments that had been offered, probably should have been heard in the Assembly Committee on Judiciary, but it was too late in the session to do that. Therefore, because there was a level of discomfort among committee members, she suggested that Assemblywoman Cegavske work with Ms. Waldron, Mr. McMullen and Ms. Lau, of the RAN, and others who had specific concerns to see if those could be addressed and bring the bill back to the Health and Human Services Committee by April 16, 2001.
Toni Weeks, LVMPD, offered an explanation as to why the bill had targeted the retail level, instead of the wholesale level, the retail level was where the problem had occurred. It was not only storefront operations that were selling cigarettes in front and cases of Sudafed out back; those operations were actually convenience stores. The sting the Narcotics Division conducted last year involved legitimate convenience stores that sold gasoline, dairy products, and so on, where children and adults were daily customers, and where cases of Sudafed were sold out the back door.
Chairman Koivisto announced A.B. 387 would be held until Monday, April 16, pending return by the sponsors. She then opened the hearing on A.B. 472.
Assembly Bill 472: Requires establishment and carrying out of program to control diseases that may be transmitted by arthropods or rodents. (BDR 40-1281)
Assemblyman David Humke, District 26, explained he represented Dan Ariaz, the bill’s sponsor, who was unavoidably out of town. Mr. Ariaz had, however, furnished written testimony (Exhibit E).
Mr. Ariaz was the past president of the American Mosquito Control Association, the first Nevadan to hold that title, and a retired Washoe County Vector Control program administrator for the Washoe District Health Department. He had 24 years’ experience in vector control and was currently a vector control consultant and had worked and lectured worldwide, even at the world health level. Mr. Ariaz believed that tourism, recreation, and, agriculture, being the dynamic economic engines in Nevada, necessitated protection from vectors. In the Reno area and in other parts of the state, recreation and agriculture were very important to the economy.
Mr. Ariaz had wondered, reported Mr. Humke, when Reno held the second Reno Open at Montreux Golf Course two years earlier, what would have happened had the participants known there was a bubonic plague die-off only a few hundred yards from the golf course location. Had that been released to the media, the professional golfers would not have stayed around. Another example, Rosewood Lakes Golf Course, Reno, was built on a swamp amid millions of mosquitoes. During the first year it was open for play, little money was made because people could not tolerate the mosquitoes. Mr. Ariaz had been able to control the mosquitoes with a soft approach that would not harm the ecosystem and subsequently revenues had increased substantially.
Mr. Ariaz saw vector control as stabilization for the economy and kept people from sickness and even death. He cited that in 2000 there was an anthrax outbreak in Washoe County and hundreds of thousands of dollars were lost to the ranching community due to the outbreak. Vector control spearheaded the process to take care of the problem. Hantavirus outbreaks had taken several Nevada residents’ and tourists’ lives recently. The mosquito virus problem was a potential in Nevada and had been real in New York City, where there had been loss of life. Mr. Ariaz speculated about the municipality in Fernley where there was a high mosquito density and growing problems for residents.
Mr. Humke stated that Mr. Ariaz had suggested some amendments, and there were some problems with the bill, as evidenced by those individuals waiting to testify in opposition. Mr. Humke said that Mr. Ariaz’ intent was to have something in statute so that if any of the outbreaks mentioned occurred anywhere in the state, passed by mosquitoes or other vectors, there was some response mechanism in place. It might not be funded but it would be there nonetheless. Accordingly, Mr. Humke suggested the following:
Add a new section with a definition of the word “vector”: “Vector, as used in this section, means any animal capable of transmitting the causative agent of human disease or capable of producing human discomfort or injury including but not limited to mosquitoes, flies, other insects, ticks, mites, and rodents.”
Also, at line 5, page 1, after the word “arthropods,” add the word “vector,” and the same change at line 3. At line 11, change the word “shall” to “may.” Mr. Humke noted that the government relations specialists he had spoken to had been in agreement with those changes.
Chairman Koivisto remarked that having moved to Nevada from Minnesota where the mosquito was the state bird, she had not yet seen a mosquito in Nevada that scared her. Mr. Humke reported that Mr. Ariaz, whom he met many years ago, saved his district because there was a severe mosquito problem in the urban districts, which once were swamps. Mr. Ariaz received a budget for abatement and began a spraying program with a ground base and helicopter, and had reduced the complaints from citizens a great deal. He added that Mr. Ariaz had been extremely concerned about viruses and other diseases that could be spread by vectors in the state.
