MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-First Session
May 7, 2001
The Committee on Judiciarywas called to order at 9:08 a.m. on Monday, May 7, 2001. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and by videoconference to Room 4401 of the Grant Sawyer Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. Mark Manendo, Vice Chairman
Mrs. Sharron Angle
Mr. Greg Brower
Ms. Barbara Buckley
Mr. Jerry Claborn
Mr. Tom Collins
Mr. Don Gustavson
Mrs. Ellen Koivisto
Ms. Kathy McClain
Mr. Dennis Nolan
Mr. John Oceguera
Ms. Genie Ohrenschall
COMMITTEE MEMBERS ABSENT:
Mr. John Carpenter - Excused
GUEST LEGISLATORS PRESENT:
Senator Ann O’Connell, Clark County Senatorial District 5
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Leslie Hamner, Committee Counsel
Cindy Clampitt, Committee Secretary
Allison Combs, Principal Research Analyst (Senate)
Bradley Wilkinson, Principal Deputy Legislative Counsel (Senate)
OTHERS PRESENT:
Mr. Jerry Tomasetti, grandparent and one of the sponsors of S.B. 25
Mrs. Fran Tomasetti, grandparent
Ms. Sally Redmond, representing herself
Mr. Mufid Khoury, representing himself
Mr. Eddie Escobedo, Jr., representing the Hispanic Community
Ms. Jean Puntorieri representing herself
Ms. Myra Sheehan, Nevada Trial Lawyers’ Association
Ms. Ann Price-McCarthy representing the Nevada Trial Lawyers’ Association
Mr. Bradley Taylor, representing himself
Ms. Lucille Lusk, representing Nevada Concerned Citizens
Mr. Bob Hadfield, representing Nevada Association of Counties
Mr. Steve Kastens, Parks and Recreation Director, Carson City and also representing the Nevada Recreation and Parks Society
Ms. Karen Mullen, Director of Washoe County Parks
Mr. Scott Morgan, Director, Douglas County Parks and Recreation
Mr. Dan O’Sullivan, representing himself
Mr. Bill Bradley, representing the Nevada Trial Lawyers’ Association
Mr. Matthew Sharp, representing the Nevada Trial Lawyers’ Association
Chairman Anderson called the meeting to order at 9:08 a.m. He informed the committee members that conflict notices had been received on S.B. 204, currently on the Assembly floor, and on S.B. 197 and S.B. 263, which were in conflict with S.B. 300.
Chairman Anderson opened the hearing on S.B. 25.
Senate Bill 25: Revises provisions governing granting of rights to visitation with child to persons other than parents of child. (BDR 11-45)
Senator Ann O’Connell, Clark County Senatorial District 5, introduced Ms. Allison Combs, Senate Principal Research Analyst, and Mr. Bradley Wilkinson, Senate Principal Deputy Legislative Counsel. Senator O’Connell noted she had requested staff from the Legislative Counsel Bureau to join her because the bill had been changed considerably from its original form.
Senator O’Connell acknowledged that the committee had passed a bill very similar to S.B. 25. That was A.B. 34, and she stressed there were two areas of S.B. 25 that were different. She stated S.B. 25 spoke to issues of an intact family, and there was a higher presumption of evidence that a child would suffer harm if a right to visitation was not granted to the party seeking visitation.
Senator O’Connell testified that S.B. 25 allowed a grandparent to petition the court to have the ability to visit grandchildren with an intact family. She commented A.B. 34 had not addressed situations where there was an intact family.
Senator O’Connell stated the bill was brought on behalf of one of her constituents, Mr. Jerry Tomasetti. She commented the issues addressed by the bills would not be necessary except for the Troxel case in the state of Washington and the subsequent Supreme Court decision. The Senate Committee on Judiciary spent considerable time studying the issues and had heard compelling testimony by grandparents who had been denied rights of visitation.
Senator O’Connell stated S.B. 25 tried to navigate through the difficult constitutional waters while recognizing the fundamental right of a parent to make the decisions regarding their child. The bill set forth limited circumstances under which a court could make a finding to go past the compelling state interest to set aside the fundamental right of a parent. If there was a case where the parent had prohibited visitation between the child and the grandparents or great-grandparents completely, the grandparents or great-grandparents could petition the court to have visitation rights. When a petition was heard there was a rebuttable presumption that granting a right of visitation to the grandparents was in the best interests of the child. It then became the burden on the petitioner to show that the child would suffer some harm if he did not have a relationship with the grandparents.
Senator O’Connell noted that testimony in the Senate had included that “harm” existed whether it was physical or mental harm that the child might undergo without a discernable reason evident to the grandparent denied the right of visitation.
Senator O’Connell stated decisions before the committee were based upon whether a grandparent could show harm was done to a child by not having a relationship with grandparent. She provided comments from an article from the American Association of Retired People (AARP) in Exhibit C. She noted Exhibit C commented on the Supreme Court decision in the Troxel case regarding grandparent visitation rights.
Chairman Anderson stated that he, along with Assemblyman Carpenter, and Assemblywoman Buckley served as a subcommittee on A.B. 34. The approach in that bill had been just slightly different than that of the Senate bill. He provided committee members with a paper prepared by the Research Division staff titled, “The Troxel Decision and Visitation Rights in Nevada,” (Exhibit D). He reminded members that the visiting Senate staff members were present to provide information only.
Ms. Combs and Mr. Wilkinson noted they had no further comments on S.B. 25, but stood to answer any questions the committee had.
Assemblyman Collins requested a comparison of S.B. 25 and A.B. 34. Ms. Combs stated A.B. 34 established a rebuttable presumption that must be overcome by a preponderance of evidence. S.B. 25 allowed intact families to petition the court, and the rebuttable presumption must be overcome by “clear and convincing” evidence as opposed to a “presumption” of the evidence. She noted that the term “clear and convincing evidence” was a higher legal standard than presumptive evidence.
Additionally, under S.B. 25 there was a requirement to show that the child would suffer harm. It also revised the list of factors to be considered by the court by limiting the last factor under current law. That factor currently stated that the court could consider any other relevant factor. The bill limited that allowance to “any other factor arising solely from the facts and circumstances of that particular dispute.”
Finally, if the case was brought based upon an intact family, and the person seeking visitation rights was denied visitation, attorney’s fees could be awarded to the person opposing visitation; typically the parent.
Chairman Anderson stated the Senate bill contained provisions for “clear and convincing evidence,” a higher standard. The Senate bill also contained a longer list of those who had a right to bring a lawsuit for visitation.
Senator O’Connell stated one other major difference was that in A.B. 34 a grandparent could not petition the court in the presence of an intact family. S.B. 25 added the grounds for a grandparent to go to the court if the family was still together. She noted her awareness that an amendment would be proposed to remove that provision from the bill, and the committee would need to make that decision.
Chairman Anderson stated that the grandparent/parental rights issue was the crux of the Troxel decision. There had been very strong arguments that the court had been moving in that direction for some time, so the Troxel decision was not a surprise. He added Nevada was not under a direct demand to move to the standard. The state could wait for a direct challenge to the current standard.
Mr. Jerry Tomasetti, grandparent and one of the sponsors of S.B. 25, testified from Las Vegas. He commented the rights addressed in the bill were long overdue and, in his mind, the bill had begun as a bill for grandparents and remained so in his heart.
Mr. Tomasetti quoted from the Title to S.B. 25, which said in part,“. . .the rights to visit with children, persons other than parents.” He commented that was a very open scope of people that might seek visitation rights. He stated similar language was killed in Washington and Oregon for the same reason. Mr. Tomasetti said he was not against others who might seek visitation rights, but his efforts were focused on the rights of grandparents and great-grandparents.
He opined the bill might pass more easily if it was similarly focused, because it was known that grandparents loved, helped, and taught children. He stated grandparents were the cornerstones of any family, adding no one used the word “family” any more. He noted today families were battlegrounds with parents, fighting against their parents, and children were the biggest losers. Mr. Tomasetti stated he just wanted the right to see his grandchildren. He did not want the right to order his children; he just wanted to have a relationship with his grandchildren. He stressed he had heard no one speak to the needs of grandchildren.
Mr. Tomasetti noted only five people were present in Las Vegas to testify in support of S.B. 25 and only one in opposition. He added he had a petition with 1,000 signatures supporting the bill, but, if all of the signers had come, they would have testified to the same thing; that they did not see their grandchildren for one reason or another. He suggested the room should be filled with 1,000 grandchildren to find out how they felt and how hurt they were.
Mr. Tomasetti stressed the United States built upon its history, and grandparents were part of the history of a family. He reiterated that “other persons” should be removed from S.B. 25, and it should only contain the rights of grandparents and great-grandparents.
Mrs. Fran Tomasetti, grandparent, testified that she and her husband, Jerry Tomasetti, had two grandchildren they were not allowed to see and explained she and her husband were supporting the bill because their child, one of the parents of the two grandchildren, was being cruel with regard to grandparent rights. She stated the bill would appoint someone else to make that decision.
Mrs. Tomasetti stated they sponsored the bill, not only for themselves, but because grandparents needed a right of visitation. Most of all, the grandchildren had a right to visits with their grandparents. She explained she had talked to her other two grandchildren with whom she had a great relationship, and they told her, because of everything, they could not see their cousins. She added the alienated grandchildren used to go to her house, and she would hold “sleepovers.” They wanted to go to their grandparents’ home on Christmas Eve to receive their presents and to be with the rest of their family.
She concluded by pleading with the committee to pass S.B. 25.
Chairman Anderson asked if, in the particular set of circumstances regarding the Tomasetti family, their child had denied the grandparents’ visitation rights. Mr. Tomasetti responded affirmatively. The Chair confirmed that, because of the Troxel decision, the parents in an intact family had the right to do so. He explained current law in Nevada, prior to S.B. 25, had taken the tactic of allowing the court to decide, based on the best interests of the child, but current law did not provide specific standing for grandparents.
Chairman Anderson asked for confirmation that the Tomasettis were looking for language to be added to the law that would allow a specific standing for grandparents, despite what the parent might say. Mr. Tomasetti responded the situation was like a bad divorce, or any divorce, in which the wife held the children against the husband or vice versa. They held the children ransom for child support payment or things like awarding of the house in a divorce settlement. The same was true of grandparent rights.
Chairman Anderson stated the Troxel case made the decision that the parent had the right to determine what was best for a child based on their natural rights. He asked if Mr. Tomasetti had made choices for his children when they were smaller that the children had not liked. Mr. Tomasetti replied he was 61 years old, his son was 40, and his daughter was 39. When they were born, they were raised with the understanding that when a child was forced to do something, it only built up a barrier.
Chairman Anderson reiterated his question of whether Mr. Tomasetti had made decisions for his children they had not liked. Mr. Tomasetti replied, “Yes, when they were very young.” The Chair asked if Mr. Tomasetti had conflicts with his parents over the way Mr. Tomasetti was raising his children. Mr. Tomasetti replied in the negative. He added that was why he did not understand what was happening with his son and the children. He noted his daughter would allow him and his wife to see her children as often as they would like. Mr. Tomasetti stressed he and his wife were unaware of the reason they were not allowed to see their son’s children, and, although he had asked his son on many occasions, he had never received an answer. The Chair stressed that even if S.B. 25 was passed, the parent would still not have to explain their reasons for not allowing grandparents to see the children. The grandparent would merely have an opportunity to present evidence of why they felt it was in the best interests of the child to have that visitation.
Ms. Sally Redmond, representing herself, stated she had known the Tomasettis for many years, and they were fine people. She noted her grandparents were in Austria, and she had never had an opportunity to meet them. She had always envied her friends who had grandparent relationships.
Mr. Mufid Khoury, representing himself, testified in support of visitation rights for grandparents. He stated he was fortunate to have had grandparents. He had been born in another country and came to the United States when he was 18 years old. He stated his grandparents had showered him with love and affection as he grew up and taught him right from wrong. He stated his belief that grandparents were the main root of the family tree and that every grandparent should have the right to visit with their grandchildren.
Mr. Eddie Escobedo, Jr., representing the Hispanic community, testified there was a similar situation to Mr. Tomasetti in his family. He explained his brother’s two children were not involved with the family because the wife, in his opinion, manipulated his brother. In those cases, the grandparents were used as another weapon. He stated family was very important. Mr. Escobedo noted the bill had several areas that needed to be addressed.
Mr. Escobedo stated his own children worked with their grandparent, affording them an opportunity to learn about their culture and history. His father would like to have that same relationship with his other grandchildren. The bill would offer him that opportunity.
Ms. Jean Puntorieri representing herself, stated she was present to support the Tomasettis. She stated as a grandparent of ten grandchildren, they were the greatest pleasure in her life. She appealed to the committee to grant the Tomasettis the right and privilege to see their grandchildren. She commented those who had grown up with the love of grandparents knew what a loss it would be not to have that relationship.
Ms. Puntorieri asked why grandparents should have to plead for the right to see their grandchildren and asked who would suffer by the lack thereof. She suggested grandchildren would suffer the most, and, as adults, those children would resent that the relationship was denied them.
Ms. Myra Sheehan, Nevada Trial Lawyers’ Association (NTLA), testified in opposition to S.B. 25. She related to a Nevada case, Stewart vs. Stewart, 1‑11-295. She stated it was the leading case of dealing with grandparental rights. In that case, divorced parents agreed that the paternal grandparents should not have visitation. She stated the Nevada Supreme Court reversed the District Court when the grandparents were granted visitation rights. The Nevada Supreme Court in Stewart vs. Stewart said if there were two fit parents, even if they were not married, and they agreed there should not be visitation, it would not be granted.
Ms. Sheehan stated the NTLA was not in support of a bill that expanded the law to intact families. That would infringe on constitutional rights of parents to make decisions, especially in intact families. She stated S.B. 25 would overturn current Nevada case law.
Ms. Sheehan restated the comparisons between A.B. 34 and S.B. 25. In S.B. 25, page 1, Section 1, subsection 1(e) it stated, “Has prohibited visitation.” In A.B. 34 it stated, “Has been denied or restricted visitation.” She added that provision allowed infringement on the decision of intact families and the choices they made. The A.B. 34 version specified it did not apply to intact families.
Ms. Sheehan noted S.B. 25 was a far more restrictive bill except for the fact it allowed grandparents and the others specified to file a lawsuit against intact families. In S.B. 25, page 2, paragraph 3, the rebuttable presumption dealt with clear and convincing evidence and that it must be shown the child would suffer harm from being denied the relationship. A.B. 34 referred to “preponderance of evidence.” Ms. Sheehan noted much had been discussed about the Troxel decision, and the NTLA had lobbied for the higher standard of ”clear and convincing evidence” because they had felt it was the most constitutionally-sound standard. She added she was not absolutely certain that the Troxel decision demanded a rebuttable presumption of clear and convincing evidence. What was known was that the United States Supreme Court, in the Troxel decision, stated there must be some weight given to a parent’s decision. She added the decision had not gone to the point that all third party visitation statutes were unconstitutional. Ms. Sheehan stated if the committee wanted to err on the side of protecting the constitutional rights of parents, they should err on the side of what had come through the United States Supreme Court, which would rise to the level of a “clear and convincing standard.”
Ms. Sheehan stated A.B. 34 was much friendlier to grandparent rights than S.B. 25. She added if the statutes contained “preponderance of evidence” language, it might be accepted, but, if the statutes contained “clear and convincing” language, it would absolutely be acceptable.
In S.B. 25, page 3, language in subsection 5(j) had been deleted and language was added that said “arising solely from the facts and circumstances of the particular dispute that specifically pertains to the need for granting a right to visitation pursuant to subsection 1 and 2.” Ms. Sheehan noted the added language would not be a bad change to A.B. 34.
S.B. 25, page 3, subsection 6, had not been dealt with at all in A.B. 34. Ms. Sheehan opined it incorporated a good change. The subsection addressed the issue of preponderance of evidence when dealing with termination of parental rights in situations where the child was no longer in the custody of the natural parents. The provision allowed that if children were placed in the care or custody of an agency, the burden of clear and convincing evidence would not apply. She noted that provision would be acceptable under the Troxel decision.
S.B. 25, subsection 7(c), added a section that, Ms. Sheehan opined, flew in the face of Nevada case law, specifically, Stewart vs. Stewart.
Ms. Sheehan stated the last change, which the NTLA absolutely opposed, was in subsection 9 that stated if the court denied a petition for visitation, then attorney fees “shall” be awarded. She stated that provision was punitive and chilling, and she opined grandparents would not want that provision in the bill.
Ms. Sheehan concluded grandparents currently had the right to go before the court and petition for visitation privileges. She noted under S.B. 25, if there were two fit parents in an intact family, under Stewart vs. Stewart, the rights of the grandparents would not prevail. She stated as the bill stood, the NTLA could not support it.
Chairman Anderson asked if neither A.B. 34 nor S.B. 25 were to pass, where that would leave the state’s level of exposure given the provisions of the Troxel decision. Ms. Sheehan replied the exposure level would be greater. The legislature had done a good job in crafting one of the strongest and best grandparental rights on visitation of any state. The only thing lacking currently was a provision of rebuttable presumption of a fit parent. The Troxel decision provided guidance to ensure it was not the parent’s burden to say why visitation was not in the best interests of a child.
Ms. Ann Price-McCarthy, representing the Nevada Trial Lawyers’ Association, testified that one reason S.B. 25 was much harder on grandparents was because the grandparents in the Troxel decision would never have gotten to court with the provisions of the bill. In that case, visitation was not denied, only unreasonably restricted. S.B. 25 required that visitation had to be prohibited to be petitioned to the court.
Ms. Price-McCarthy stressed subsection 9 of S.B. 25 was wrong and should be removed from the bill. She referred committee members to Nevada Revised Statutes (NRS) 18.010, Section 2(b), which allowed attorney fees in cases where a matter was brought without reasonable grounds or for the purpose of harassment of the prevailing party.
Ms. Price-McCarthy referred to the Chair’s question of state exposure stating that with the Troxel decision the current statute was probably unconstitutional. If nothing was done, she only hoped judges who had such cases come before them would personally do a constitutional analysis based on the Troxel decision.
Mr. Bradley Taylor, representing himself, testified from Las Vegas in opposition to the bill. He stated S.B. 25 would not protect intact families within Nevada. Section 1, subsection 7(c)(3), of the bill prohibited visitation between the child and other children of either parent of the child. He stated he had two children from a previous marriage and had been divorced since 1977. At the time of the divorce his oldest son was two years old and his daughter was four months old. His ex-wife received custody of both children.
In 1984 he married his present wife, and in 1990 his ex-wife called him and asked if he would consider adopting his oldest son because of problems she was having with him at home. She had explained the son was suicidal and had considered running away, and she felt it would be in the son’s best interest to live with his father. On March 20, 1990, adoption was completed on his son. The son lived with them throughout his high school years. In 1992, the son was involved in a fight in a Clark County High School in which a Clark County High School teacher was knocked unconscious. The son went to an alternative school, was later re-admitted to high school, and graduated in 1993. He left his father’s house at that time.
In 1998, Mr. Taylor placed his father in the hospital with emphysema and pneumonia. As they were leaving the hospital one evening, their son was hiding behind a van and accosted them, screaming and yelling, because they had not called him to tell him that the grandfather was in the hospital. He chased them across the parking lot and tried to break out the window in Mr. Taylor’s truck.
He noted those were just two examples of problems they had experienced with their son. Since his departure from their home in 1993, he had not returned. The oldest son had never met the youngest son who was born two years after the older son had left home.
Mr. Taylor stated he and his wife had decided to wait until the older son had left to have children of their own. He stated on February 27, 2001, he received a letter from the attorney for his oldest son. He quoted, “. . .of course a District Court action followed by a Supreme Court action is expensive and time-consuming. I have agreed to represent your son pro bono, through the District Court and the Nevada Supreme Court appeal process. I hope that you will consider avoiding the expense and time involved by agreeing to stipulate a set visitation schedule covering both a regular and holiday schedule. That agreement would result in an expedited court process. Once the stipulation is drafted and signed, we will file our petition to establish visitation and a stipulation at the same time eliminating both the court hearings and any expense to you.”
Mr. Taylor stated it was his belief that the oldest son intended to cause his current family harm and to use S.B. 25 to cause a disturbance within the family, which he had achieved to some extent already. He added the youngest son had never been introduced to the older son because of the older son’s troubled past. Mr. Taylor and his wife requested S.B. 25 not be passed, because it did not protect intact families in Nevada. Mr. Taylor stated if S.B. 25 were amended to remove the last sentence, it would be a positive piece of legislation.
Mr. Taylor asked the committee to allow intact families to protect the rights of their children. He stated A.B 34 was a good piece of legislation that did protect intact families. He opined parents knew when they would be putting a child in a situation in which they could be harmed, and they should retain the freedom to protect those rights.
Ms. Lucille Lusk, representing Nevada Concerned Citizens, testified that she was in favor of portions of S.B. 25 and opposed to other provisions. If the committee moved forward with the bill, she proposed an amendment to the bill addressing the question of intact families (Exhibit E). She stated the intent of the proposed amendment was to ensure that if S.B. 25 was passed, it would not apply to intact families.
Ms. Lusk stated earlier testimony had led her to believe it might also be necessary to address page 3, lines 31 through 34 of the bill. She had not considered those references as applying to intact families, but if they did, the amendment would need to address that area as well.
Ms. Lusk stated the ideal situation would be for S.B. 25 and A.B. 34 to be joined in one bill that addressed the issues of the Troxel decision and made it possible for cases to be heard, but did not reach into the intact families.
Ms. Lusk stated her opinion differed from earlier testimony regarding page 3, lines 41 through 44 – the awarding of attorney’s fees. She stated perhaps the wording should not be as strong as “shall award,” but she felt parents might be placed in a bad situation with financial demands being placed on them when no just cause existed.
Chairman Anderson closed the hearing on S.B. 25 and opened the hearing on S.B. 482.
Senate Bill 482: Establishes prohibited and required conduct of person who uses a skateboard park. (BDR 40-415)
Mr. Robert Hadfield, representing Nevada Association of Counties (NACO), stated the bill was brought by NACO. The issue had been brought to attention by several counties. The skateboard park industry was an evolving service being provided by many of the counties.
Mr. Hadfield explained experts were present who helped design and operate skateboard parks. Those experts would present the bill and explain why the measure was needed and how it would protect both the individuals using the parks and the counties that were providing the recreational services.
Mr. Steve Kastens, Parks and Recreation Director, Carson City and also representing the Nevada Recreation and Parks Society, provided a history concerning skateboard parks. Carson City was the first municipal government to provide a skateboard facility in the state in 1997. It was a major undertaking because of the liability issues surrounding such parks. With the assistance of the Carson City Insurance Pool, standards and features were developed that the insurance industry felt did not put the community at such a great risk. It also prevented skaters from a great deal of risk or harm.
Some of the issues that had to be addressed were:
· Restrictions on heights of drops;
· No vertical drops over 18 inches;
Mr. Kastens noted drops could be higher than 18 inches, but the drop could not drop straight down to the concrete.
He noted their expertise was important, but it was also important to get their “buy-in” concerning liability.
Mr. Kastens reported since 1997, numerous skateboard parks had been constructed in other communities, with the Douglas County facility in Gardnerville being the latest. The newly-opened park in Douglas County was twice as large as the Carson City facility, and Carson City applauded them because Douglas County youngsters had been attending the Carson City facility in the past. As the only skateboard park in northern Nevada, youngsters from Fallon, Yerington, and South Lake Tahoe had attended the park also.
Mr. Kastens commented skateboard parks were much needed, but many communities were reluctant to enter the arena until standards were developed that protected everyone. He noted one other thing that happened at skateboard parks was that there was very little adult supervision. Unlike soccer or baseball, there were no referees or coaches, and young people liked it that way. He added that sometimes made if difficult for younger, less-skilled skaters because they sometimes got run over. To cover that issue rules and regulations were developed and posted. Mr. Kastens stated the rules and regulations were not intended to harass the young people, but to make them aware of what was happening. Mr. Kastens stated signs were typically posted requiring certain safety equipment to be worn, but, if no one was present to ensure the wearing of the equipment, that liability or risk fell back on the user.
Mr. Kastens stated Ms. Karen Mullen from Washoe County Parks was one of the primary proponents of the bill and had done an excellent job in putting the bill together to heighten awareness of the uniqueness of skateboard parks and to draw attention to smaller or older facilities.
Chairman Anderson stated skateboard park standards were not included in the bill, and it would be a difficulty with each facility to determine the size of the bowl or how large the park might be. He asked if each community would have to determine what the expert standard for their facility would be. Mr. Kastens replied that was the usual process. He noted the major difference between the Carson City park and the new park in Douglas County was that the insurance industry had seen the history behind some parks, so their standards had changed somewhat. In 1997, the insurance industry was very conservative, so the Carson City facility was built to those stiffer standards. Parks were constructed according to the standards and specifications provided by the insurance industry.
Ms. Karen Mullen, Director of Washoe County Parks, stated everyone in the parks and recreation field was concerned about skateboard parks because parks and recreation officials felt they were serving a youth for which it was hard to target and difficult to find facilities and programs. She noted there was not a skateboard park in Washoe County that did not have at least 30 to 50 young people on it at any time of the day or night.
Ms. Mullen stated S.B. 482 mirrored NRS 455, the Skiers’ Safety Act, which had heightened public awareness, user responsibility, and operator responsibility. Similar high-risk sports legislation had been passed in other states. Washoe County currently had four facilities, and two more were under construction.
S.B. 482 defined both skater and operator responsibilities. The skater responsibility included that “. . .a skater shall not use any facility if he knew that he had insufficient knowledge, skill, or ability to use it safely; failed to comply with reasonable instructions, rules, or regulations regarding the use of the facility; intentionally placed, dropped, or threw any object in the path of a user of the park; a skater must conduct himself in a manner that did not interfere with the safe use and operation of the skate park; and skaters were to avoid impeding or colliding with other skaters when entering the park.” Ms. Mullen stated that language was very similar to the Skiers’ Code.
Skaters were also to maintain proper control of their speed and conduct themselves in a manner to avoid injury to persons and property in a skateboard park. The skater had a responsibility to report an injury as soon as possible. A person must not enter a skateboard park while intoxicated or under the influence of a controlled substance.
Ms. Mullen stated the operator responsibilities were defined as:
S.B. 482 would provide a level of assurance to local governments building skateboard parks that skaters had a responsibility to conduct themselves in a safe manner.
Ms. Mullen stated the Skiers’ Safety Act had heightened public awareness, and many of the people who skied were also skateboarders in the summertime.
Mr. Scott Morgan, Director, Douglas County Parks and Recreation, was introduced by Ms. Mullen to discuss current parks and their safety standards.
Chairman Anderson stated testimony indicated a governmental entity built a park to whatever specifications that were in effect at the time as recommended by the insurance industry. He asked what happened if 20 years went by and the concrete, with the type of usage a skateboard park received, began to crack, break, and have other kinds of failures. He asked if the governmental entity was obligated to provide new surfacing to the facility out of its funds and to maintain it to the newest safety standards that might be in effect. Mr. Morgan replied the scenario described was similar to that of any facility that existed in any park or playground. He added standards changed, regulations like the Americans with Disability Act were enacted, or the industry changed, and public funds were used to either retrofit, repair, or replace equipments, surfaces, or pathways as needed.
Chairman Anderson noted it often took several years, once a product began to show wear and tear, before the facility could be upgraded because of the generally underfunded area of parks and recreation. He asked if the end result would be that public funds would be spent on repair and upgrading of existing facilities rather than in building new ones. Ms. Mullen replied Washoe County was very proud to have an infrastructure preservation program that was one of the first in the state or on the West Coast. The county set funding aside, similar to depreciation schedules, to repair facilities over time. There was a five-year program of replacement. A safety specialist was on-staff who inspected facilities, and safety issues received top priority in the infrastructure repair program.
Chairman Anderson noted, although terrible accidents occurred on a ski slope, people could not be prevented from skiing who thought they had greater skills than they had. He asked how the bill would work if an adult walked up to a youth at a skateboard park and the youth continued to demonstrate his speed and ability contrary to the rules and despite warnings. He expressed concern over the liability issues. Mr. Morgan replied, before a skateboard park was built in a community, youth still rode their skateboards on private property and in front of businesses to the same degree of risks as in a skateboard park. He suggested it was preferable to have the risks take place in a properly designed skateboard park with rules posted, proper fencing, and setbacks. The intent was to reduce risks by having them taken in a controlled environment.
Ms. Mullen stated the Skier Safety Act heightened awareness in the ski industry resulting in more people wearing helmets in ski areas. It was hoped S.B. 482 would have a similar effect on the skateboard enthusiasts.
Mr. Morgan presented a silent video showing various aspects of the new Douglas County Skateboard Park. He stated the bill was also, in part, about sending signals. He stated reaching youth was sometimes a difficult task to complete, but skateboarders had been working very hard to get skateboard parks built in their communities. In Douglas County, it had taken over seven years for a park to be built. He noted one of the issues to overcome had been the perception of taxpayers and property owners concerned about liability within the community or jurisdiction. A lengthy process ensued, including public hearings, to satisfy concerns that could be somewhat eliminated with S.B. 482.
Mr. Morgan noted, as he entered the Legislative Building for the hearing, he had seen a jogger and someone on a bicycle on the grounds, despite seeing a big sign indicating skateboarding was prohibited. He stated that illustrated the perception that skateboarders were not wanted, they were unsafe, and they caused a hazard to passers-by and to themselves. The bill would define responsibility and allow needs in the community to be met. Mr. Morgan stressed, in his entire career, he had never seen something so embraced by a teen population that desired self-directed play and adventure activities.
Mr. Morgan acknowledged a risk existed, but that very risk was what drove teens to a skateboard park. The skateboard park designed for Douglas County had a variety of skill levels that were clearly defined, and skateboarders developed their own etiquette.
Mr. Morgan stated modern parks were designed with playgrounds for young children, sports fields, and other things for adults and for fitness enthusiasts. He noted the teen population was the forgotten segment most of the time, and skateboard parks were one answer to that.
Mr. Morgan noted some of the young people who made the skateboard park proposal in Douglas County were currently in college, and, in follow-up conversations with those young people, they had commented they were glad their work had not been in vain; however, they wished there had been such a park for them when they were growing up in the community.
Mr. Morgan reiterated a skateboard park was like any other capital improvement in a community that needed to be maintained and repaired. He added state law required capital planning to include an operation and maintenance schedule. He opined it was no different than any other structure, a road, or a piece of equipment. It was still the organization’s responsibility to properly construct a facility, maintain it, and operate the facility safely.
Vice Chair Manendo stated some people, youth or adults, might not fit the criteria of Section 8 of the bill, but perhaps they would want to try a higher skill level. He asked if those people would be prohibited from doing so. Mr. Morgan replied that would be a personal choice. He noted the Vice Chair had used an example of a tennis court and stated those facilities had rules that must be followed as well.
Mr. Morgan stated park managers tried to anticipate what they felt was a reasonable risk and develop rules accordingly. Most tennis injuries are caused by players pushing beyond their ability.
Vice Chair Manendo stated he understood rules about glass containers or alcohol in a park, but he asked how such things could be policed. Mr. Morgan responded that he was unsure if he understood the question. Vice Chair Manendo asked if someone got hurt playing tennis because they had stretched their ability, was that the fault of the organization that constructed the tennis court. Mr. Morgan opined that was the fault of the individual, not the provider of the facility. Mr. Morgan noted the Douglas County skateboard park had been developed with varying degrees of challenges.
Ms. Mullen stated skateboard parks were a sport that had more inherent risks than did traditional sports. Recognizing that risk and understanding the adventurous spirit of teens were reasons why many states were adopting legislative rules for user conduct.
Chairman Anderson noted local cities and counties had programs that taught youth to ski, to swim, or to play tennis. He asked if the park departments planned to sponsor clinics to teach beginning to advanced skateboard techniques. Mr. Morgan replied “yes, that was a possibility.” Skateboarding was recognized as legitimate sporting activity.
Mr. Morgan referred to Vice Chair Manendo’s question, stating that there was more inherent risk in skateboarding, but it was also an issue of perception. He noted there were not a large number of people coming to the public meetings of the park and recreation boards stating, “Don’t build a tennis court because we are afraid you will be sued.” People did appear when skateboard park plans were discussed.
Assemblyman Nolan disclosed he was the Risk Manager for the United States of America Hockey League, which was the amateur affiliation for in-line and ice-skating organizations. Mr. Nolan stated he liked the intent of S.B. 482, in attempting to limit exposure to local entities. He noted one could travel past skateboard parks and see youths of all ages that were sometimes supervised, but other times were not. He stated clearly, when a young child walked through the door, even if rules were posted, some of the young people would not or could not read them.
Mr. Nolan referred to Sections 10 and 11 of S.B. 482 that stated if an injury or collision occurred, the park operator or an authorized agent must be notified as soon as possible. He noted in many cases parks were unattended and asked how reports would be made in those cases. He also asked what happened once an incident was reported. Mr. Kastens responded notification did not typically take the form of calling someone from the parks department when an incident occurred. He stated typically if there was an injury, someone called 911 to access emergency services; however, if injuries went unnotified, the parks department would not be aware if there was a crack in the concrete or a defect that needed repair. Mr. Kastens stated most parks had a park ranger program or a 24-hour call number that could be accessed.
Mr. Kastens said the first injury to occur at the Carson City park happened two days after the opening and consisted of a broken femur. The city had not been aware of the injury until about three days later when notified by fire department personnel who had responded to the call. He added the notification requirement was placed in the bill to hopefully allow the parks department to be kept aware of what was happening.
Mr. Morgan stated, as with any other regulation that might be adopted for a park, education took place either through a law enforcement agency or through the park ranger program. He commented the park ranger program performed maintenance functions sometimes up to two or three times a day. Park rangers also performed the education process every time they spoke to someone using the facility by reinforcing the rules and explaining them. Individuals were removed from the facilities until they had corrected the deficiency or complied with the rules.
Mr. Nolan stated he was still concerned with regard to children who were too young to understand what the rules of the park were. He asked if, by not reporting an injury, it prohibited the child from returning to the park, or if there was a design flaw or structural defect, it would remain unrepaired.
Assemblyman Gustavson stated he was in favor of the bill, but after watching the video showing activity at the Douglas County park, it did not appear rules were enforced. He referred to Exhibit F, which was a list of rules for the Carson Valley Skate Facility provided by Mr. Morgan. He complimented Mr. Morgan on the list and asked if Washoe County and Carson City had similar rules posted. He noted he had not seen them at parks he had visited. Mr. Gustavson referred to Exhibit F that stated, “If you do not follow the rules you can receive a ticket or be eighty-sixed.” He noted he understood what “eighty-sixed” meant, but asked what type of ticket could be received.
Ms. Mullen responded to the first question that Washoe County did post similar rules and regulations, and he noted the video had purposely portrayed youths not wearing helmets because that was a part of the educational process. Youths sometimes needed many reminders, but the county hoped parents would take some responsibility also. She noted one good part of the skateboard park experience had been that older youths were actually helping younger ones. She added getting youth to wear safety gear was sometimes a challenge.
Mr. Morgan replied to the second portion of Mr. Gustavson’s question. He explained the enforcement aspect came under Title 13 of the Douglas County Code where any infraction of a rule became a trespass violation. Non-compliance with rules was a citable offense. He added the park rangers actively educated those in non-compliance and thus far had a 100 percent compliance rate of those who were asked to go get a helmet or leave the facility. If someone chose not to comply, it was a citable offense.
Mr. Collins noted children in his district, whether they could read the rules or not, chose, in many cases, to ignore them. He saw the issue in southern Nevada being one of so much concrete that youth had been outlawed from such areas as washes, culverts, and bridges. He added skateboard parks had to be built to provide youth somewhere to use their purchases. He asked for confirmation that S.B. 482 simply set up a rule-making process to be as safe as possible.
Mr. Morgan provided two poster boards with large color photos of various areas of the Douglas County Skateboard Facility (Exhibits G) and (Exhibit H).
The Chair noted approximately 18 more people had signed-in to testify in support of the bill. He stated due to time constraints he would take one or two from the younger population.
Mr. Dan O’Sullivan, representing himself, testified to the positive effect of skateboard parks in the community. He stated the parks offered a safe and drug-free environment for youth and adults. He stated, if a young person was not involved in football, baseball, or another such sport, there were not many other activities offered to him.
Mr. O’Sullivan stated, although skateboard parks offered advanced obstacles, some youths would still be jumping off roofs and sliding down big staircases. He stated skateboarders took a risk, wherever they practiced, but parks offered a safe place where they would not be run over by cars.
Chairman Anderson asked how long Mr. O’Sullivan had been a skateboarder. Mr. O’Sullivan replied he had been an avid skateboarder for nearly five years. The Chair asked how many skateboards Mr. O’Sullivan owned, and Mr. O’Sullivan replied he owned a retail business that sold skateboards.
Chairman Anderson asked if Mr. O’Sullivan wore a helmet every time he skated. Mr. O’Sullivan replied he did because of his desire to set a good example for others. Chairman Anderson asked if he wore a helmet prior to owning a skateboard business. Mr. O’Sullivan replied he had worn a helmet because, prior to the time he started his business, there were not very many parks available. He stated a park he had attended during that time in Reno had required the wearing of helmets; however, he had not worn one when attending the Carson City park because, “No one wore them,” at that period of time. In a South Lake Tahoe, California park he wore a helmet because that rule was enforced. Mr. O’Sullivan opined it was very important to wear a helmet.
Mr. O’Sullivan informed the committee that he had read a magazine article recently that stated skateboarding would be added to Olympic competition in Greece.
Chairman Anderson noted the call to the Assembly Floor had been made and asked others if they had written material to present to the committee on the bill.
Mr. Bill Bradley, representing the Nevada Trial Lawyers’ Association (NTLA) testified the NTLA was strongly in favor of the recreational opportunities the counties were offering to young children.
Mr. Bradley stated the issue of the NTLA was not with the good or bad effect of the bill. He stated it was up to the committee to decide what the level of responsibility should be. He added the bill provided no responsibility on behalf of the park operators. He opposed earlier testimony and stated the bill provided absolute, unfettered immunity to the operator of a park.
Mr. Bradley stated if a railing was loose and users tried to contact the operators without success, and another user tried the railing and was injured, there was no responsibility under the statute. Responsibility was being created in the skateboarders and in the parents, an arrangement with which he agreed. No responsibility was created for the park operators.
Mr. Bradley stated comparisons had been made to the Skier Safety Responsibility Act, which had been brought before the committee approximately 15 years previously. He added that act provided no mention of immunity. To make S.B. 482 the best bill possible, everything in the bill about duties was appropriate, but absolute immunity should not be created. He suggested if the last two sections of the bill were deleted, it would be a good bill.
Mr. Bradley stated existing law allowed skateboard parks to be built. There were six parks in Washoe County, an unknown number in southern Nevada, one in Carson City, and one in Douglas County. He opined the system was working very well. He stated the insurance industry met with park operators and discussed what was reasonable or unreasonable, and a park was designed. That process had been working well for four years without destroying the responsibility of the park operators. The Skier Safety Responsibility Act delineated all the same measures as did S.B. 482. He stressed the bill was not addressing adults as it was in the skier bill, but rather addressed children and young adults. He stressed the children deserved the most protection as a policy statement.
Mr. Bradley said if the bill was crafted after the skier act, it should outline those things that should be done and still allow a jury the right to hear the evidence under the right circumstances. He suggested that might include whether there were prior problems and whether the concrete was cracked. Mr. Bradley stated, under current law, county responsibility was created by their need to do things appropriately, but under S.B. 482 the potential existed to not take due care and ensure the steps necessary to protect the children.
Mr. Matthew Sharp, representing the Nevada Trial Lawyers’ Association stated he had nothing further to add.
Chairman Anderson asked if there was any similarity between the proposals for skateboard parks and how swimming pool complexes were operated. He noted swimming pools were fenced with a lifeguard on duty and attempted to maintain water control and so forth. He asked how it could be expected for a public entity to establish a skateboard park without having some recognition that the person(s) using it had some level of responsibility as long as normal maintenance was done.
Mr. Bradley stated the analogy was very appropriate. Under the county swimming pool program, there was still a responsibility to protect the people using the pool. He reminded the committee that the cities, counties, and states already had sovereign immunity in that, irrespective of the nature of the injury or defect, a child’s claim was limited to $50,000. Under the worst scenario in a skateboard park, the county’s exposure was capped at $50,000; however, under the pool, park, tennis court program, or every other county recreational program, there was no absolute immunity.
Mr. Bradley concluded that if S.B. 482 was passed with the last two sections of the bill, it would represent a decision that inspection and repair were not necessary.
Chairman Anderson clarified that Mr. Bradley was opposed to Sections 16 and 17 of the bill. Mr. Bradley replied his concern was Section 16 of the bill only. Mr. Bradley expressed concern as well with Section 8, subsection 1, as well. He noted that requirement would be very difficult to impose on children.
Chairman Anderson asked if someone from the NTLA would be available to work with interested parties in support of the bill. Mr. Bradley replied affirmatively.
Ms. Mary Walker, representing the Nevada Recreation and Parks Society, presented a letter from the Carson City Juvenile Probation Department (Exhibit I) in support of S.B. 482. She did not provide verbal testimony.
Chairman Anderson closed the hearing on S.B. 482. With no further business before the committee, the Chair adjourned the meeting at 11:03 a.m.
Cindy Clampitt
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: