MINUTES OF THE
SENATE Committee on Judiciary
Seventy-First Session
March 14, 2001
The Senate Committee on Judiciarywas called to order by Chairman Mark A. James, at 8:34 a.m., on Wednesday, March 14, 2001, in Room 2149 of the Legislative Building, Carson City, Nevada and video conferenced to the Grant Sawyer State Office Building, Room 4412, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Mark A. James, Chairman
Senator Jon C. Porter, Vice Chairman
Senator Mike McGinness
Senator Maurice Washington
Senator Dina Titus
Senator Valerie Wiener
Senator Terry Care
STAFF MEMBERS PRESENT:
Bradley A. Wilkinson, Committee Counsel
Michelle Van Geel, Research Analyst
Ann Bednarski, Committee Secretary
OTHERS PRESENT:
Mark G. Tratos, Attorney
Helen A. Foley, Lobbyist, Clark County Health District
Denise M. Brodsky, Lobbyist, Nevada Tobacco Prevention Coalition
Lawrence P. Matheis, Lobbyist, Nevada State Medical Association
Robin Comacho, Lobbyist, American Heart Association
Brian McAnallen, Lobbyist, American Cancer Society
Ray Espinoza, Mayor, City of Lovelock
Todd Plimpton, Lobbyist
Mary E. Guinan, M.D., Ph.D., State Health Officer, Health Division, Department of Human Resources
Diane Lee Hart, Concerned Citizen
Jeanne Palmer, Clark County Health District
Harvey Whittemore, Lobbyist, Nevada Resort Association
Samuel P. McMullen, Lobbyist, Las Vegas Chamber of Commerce, and Retail Association of Nevada
Mary F. Lau, Lobbyist, Retail Association of Nevada
Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers and Convenience Store Association
Theresa Kawchack, Regional Supervisor, Winner’s Corner Convenience Stores, and Berry-Hinckley Industries
C. Joseph Guild III, Lobbyist
Jim Avance, Lobbyist, E.T.T. Incorporated
Chairman James greeted and welcomed Michelle Van Geel who was sitting in for Allison Combs. He opened the hearing on Senate Bill (S.B.) 47.
SENATE BILL 47: Provides for judicial approval of certain contracts involving minors. (BDR 11-260)
Mark G. Tratos, attorney, testifying from Las Vegas, was first to speak on Senate Bill 47. He began by explaining this bill is directed at judicial approval and the contracts of minors. The objective of this legislation is to address a growing problem in Nevada, as the entertainment industry continues to expand here, and more and more minors are employed in productions both in Reno and in Las Vegas, he said. He continued there is an increase in film and television activity in Nevada where children are employed and under contract. Las Vegas is also a popular spot to film commercials, he said. Sometimes a producer comes to hire a child and the child has some uncertainty about what is proper to be included in a contract and what legalities are involved, he explained. A minor, not yet at the age of majority, could disavow the contract when he reaches the age of majority, he explained. Furthermore, he said, this problem with contracts was addressed by the entertainment industry in California many years ago with the idea of having minors’ contracts reviewed by judges to assess whether the terms were reasonable and fair.
Mr. Tratos said S.B. 47 does exactly that for Nevada. It allows minors’ contracts to be submitted for judicial approval to review the material terms, and then be either rejected or approved by the court. If rejected, a provision is provided to resubmit the contract for another review; if approved, he said, the benefit is the producer is assured the contract will not be invalidated later. Another provision gives guardians and parents an approval and consent clause, he said. He commented the bill is very well drafted encouraging the growing and expanding entertainment industry here, and, especially, protecting the children while benefiting the producers who sign contracts with minors.
Chairman James questioned whether this bill applies only to contracts involving creative or artistic services. Mr. Tratos answered affirmatively stating S.B. 47 has been narrowly drafted to affect primarily the creative services industry. He said, if the committee were to broaden the application, it would be contrary to our culture, which does not generally employ children or expect them to enter into contracts.
Chairman James asked if S.B. 47 is a close replica of the California law governing minor entertainers. Bradley A. Wilkinson, Committee Counsel, Legal Division, Legislative Counsel Bureau, responded this bill tracks the California law fairly closely with some changes in the drafting by giving consideration to the laws of New York in this area. Mr. Tratos added California and New York are basically the two states whose statutes contain contract protection for minors. This bill is, in his opinion, a nice blend of California and New York law and a better bill than either of those states.
Senator Care asked if S.B. 47 is requesting an advisory opinion from the court. He also wanted clarification on wording in section 9, stating an interested party, such as a parent or guardian, “may petition” (the court to review) which makes it optional instead of mandated. He presented a hypothetical scenario wherein identical contracts, with the exception of this clause, allow one contracted party legal recourse, and not the other.
Mr. Tratos responded in California what Senator Care had logically reasoned, would be interrupted as the Senator suggested. He said this has been challenged in California many times because it is voluntary in nature. The concern there, he reported, is producers fear a contract signed by a 16-year-old may be challenged when the minor turns 18 and parents want to verify their child’s contract is fair. Many times however, he said, it is the producer who wants assurance the contract is valid, particularly in larger productions such as film and television. It is almost a routine practice to review contracts, he said. In response to Senator Care’s question regarding an advisory opinion from a court, Mr. Tratos said, it is not an opinion; it is expected to be a part of the creation of a business court function in Nevada.
Mr. Tratos said the first time one of these contracts is presented in our district courts, the judges might be surprised and need some time to acquire a sufficient body of knowledge to feel comfortable in rendering decisions on entertainment contracts for minors. He explained in both California and New York, the judges have an opportunity to rely on expert opinions of people in the entertainment industry to determine if language in the contract is standard for the industry. He added, he felt sure Nevada judges, in their concern for minors, would also avail themselves to such experts.
Senator Care then asked what legal effect a lawsuit would have for breach of the court’s approval of a contract. Mr. Tratos replied sections 16 and 17, of S.B. 47, narrowly draft the areas of concern, stating a breach of contract is still a breach of contract no matter what age the party. The protection is aimed at preventing a person who signed a contract at the age of 16 from returning at age 18 and saying he signed this contract when he was a minor; therefore, the contract is invalid, he explained. Continuing, he said, however, if a producer engages in an activity constituting a breach of contract, the minor still has the same remedies of anyone standing in the shoes of an adult; therefore, they do not give up any rights. The only thing they do forfeit is the right to say, “I was a minor and I didn’t know what I was saying at the time.” He explained the reason they are giving this right up is adults, specifically judicial adults (judges), review the contract to make sure the terms are clear and fair. If, he repeated, there is a change of circumstances and a breach occurs either on the part of the child or the producer, the standard laws for breach of contract apply.
Senator Wiener asked for clarification about the definition of a contract in section 3 of S.B. 47. She asked if the words defining “contract” are legalese as they read, “proposed contract.” Mr. Tratos believed the phrase referred to a contract entered into by the parties before asking for approval. He said standard practice in California and New York is to draft a contract satisfactory to both parties, submit it for approval from court, and then enter into it.
Senator Wiener next asked about the words “tangible” or “intangible” properties in section 3, subsection 3, paragraph (a) of the bill. She reasoned “intangible” referred to a performance. Mr. Tratos explained “intangible,” such as singing on a recording, is encompassed in the wording of the bill and part of the contract. Senator Wiener asked about the length of a contract, questioning whether 5 years was a magic number. The response from Mr. Tratos was California law has a 7-year prohibition on personal service contracts; New York has a more restrictive prohibition of 5 years. In drafting this bill, the Legislative Counsel Bureau, selected the shorter of the similar laws, he stated. Public policy issue, he explained, applies to these contracts for minors, so as they grow and refine their talents, they have opportunity to renegotiate their contracts. This insures minors are not going to be subjected to long contracts, he said, adding he believed 5 years was both fair and reasonable. He conceded however, the length of the contracts for minors was something legislators could decide.
Senator Wiener asked for an example of a motion to modify the amount or percentage as written in section 13 of S.B. 47. She wanted to know what might occur to prompt these changes. Mr. Tratos answered, using a recording contract as his example, if a minor were asked to perform as part of a group, the “artist” word refers to the entire group and each is paid a percentage of the whole. He explained, in a four-member group, a 12 percent royalty would result in each member receiving only 3 percent and a judge might conclude it is not a reasonable amount, resulting in a petition to change the amount or percentage paid per member of the group. This allows for modification of the terms but keeps the general contract in tact.
Senator Care then asked about modifying other aspects of the contract similar to those provisions in sections 12 and 13 of S.B. 47. He also wondered what the consequences would be if a minor entered into a contract anyway, after not getting approval from the court. Mr. Tratos said there is nothing preventing them from entering into an unapproved contract but stated what is lost is the benefit of a judicial approval. It means, he explained, the producer loses the ability to rely upon court approval of a contract as a defense to invalidation attempts. Senate Bill 47 makes it safer for businesses to contract with children; equally, it makes it safer for children to enter into a contract because someone more knowledgeable than their parents is looking at the contract to determine fairness, Mr. Tratos said. He continued, if a minor enters into a contract without the court’s approval, he preserves his ability to terminate the contract based on the validity of his minority age status. Regarding the modification of other terms of contract as is outlined in sections 12 and 13 of S.B. 47, Mr. Tratos believed the bill could be expanded to include modifications in other elements of the contract.
Chairman James thanked Mark Tratos for his testimony, closed the hearing on S.B. 47 and introduced the discussion of S.B. 258.
SENATE BILL 258: Authorizes state agencies and local governments to adopt more stringent restrictions governing tobacco and products made from tobacco than restrictions imposed pursuant to state law under certain circumstances. (BDR 15-1299)
Helen A. Foley, Lobbyist, Clark County Health District, spoke in favor of the bill. She said she appreciated her request for this bill being honored and introduced. Ms. Foley said, the exclusions and exemptions including casinos, bars, taverns, and bars within restaurants requested are part of the general category of “licensed gaming establishments” (S.B. 258, page 1, line 8) but the wording of the bill draft defeats the purpose of the proposed legislation. She asked the Legislative Counsel Bureau to reword the bill and include a definition of “casino.” The restrictions of this legislation, she explained, would prohibit smoking in slot areas within retail businesses but exclude casinos, bars, taverns, and bars in restaurants. These establishments would have relaxed standards, known as “non-restricted operations,” compared to those proposed in this bill, she added. She explained slot machine routes and inter-casino linked systems include grocery stores; therefore, necessitating the rewording and restricted gaming places specifically clarified. She added the request for the exemptions was an example of the power and capabilities of the lobbyists who represent them; she said the excluded businesses are all adult-only establishments.
Next, Ms. Foley talked about a bill in the Assembly judiciary committee on smoking in different places. She remarked Harvey Whittemore, Lobbyist, Nevada Resort Association, and RJ Reynolds Corporation, spoke at the Assembly meeting about “adult choices.” She presented her point as people having the option of going to casinos and bars but, by necessity, must go into grocery stores, for example. Using the grocery store to emphasize her point, she said many children and senior citizens go shopping and cannot handle breathing tobacco smoke. Ms. Foley said she is not asking to outlaw tobacco, but rather give local governments the opportunity to have stricter laws than the State in this area and, have the right to control where smoking is allowed.
Ms. Foley said in stores and restaurants with designated smoking sections, a person with breathing problems could not escape the secondhand smoke in an establishment where people are smoking within it, even if it is restricted to designated areas. She said this is a civil liberty imposed on people, stating Nevada law is tough on not allowing local governments to have the opportunity to eliminate smoking in certain places. She called it shocking because Nevada state law allows smoking on school campuses and health care facilities; she explained local control is superseded by state law. She introduced the bevy of speakers which included representatives from all the health districts in Nevada referring to them as “the diseases”: heart, lung, and cancer societies, and the medical association. She concluded by encouraging the committee members to decide how stringent our laws restricting smoking would be. She asked them to consider empowering local governments to ban smoking in places where children or seniors go (Exhibit C and Exhibit D).
Senator Care said he represents a part of Las Vegas, a part of Henderson, and a part of unincorporated Clark County. He asked Ms. Foley if she had any discussions with any of these entities about what specific actions each would want to take if S.B. 258 were enacted. He clarified his inquiry asking precisely what they are willing to do. Ms. Foley confessed she did not have specific information but assured Senator Care one of the upcoming speakers did have an answer to his question.
Senator Porter asked Ms. Foley to verify smoking is allowed on school campuses. Ms. Foley explained there are areas on campuses where smoking is permitted, adding there are cigarette butts however, all over the grounds. She clarified her answer, stating students cannot smoke, but adults are permitted to smoke in the presence of students. Senator Porter mentioned a bill presented a few years ago, making it illegal for anyone under the age of 18 to smoke was opposed by the Clark County Health District. He admitted he was a bit confused about the message today. He joined Senator Care’s curiosity to hear what local entities within the state were willing to do. He asked if the health district had taken a formal position on S.B. 258. Ms. Foley responded affirmatively mentioning a representative from the health district would state support of the bill.
Senator Washington asked if the existing statutes contain lists of places where smoking is prohibited and also contain a choice for the owner/operator to designate smoking or no smoking allowed. He said he believed the existing list is already quite long including public areas such as bus stops, elevators, and stores; he asked if we simply increase the list are we just further limiting the choices of people who smoke.
Ms. Foley responded with, “Yes, we are limiting smoking by requesting this. We are potentially limiting the locations where people can smoke. Also, we are providing nonsmokers with places to be comfortable and able to breathe in public buildings.“
Senator Washington repeated his concern stating places such as hotel and motel operators and restaurants, for example, currently have the choice of permitting or prohibiting smoking, so why should we interfere with their existing choice? Ms. Foley said many deaths are caused by tobacco smoke; we have a concern for citizens to be able to walk around freely without becoming ill from cigarette smoke. She mentioned a study recently conducted by Magellan Research in Las Vegas; the results rank 70-80 percent of those polled want a smoke-free environment (Exhibit E). She added, “The smoking problem has become simply intolerable.” Ms. Foley described the state of Nevada as, “Pitiful when it comes to allowing people to breathe.” She claimed Nevada has the highest percentage of smokers in the United States.
Senator Washington voiced his appreciation for her dialogue but said again why, if an operator/owner has options of smoking or nonsmoking, should we continue to mandate permission to smoke or prohibit it? Ms. Foley said she was not asking to expand the existing list, rather to give local governments the opportunity to conduct workshops, conduct extensive hearings, and talk to residents, and allow the elected officials closest to the people to decide appropriate standards for their community.
Chairman James questioned why, if the numbers are so high, there is no market for smoke-free areas. He explained the marketplace is always the best solution to address the problem instead of having the government step in and decide what can or cannot be done. If the statistics are so overwhelming, he continued, people would say, “We will not go there if there is smoking and then some entrepreneur will say my place is smoke-free . . .” He added currently restaurants have waiting times for non-smoking tables and the smoking section is usually available immediately. If, he pondered, there is such dichotomy in the demand, why is it not manifested in the market, instead of leaving it for the government to solve?
Ms. Foley responded the fear of a competitive disadvantage economically, with the loss of smoking customers, is the problem. She added there should be a choice available so people can choose to go to a smoke-free place; she said currently there is, “absolutely no choice.” Chairman James said the ideal situation would be to have a choice. Ms. Foley promised a report during the meeting from the cancer society on what happens when local entities decide these issues.
Denise M. Brodsky, Lobbyist, Nevada Tobacco Prevention Coalition (NTPC), spoke next. She said she represented a diverse, dedicated, and committed group of agencies and individuals throughout the state whose goal is to reduce the high prevalence rate of the use of tobacco by youths and adults. Ms. Brodsky stated the membership includes county and state health departments, the lung, cancer, and heart associations, health care providers and professionals, and several youth organizations. She announced today, March 14, 2001, was Nevada Tobacco-Free Day.
“The philosophy of NTPC is by working together, we will create a healthier Nevada for all its citizens, especially seniors and children,” Ms. Brodsky said. And, she added, it is with this spirit they come forward. She referenced an article in the Las Vegas Review-Journal reporting Nevada has the highest death rate from smoking-related diseases in the country, highest asthma rate, highest percentage of adult smokers, and the weakest tobacco laws in the United States (Exhibit F). Ms. Brodsky continued, Nevada state law prevents local district boards of health, county commissions, and city councils from considering local initiatives and/or local ordinances pertaining to the issue of environmental tobacco smoke in public places including: grocery stores, public schools, health care facilities, and other public places where both adults and youth congregate. As a statewide organization, the NTPC believes it is local governments who are better able to offer local solutions to local issues and to respond more quickly to the health and safety needs of their constituencies. She cited a recent telephone survey of 400 respondents yielded 87.6 percent believed smoking should be prohibited in grocery, convenience, and drug stores, and 89.1 percent believed children should not be exposed to environmental tobacco smoke. She expanded her point saying children do not have a choice when they walk through a grocery store and they are required to go to school daily where they walk through outside areas exposed to environmental tobacco smoke. State law prevents local decision-makers from protecting the health and welfare of their constituents, she said.
Ms. Brodsky said she was putting on a new hat, now representing the Clark County School District, on which she was elected a school board trustee. She said her personal experience keeps her from banning smoking at public schools because state law does not allow it. She reported her children watch their adult role models take a smoking break outside, on the school campus, as they walk over hundreds of cigarette butts on their grounds. Finally, she said, she is not looking for a new law but, instead, the right for a local decision-making privilege.
Senator Care commented he understood her point but wanted her to understand all Nevada laws are our laws, expanding, either locally or statewide, he said, we are all Nevadans. Adding, he wanted to disperse the mentality of “us versus them,” conceding, however, the State may have failed in its duty to regulate smoking. Senator Care noted the Las Vegas Review-Journal article referenced heavy lobbying by the tobacco industry. He clarified for the record, under the tobacco settlement agreement, tobacco lobbyists are not permitted to do this.
Senator Porter added a comment on the Las Vegas Review-Journal article reporting if the current trends continue, 31,000 Nevada youths will die prematurely as adults from smoking-related problems; adding, currently 7000 Nevada kids become smokers every year; and presently, one-third of Nevada high school students smoke. He said his frustration stems from the effort of the Senate as they tried very hard last session to establish laws addressing the source of the smoking problem in schools. He was confused when the attempts to take serious steps towards reducing the death rate and reduce youth smoking with government regulation were opposed by health organizations. Senator Porter stated here we are today trying to shift the power from the state to local entities. He continued the steps we have proposed to deal with the smoking problem have been opposed by local health agencies. Specifically looking at the health district, he said, “We just spent two years on a hearing regarding the health district including the challenges of management and structure with the community, begging the state of Nevada to take control of air quality.” Senator Porter added most groups come to the State for help because they are upset with local governments’ lack of response.
Ms. Brodsky responded with comments about understanding the frustration voiced by Senator Porter, stating her group too is very frustrated. She said our youth are regularly bombarded with marketing and advertising, adding, young people are the front for tobacco marketing. In addition, she said good public policy does change habits. It would help to get our youth to change their attitude towards smoking but, she said, we still have role models who teach our children smoking and health care providers who smoke. Ms. Brodsky said she is not interested in interfering with adult choices, but she does not feel our children have to be exposed to it.
Senator Porter said currently it is illegal to sell cigarettes to minors but it is not illegal for them to smoke. Ms. Brodsky agreed it was a confusing set of circumstances, but feels local communities should have the ability to determine the limitations and restrictions of appropriate smoking for adults. She added it is a national trend for people to want and to seek more local control and access to their community governments.
Lawrence P. Matheis, Lobbyist, Nevada State Medical Association, and Vice President, Nevada Tobacco Prevention Coalition, said what we are talking about in S.B. 258 is tobacco policy in Nevada, focusing on the appropriate levels of freedom of decision-making at all levels of government. Continuing, he did not feel there was any need to debate tobacco is hazardous to health. In Nevada, he said, there is a disproportionate use of tobacco coupled with a disproportionate number of tobacco-related health problems.
Mr. Matheis told the committee, he recently made a presentation to the President’s Cancer Panel, a national group which advises Congress and the President on the federal cancer policy. The question he prepared to address was why different people with the same diagnosis of cancer receive different levels of care. Mr. Matheis stated his purpose was to propose something radical, which was cancer treatment be removed from private insurance coverage and ineligible for Medicare for smokers. Then, there would be a universal standard. Instead of his prepared presentation, he said the panel spent an hour drilling him on why Nevada tobacco statistics were so bad. Chairman James asked if the numbers were so bad because more Nevadans smoke or more are exposed to secondhand smoke. Mr. Matheis responded since more Nevadans smoke, more Nevadans are also exposed to secondhand smoke. He noted the why of the smoking rate is complex, but added public policy has something to do with it. Nevada’s public policy is different from other states, most obviously, he said, on the issue of the State preempting any other authority or entity to adopt ordinances or policies which are more stringent.
Mr. Matheis said one of the reasons there is a tobacco problem in Nevada is because it is a very libertarian state believing in personal choices and personal behaviors. In many respects, he went on, this has very good results but can have dire consequences, as is the situation with smoking and tobacco use and associated problems. As Nevadans, he said, we have a fierce belief in the right to make decisions affecting our own lives. Mr. Matheis cited, as an example, the ongoing battle Nevada has with the federal government when it preempts the authority of the State of Nevada, such as in the nuclear waste issue. He said if you extend the same attitude to smoking and tobacco, with one level of government preempting the ability of another level of government, elected by the same constituents, a conflict exists. He went on to say in Nevada we have chosen to preempt the school boards, county commissions, mayors, city councils, district boards of health, and other elected groups from the ability to choose the policies for their own communities. Mr. Matheis stated:
I am here today to acknowledge that maybe our tobacco policies are not working because our tobacco numbers on our health are so bad that . . . instead of isolating the decision-making to only every 2 years for 120 days here in Carson City that in fact we should allow all the other local entities, all the other elected local officials who are elected by your constituents . . . [to make or change public policy]. We want to seek to find public policies that actually work, that actually discourage tobacco use, that actually make it possible for us to improve our numbers as a state . . . How is it that there is this fear that they [local officials] are going to run amok?
Senator Porter emphasized local officials he talked with recently stated they are not interested in S.B. 258. Then, he asked which initiatives regarding smoking have been presented by Mr. Matheis’ organization to the Nevada Legislature have not passed? Mr. Matheis responded there was a comprehensive bill in 1995, heavily lobbied by the tobacco industry, which he added, was not restricted at that time, but it was eviscerated. The proposed law, which did pass, set up the existing preemption but also provided extensive youth limitations, eliminated smoking in grocery stores. He said, without enumerating, there have been “a number of bills over the years.”
Senator Titus said Mr. Matheis seemed to be very passionate about the smoking issue. She verified the reason for exempting casinos and taverns was because they are considered adult places but questioned the regard for the people who are employed at them, and therefore, exposed to secondhand smoke. She said in California it is a labor and health issue for employees. She asked Mr. Matheis how he justified the casino secondhand-smoke issue when he is so compassionate about everyone else.
Mr. Matheis said the secondhand-smoke issue is still under consideration but right now we are dealing with the preemption issue of local authorities to go on beyond the State law regarding casinos and bars. He said currently there is a bill in the Assembly to address smoking in casinos and bars.
Mr. Matheis then focused on S.B. 258 stating if local authorities are given the option to make policy about tobacco use in their communities, they may find something is more effective. He warned if nothing happens in the next few years locally, specifically, no one takes responsibility, there is no way to come back to them in a couple of years. Now, he reiterated, is the time to allow local governments to implement what their citizens want. Mr. Matheis stated we have a tobacco epidemic in Nevada, how are we going to deal with it?
Senator Titus asked Mr. Matheis if the Clark County Health District or any of these advocacy organizations or any local governments received any money from the tobacco settlement given to the state. He answered affirmatively, explaining some have received money used to fund programs in Nevada. She asked for an example of what was being done with the settlement money. Mr. Matheis replied there was a wide range of preemption, education, intervention, and cessation programs. Some representatives of the different programs were present, he said. A policy change, he added, should not be viewed as the answer but rather a part of setting a climate where answers will emerge and the policy situation will improve. Senator Titus said there were currently ads running to support this legislation and asked if tobacco settlement money was used to pay for them.
Ms. Brodsky responded there were speakers forthcoming who would talk about what they are doing at the local level. Senator Titus asked again about the settlement money and the ads. Ms. Brodsky said she did not know, but hoped, “When we get to that, we will be able to answer that question.”
Chairman James said it would be interesting if the state tobacco money was being used to lobby the state. He said, emphatically, we do need an answer to this question in terms of this legislation. If secondhand smoke is a health problem and statistics probably support that belief, it seems it would be a more acute health problem for someone like a casino worker who is inhaling smoke 8 hours a day, 5 days a week than it is for a person who gets the occasional secondhand smoke. He noted S.B. 258 would do nothing for casino workers. Chairman James added we have to be intellectually honest with this legislation. He understood they were talking about the children, but a non-smoker who works in a casino is basically an involuntary smoker.
Mr. Matheis said there is an Assembly bill addressing the casino/smoking policy. Our bill, he said, is narrowly focused on one public policy issue in Nevada, one significantly different from most other states in our country. Only six other states have this more stringent preemption of decision-making at all levels of government below the state. He went to say S.B. 258 does not address everything, and though we have tried comprehensive legislation, and though it is perhaps easier, it is also frustrating for those of us who want to see some limited steps in the right direction.
Senator Washington wanted to be clear smoking is not advocated at the state level, but when dealing with public policy by asking for preemption at the local level, it appears our legislation is being circumvented because the desired results did not happen. He explained many compromises were made legislatively to accommodate the will of all the people, using grocery stores as his example. Senator Washington said this is not sounding like we are talking about smoking or secondhand smoke, but circumventing the legislators to achieve a result appeasing to your point of view.
Mr. Mathias completely denied circumvention as the goal but suggested instead S.B. 258 was designed to supplement the Legislature with the wisdom of other elected officials at other levels of government. “We want everyone included in the debates and discussions about what is the best tobacco policy,” he said. “We are asking for the removal of the total preemption of local authority and defer for a time to ascertain how effective it is.”
Senator Porter said, regarding the involvement of local government, he spoke to the mayor of Henderson today who is not interested in taking on the duty or responsibility of the smoking issue. Though Senator Porter realized the discussion of this bill was in favor of local government, he queried whether local government entities were interested in the smoking issue and asked if all those potentially involved had been contacted regarding today’s initiative.
Ms. Brodsky offered she had talked with Oscar B. Goodman, Mayor of Las Vegas, on Monday about this bill. She said he was very interested in having the ability to make decisions at the local level regarding smoking. She said the City of Las Vegas was drafting a letter stating their involvement and reported there were people present from Las Vegas who might be able to add more to validate the city’s interest. Ms. Brodsky said she also spoke to Bruce Woodbury, (Chairman, Board of Commissioners, Clark County) and he strongly supported “Home Rule.” She said two years ago there were resolutions drafted, signed, and approved by local county commissions and local city councils to verify interest already existed.
Chairman James then asked about a “No Smoking Indoors” statute, asking if Mr. Matheis’ group would support it. First, the reaction was a quiet pause, followed by laughter in the committee room, indicating disapproval. Chairman James responded, “So much for local control, right?” which prompted additional audience laughter.
Mr. Matheis said California had many aggressive tobacco policies; some became state law, and were enforced in local areas through local initiatives. He said there are districts where no smoking is allowed in California. He added many options preclude initiatives at the local level. Mr. Matheis said options should be encouraged in discussion. He suggested some local governments do not express interest because they are precluded from decisions on tobacco issues, stating if preemption is lifted, local officials will hear from their constituents. He predicted then, there would be some local community actions. Mr. Matheis stated the barrier to discuss issues must be removed.
Senator Porter reported public television, in Las Vegas Channel 10 and northern Nevada’s Channel 5, are required to run 15,000 anti-smoking spots. This is part of a partnership between the Legislature and public television. He explained how the Legislature has helped address the smoking problem with our youth and working people in the state of Nevada. He asked to be recognized so Nevadans will feel the state has been involved in the tobacco issue.
Mr. Matheis agreed with Senator Porter but added we still have a problem. He said the television spots were made possible because of the tobacco settlement awarded to the state. He added despite opposition his group strongly encouraged Nevada to participate in the suit against tobacco companies. Every effort, he continued, cumulatively should lead to better public policy.
Robin Comacho, Lobbyist, American Heart Association, said she represents the one out of three Nevadans who have died, according to their figures, of cardiovascular disease. Tobacco, she said, is the number one preventable cause of cardiovascular disease. She continued many say smoking is a matter of personal choice, as is drinking or driving a car. It is when personal behaviors can cause devastating consequences to others, we look to our elected officials to protect us, she said. Ms. Comacho announced she is here to speak for the majority of Nevadans who choose not to smoke but do not have the choice of protection from exposure to secondhand smoke in public places. She said figures secured by the American Heart Association indicate Nevada residents are looking for our elected officials to protect them from the dangers of second-hand smoke. Ms. Comacho stated seven out of ten or 1.3 million do not smoke, but some of this group will die from environmental tobacco smoke. The American Heart Association recently commissioned a poll conducted by Magellan Research, she added, with a sample size of 450 registered voters as respondents. She shared four results of this poll: 86.6 percent of Nevadans favored a smoke-free workplace; 74.2 percent agreed the State of Nevada has a duty to protect the public health by prohibiting smoking in buildings frequented by the public excluding casinos and taverns; 77.2 percent polled believed the public should vote directly to prohibit smoking in buildings frequented by the public; and 79.7 percent agreed local communities need to pass ordinances so nonsmokers do not have to be exposed to hazards of others’ cigarette smoke at work or in public places. She asked the committee to please listen to what seven out of ten Nevadans are saying (Exhibit E). Next, Ms. Comacho announced the Nevada Heart Association does not accept tobacco settlement monies.
Senator Care said he talked with Ms. Comacho in the hall to express his concern about the settlement agreement itself. He explained the tobacco settlement agreement seems to require the state to be “responsible for the policies designed to reduce youth smoking.” He said one could argue the state has weak smoking policies, but his concern is the state does have a settlement agreement with tobacco companies naming the state as the recipient of settlement monies. Senator Care read a portion of the settlement and then asked what implication S.B. 258 has on the settlement agreement with tobacco companies.
Ms. Comacho responded the American Heart Association sought the Attorney General’s help to clarify the implications of the tobacco settlement and this legislation but were not successful. She deferred the question to Brian McAnallen.
Brian McAnallen, Lobbyist, American Cancer Society, said he is the director of Government Relations, American Cancer Society, in Nevada, Arizona, and New Mexico. He worked with the tobacco Multi-state Settlement Agreement (MSA), which was the guiding document in 1998 when it was signed by 47 state attorneys general. The specific restrictions on involvement in local issues or clean air issues dealt with whatever happened prior to 1998, he said. The tobacco industry, he verified, was precluded from getting involved in any local ordinances prior to 1998. Mr. McAnallen did not know if they could get involved should S.B. 258 become law and a local entity enacted a smoking ordinance. He said tobacco companies are precluded from the marketing practices they had before 1998. The conditions no longer permitted are enforced, supervised, and regulated by attorney generals’ offices.
Senator Care said he wanted to avoid a violation of the tobacco settlement agreement thereby risking further litigation on the conditions of the agreement. Mr. McAnallen responded saying the issue of violation had not been brought to the attention of other states, adding the American Cancer Society is a national organization working in all 50 states. He reiterated local involvement has not been a problem nor is it construed as a problem now. He quoted a letter from another state’s attorney general which clarified local ordinances in regard to the MSA had not been a problem.
Mr. McAnallen then addressed the Judiciary Committee, stating over 700,000 Nevadans are touched by cancer. He expressed understanding for the committee’s frustration with the local issue. He said Chairman James’ question about supporting state legislation to prohibit smoking indoors would be supported by the American Cancer Society, declaring, “That is our mission.” The conflict comes in regard to local control; on average, it takes between 1.5 to 3 years to pass a local ordinance explaining change does not happen overnight or in a vacuum. Mr. McAnallen suggested it might not be right for Nevada cities, such as Henderson, to work on this now. Getting localities to work on the tobacco problem is a time-intensive process. Authorities have to assess the readiness and the willingness of their communities to change.
Senator Porter asserted his discussions with the mayors and commissioners in the Las Vegas and Henderson metropolitan areas indicate the smoking issue is currently not a “burning part of their agenda.” Rather, he suggested they want to help curb the problem.
Mr. McAnallen stated he only wants local communities to be able to investigate the possibilities of changing smoking policies. He explained that businesses have to want to get involved. He said chambers of commerce generally do appreciate uniform laws from community to community as it eliminates confusion between jurisdictions. Mr. McAnallen mentioned different zoning laws, tax rates, and health laws already exist between cities. Everyone, he explained, has to be involved including citizens, businesses, and civic leaders. He added, based on the American Heart Association’s poll, there are a number of Nevadans who want to see local control.
Mr. McAnallen mentioned Mesa, Arizona, a municipality of over 600,000 residents, near Phoenix, now is smoke-free in public places. He reported the neighboring communities, Tempe and Gilbert, do not have the smoke-free ordinance and there has not been a tax-rate increase or decrease in any of the three municipalities. Basically, he said, a smoke-free community did not cause new problems.
Ray Espinoza, Mayor, City of Lovelock, said he was here to support S.B. 258, specifically, page 2, line 8 of the bill stating the wording was changed from, “local governments ‘shall not’ to ‘may’ impose more stringent restrictions on smoking . . .” He proposed his plan would initiate a restriction with the cooperation of community members, school district personnel, and young people for an ordinance prohibiting youth under 18 from congregating near schools. He understood it would take some time. Mayor Espinoza reported there is a problem near schools where smoking students meet for purpose of smoking and encounter nonsmoking students; they exchange jeers. This, he said, represents a potential problem to the community.
Todd Plimpton, Lobbyist, spoke on behalf of the Pershing County School District and echoed Mayor Espinoza’s words in support of the bill. He said as a school board trustee for 9 years, he is appalled by the problem smoking presents because Lovelock has a high school next to an elementary school; therefore, the 5- to 9-year-old students have to walk past a public easement, where high school students gather to smoke. He admitted being a tobacco user, but said he recognizes there is a problem with youth smoking and it currently cannot be solved through local laws.
Mary E. Guinan, M.D., Ph.D., State Health Officer, Health Division, Department of Human Resources, voiced her support for S.B. 258 and submitted a written statement of her position (Exhibit G). She said Nevada has the highest rate of smokers at 33 percent of adults and 35 percent of adolescents and teens smoke cigarettes. Smoking-related diseases are the biggest killer of Nevadans and it costs the state hundreds of millions of dollars per year in medical care, she added. A strong grass roots coalition to initiate programs to reduce smoking, she continued, has been stymied by the state’s tobacco preemption law. Passage of this bill would allow the coalition to advocate for restrictions in their communities against cigarettes or tobacco products close to schools, she said. In addition, she continued, this law would permit communities to decide on mandatory smoke-free areas. Dr. Guinan said the United States Public Health Service objective is, by the year 2010, all states will repeal their preemption laws regarding tobacco. Nevada, she said, has one of the most stringent tobacco preemption laws in the country. She concluded her testimony stating community-based tobacco control efforts are often more effective than any state or national attempt to reduce cigarette smoking and related health problems (Exhibit G).
Diane Lee Hart, Concerned Citizen, representing the Stop Tobacco Use in Clark County Coalition (STICCC), testified next. She explained the organization consists of health organizations and concerned citizens who are also members of the larger coalition, NTPC. She chose to speak as a concerned citizen who leads this organization of 1700 members. Their goal is to be able to do the daily business of living in a smoke-free environment. Ms. Hart claimed it was very difficult to be heard on this goal, stating the majority of people do not have choices about basic things like shopping. She claimed there is only one smoke-free grocery store, (Wild Oats Market), and one nonsmoking drugstore (Walgreens Drug Store), in Las Vegas. She said her research found there are 65 smoke-free restaurants there; she added she has taken it upon herself to spread the word about the nonsmoking attraction of these restaurants. Ms. Hart concluded with commentary stating smoking would become a political issue in future campaigns.
Jeanne Palmer, Clark County Health District, spoke in favor of S.B. 258 stating there is a public health burden associated with Nevada’s high smoking rate. She described it as a public health crisis in need of action. A Tobacco Institute priority in 1993 was to encourage and support statewide legislation preempting local laws including smoking, and tobacco advertising, sales, and vending restrictions, Ms. Palmer said. This strategy, she reasoned, had greater potential for passage of strong tobacco laws at the local level. There were logistical difficulties for the tobacco industry to invest resources to address ordinances in multiple local jurisdictions. Ms. Palmer added the Centers for Disease Control listed the elements needed to build successful tobacco use prevention and control programs to include: community participation, establishment of public and private partnerships, strategic use of media, development of local programs, coordination of statewide and local activities, linkage of school-based activities to community activities, use of data collection and evaluation techniques to monitor program impact, changes in social norms and environment supporting tobacco use, and policy and regulatory strategies. The public health community is putting these things together, she added. Ms. Palmer concluded with a plea for help.
Senator Titus asked again for someone to answer her question regarding the use of tobacco money for advertising. Ms. Palmer answered:
Tobacco settlement funds were not used for the ad you are referring to. We have multiple funding sources for tobacco prevention programs and we have partnerships that we use to support preventative health initiatives which is the mission of the health district.
Ms. Palmer then asked for focus on the kids featured in the ad who are from Nevada who themselves have formed their own coalition. She said they are called, “Exposed.” She read their mission, “Our mission is to inform teens about the lies put before them by the tobacco industry. We are tired of being the target of their marketing and will no longer be victimized by their need for profit. Rejection is the weapon in the fight for our lives.”
Chairman James thanked Ms. Palmer for reading the kids mission statement expressing regret all young people did not share the sentiment. He said his daughter is in junior high where smoking is pervasive. He said it is difficult to understand.
Harvey Whittemore, Lobbyist, Nevada Resort Association, spoke first in opposition to S.B. 258. He said this bill and the proposed amendments hopefully would not include any members of the resort association. The consistent concern to modify the areas of exemption would simply be an attempt by the proponents of anti-tobacco lobby to preclude the smoking of a legal product in the state. He said over the years there have been significant debates over what a proper balance is and where smoking should be allowed and where it should not. Mr. Whittemore reminded committee members that during the 1999 Legislative Session a lot of time was spent deciding where smoking was to be allowed within gaming confines of grocery stores. The policy, which is less than two years old, provides for a complete change in the way grocery stores are constructed in the year 2010. He said it was the year deemed to be the most appropriate time for these changes to occur in grocery stores, and the Legislature agreed with this established time frame.
Continuing, Mr. Whittemore felt there were a number of misconceptions about this issue. He said he wants to make sure the record is straight by simply looking at the law with respect to public buildings. The law gives “The person in control of public building,” he interjected that means at the local level, “shall post in the area signs prohibiting smoking in any place not designated for that purpose . . .” (S.B. 258, section 3, subsection 3, paragraph [a]). Therefore, he explained, suggesting smoking is taking place in public buildings, other than in designated areas, is senseless because, he said, the law allows and defines public buildings. These include county, city, school district, or other political subdivisions of the state used for public purpose. Mr. Whittemore reasoned the suggestion smoking is taking place in these public places is inappropriate. He reiterated it is the local people who are in control of the public buildings located in their municipalities who decide to prohibit or to designate a smoking area.
Mr. Whittemore explained this is called a “camel-nose argument” because of the proposed language. For example, he said, how do you read lines 21 and 22 of page 2 of the bill with respect to those provisions in the existing law? He continued, saying restaurants with a capacity for over 50 patrons are able to designate smoking and nonsmoking areas. He said if this bill keeps them (restaurants) from adopting a more restrictive policy, what is the purpose of the bill? Mr. Whittemore stated if a more restrictive smoking policy was desired in restaurants then this bill would change the operations of the businesses he represents. Even with the existing language the law is unclear, he said, adding with the proposed language, it involves precluding smoking in the areas where we have the obligation and the opportunity to designate smoking and non-smoking areas.
Mr. Whittemore added, if the issue is to address underage smokers, there are far more direct proposals which this Legislature could advance and most likely would receive support. He stated S.B. 258 is not the mechanism or the bill to achieve the desired goal. He added the proper balance between public facilities and whether smoking is permitted or prohibited should be at the hands of the Legislature. He reasoned local entities did not exhibit concern nor utter a suggestion about restricting tobacco use until the Legislature began adopting policy regarding smoking in 1995. Mr. Whittemore asked if this was such a concern, why were no local ordinances initiated prior to 1995? He reasoned the balance of choices of adults was not a big issue then. Mr. Whittemore said he believed the existing law represented a good balance and is non-discriminatory and, finally, does not create problems except for those who have a goal of outlawing smoking altogether.
Chairman James questioned schools’ smoking policy, asking if a school could say, “No smoking,” but currently allow smoking? Mr. Whittemore responded, stating under the existing law a school, which is regarded as a public building, may be designated as nonsmoking. However, school districts have chosen to provide a designated smoking area for their teachers. It is there, at the local level, smoking or nonsmoking becomes a condition of employment, explaining the right of each district to so designate policy. Mr. Whittemore described individual districts in (local) control through policy.
Mr. Whittemore next suggested the definition of a public building could be redefined to include the grounds, such as those surrounding a school. Senator Titus then asked for verification there is no smoking in any building at the University of Nevada, Las Vegas (UNLV), covered under the “public building” designation of the existing law. The operator of the facility controls this, Mr. Whittemore responded.
Then, Senator Titus asked what casinos do to protect employees from secondhand smoke. Mr. Whittemore replied casinos try to designate nonsmoking areas within casinos although, he admitted, many have not been successful from an operational standpoint. Therefore, he said, world-class systems designed to remove smoke from these facilities have been created. The older casinos are more difficult to upgrade, he conceded. Those who do not wish to work in a smoking area, he said, are offered alternative types of employment where they can avoid smoking. For dealers, he offered, the situation is difficult because if there is no nonsmoking table to offer, competitive employment becomes a difficult task. Mr. Whittemore added many casino customers engage in smoking behaviors many adults do not choose. The balance is created, he explained, in casino restaurants equipped to serve over 50 people with nonsmoking sections currently mandated by state law.
Chairman James asked if disease related to secondhand smoke is a workman’s compensation claim issue. Mr. Whittemore said it is not. He added there is an attempt to suggest medical monitoring on claims for secondhand smoke health problems has been rejected at this time by the Nevada Supreme Court.
Senator Washington asked about the marketing aspect of the smoking issue. He mentioned the smoke-free Ponderosa Hotel and Casino in Reno and, regarding arguments stating patronage does not drop off and the frequency of visits does not diminish, he asked Mr. Whittemore what happened to make the Ponderosa go bankrupt. Mr. Whittemore said the resort industry has tried more than once to offer smoke-free casinos and they failed. The fact is, he said, the public is not willing to accept those individuals who gamble but do not patronize smoke-free facilities. He said suggestions separating nonsmoking floors from smoking floors are in the design for new casinos. To date, he added, the market did not fare well in attempts to accommodate nonsmokers.
Senator Care questioned restaurants with capacities of 50 patrons or more. He said neither he nor his wife smoke, but usually they are told at restaurants the smoking area is open for seating immediately, but for nonsmoking there will be a 30-minute wait. He asked Mr. Whittemore to explain the term “flexibility” in regard to smoking in restaurants. Mr. Whittemore responded the language of the bill is erroneous and not the intent of the legislation. He suggested the operators of restaurants who have only nonsmoking patrons or only few smoking requests need to be better educated to convert areas from smoking to nonsmoking to accommodate their customers, which is the intent of the word, “flexible.” He concluded restaurant operators could be better educated on the meanings of the words “flexible” and “convert.”
Chairman James used Boulder City as an example, asking if Boulder City wanted to become smoke-free, why the Legislature should interfere with the same desire by any city. Mr. Whittemore responded it is beyond whether a city wants to or should; it goes to what is wrong with the existing policy set forth by the state. If, he went on, the area of contention is grocery stores and convenience stores, and he said, let us debate about those issues. If, on the other hand, the question is, should the Legislature no longer be involved in tobacco issues? Then, he said, Nevada is ready for a plethora of different laws as cities and counties choose. He said, “Far be it from me that it is inappropriate to suggest elected officials at the local level aren’t any more competent than you are . . . What we have here is the local officials are saying the state is not competent to make those (tobacco use) judgments with respect to balance.”
Mr. Whittemore claimed, in fact, the state is competent and the notion every two years is not timely enough to address tobacco issues is a “bogus” claim. If, he went on, this bill is about