Assemblyman Williams noted that in Louisiana, his home state, the mosquito was the governor. He then asked if Mr. Humke would have a problem if the bill was indefinitely postponed. Mr. Humke was unsure about “major problem,” unless that meant crying himself to sleep. Mr. Williams believed Mr. Humke did that every night anyway. The banter got a lot of laughs.
Assemblyman Manendo recalled that a few sessions earlier he had gone before the Committee on Natural Resources, Agriculture and Mining with a “puppy and cat” type consumer protection bill, and Mr. Humke had wanted to amend in guppies, therefore, Mr. Manendo wondered if guppies would be amended into the current bill. Mr. Humke was mute on the matter. Mr. Manendo then asked if midge flies would be appropriate to be added in the bill like fleas, ticks, and so on. He was uncertain exactly what those flies were, however, in his district “midge” flies were a severe problem. There were wetlands, the sanitation department, and other such conditions that attracted those flies at certain times of the year. In fact, when one went outside they would appear like a swarm of locusts and if one opened his mouth they would fly inside. The county health department had called them “midge flies.” Mr. Humke said the definition of vector would encompass that, if that insect was “capable of producing human discomfort or injury” as also appeared in the definition.
Assemblywoman Angle said she was glad Mr. Humke had brought the bill forward as it also had an effect on her district. She felt it was a serious matter. She wondered if he planned to circulate the e-mail Mr. Ariaz had sent. Mr. Humke said Mr. Ariaz had sent it to all committee members.
Next to testify was Alex Haartz, Deputy Administrator, State Health Division (HD). He was joined by Dr. Randall Todd, the State Epidemiologist, State Health Division, to speak on the issue of vectors, insect-born, rodent-born diseases that were transmitted to humans. Mr. Haartz provided his testimony (Exhibit F).
Mr. Haartz reported the HD was the health authority for the 15 rural counties; there was a county health authority in Washoe and Clark Counties. Under both statutes NRS 439 and 441A and accompanying regulations adopted by the State Board of Health, there already was a system in place for the reporting, investigation, and control of communicable diseases. Within that definition vector-born diseases, insects, rodents, ticks, and so on, were included. Known or suspected cases were already required to be reported within 24 hours. Through that system, the state and county were able to control disease as it occurred or was suspected. Mr. Humke’s constituent, Mr. Ariaz, had raised very valid points and concerns. From the health department’s perspective, if the existing system was not in place, and the statutes cited above did not exist, Mr. Haartz said he would be before the committee stating that legislation was absolutely needed.
Nevertheless, from a State Health Division standpoint, Mr. Haartz was interested in Section 2, line 11, where it required the counties to pay for the expenses of carrying out a program. Currently that service was provided as the state health authority. The burden of disease in the counties was very low.
Chairman Koivisto asked if Mr. Ariaz were to report the problem to the State Health Division as opposed to the county people, would he then get results.
Dr. Randall Todd, State Health Division, believed that the way communicable disease reporting was set up in Nevada there were three health authorities: Washoe County, Clark County, and the State Health Division serving as health authority for the remaining 15 rural counties. Vector-born diseases diagnosed in residents of either Washoe or Clark Counties would properly be reported to the respective county health district and dealt with there. Only if they had a problem that was exceeding their local capacity would they need to ask the State Health Division to assist or to request federal assistance for a major outbreak.
Chairman Koivisto thought it sounded like the problem was the local health authority was not responsive. Dr. Todd was not certain that was the case, however, both Washoe and Clark County Health Districts had vector-control programs in place. Those counties should speak to whether they were appropriately funded or staffed to handle those problems. From a State Health Division perspective, they did not have an ongoing vector-control program for the remaining 15 rural counties.
Mr. Haartz did not want to minimize the issue or the testimony, and he was emphatic that mosquitoes were a nuisance, as were fleas and ticks. However, to put it into perspective, from a disease standpoint, the HD’s statistics over the last five years revealed approximately 60 cases of disease transmitted to individuals reported in Nevada that were tied to mosquitoes, fleas, ticks, and rodents. Of those, 46 were acquired by Nevada residents traveling into areas where malaria and Lyme disease were endemic. They brought the disease back to Nevada and then diagnosed here and reported into the system. From the HD’s standpoint, that left about 20 cases documented; that should not be trivialized. But, to move to an active control program versus an existing surveillance program in place would take manpower and incur costs.
Dr. Todd amplified Mr. Haartz’s comments by stating that Hantavirus, a disease that received a lot of press when it occurred and was a concern throughout the southwestern part of the country, in Nevada there had been five confirmed cases over the last five years; four in 1998 and one in 1999. In total there had been 12 cases of Hantavirus confirmed, resulting in two deaths from Hanta-virus pulmonary syndrome. Regarding plague, mentioned earlier by Mr. Humke, there was endemic plague among rodent populations in the state. Nevertheless, human cases of plague were exceedingly rare. The five-year average was zero. Data showed the last case was in 1992; that case involved teenagers hunting rodents in the wild and they roasted and ate one.
Assemblywoman Angle read a quotation from Mr. Ariaz’ testimony:
The State of Nevada Health Department has no vector control program to handle potential cases. As when I worked there Washoe County Vector Control three staff professionals handled all aspects of vector control throughout the state and called upon to keep the public safe. The problem is there are very few professional people that can actually do this work at the level that it must be done to assure that residents and tourists alike stay safe. I am asking for government and health agencies throughout the state to have education surveillance and control as a proactive program to insure that residents in rural communities as well as densely populated areas are safe from the vector-born risk. When I was in Tonopah we did have Hantavirus there and we didn’t know that until the man went to the hospital and was nearly dead then we were told and we had to call around all over trying to figure out how to protect ourselves from the rats’ dust.
Mrs. Angle then wanted to know what the cost would be to put into place a proactive program. Mr. Haartz responded that the State Health Division did not have fulltime employees dedicated to vector control. They did have employees who were disease control specialists who dealt with all communicable disease and also employees who were environmental health professionals who dealt with the full range of environmental health issues, including rodents and vectors in general. When there was a suspected case, those employees took on those responsibilities. Therefore, there was trained, professional staff to address those issues as they arose. To launch an active program, given the size of the 15 rural counties, would be in the range of $300,000 to $400,000 annually, the main cost being staffing and startup costs.
Chairman Koivisto brought A. B. 472 back to committee where it was determined no action would be taken at present and the hearing was then closed.
The Chairman next opened the hearing on A. B. 488 and asked Jim Spinello to report on what had transpired with the amendments.
Assembly Bill 488: Revises provisions relating to transportation by fire-fighting agencies of sick or injured persons to medical facilities. (BDR 40-181)
Jim Spinello, representing Clark County, reported several changes had resulted from the concerns expressed at the last meeting.
Assemblywoman Tiffany asked if imposing and collecting fees was something new or was currently being done. Mr. Spinello said the jurisdictions whose fire departments provided ambulance service charged a fee, just like any other ambulance provider. That was strictly for the transport of a sick or injured person from an emergency scene to an emergency room. They did not charge for the response where no transport was required. Ms. Tiffany also wanted to know, regarding the homeless situation and the consortium for diversions on the emergency room problem, if the proposed legislation derived from that consortium; specifically if an ambulance could transport the mentally ill. Mr. Spinello said not specifically, other than if the county pursued that course of action, however, the proposed legislation was only requesting the authority to do so. It would provide more resources in the community to be able to do so. The issues of an ambulance being able to deliver an injured, intoxicated person to a facility other than to an emergency room was being worked on with the health district.
Chairman Koivisto noted the bill dealing with that issue that had come from the consortium would be heard on April 16. She then asked the committee’s wishes with regard to A. B. 488.
VICE CHAIRMAN MCCLAIN MOVED TO AMEND AND DO PASS A. B. 488.
ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.
The Chairman invited discussion and asked if the committee wanted to include the amendment to have the proposed legislation apply to populations over 400,000. Vice Chairman McClain said that was not part of her motion, but she would restate her motion to include it.
VICE CHAIRMAN MCCLAIN MOVED TO AMEND TO INCLUDE THE OVER 400,000 POPULATION AND DO PASS A.B. 488.
ASSEMBLYWOMAN LESLIE SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY AMONG THOSE PRESENT.
Chairman Koivisto asked Mr. Spinello to provide the amendments in written format to Marla McDade Williams.
With no further business before the committee, the Chairman adjourned the meeting at 3:47 p.m.
RESPECTFULLY SUBMITTED:
Darlene Rubin
Committee Secretary
APPROVED BY:
Assemblywoman Ellen Koivisto, Chairman
DATE: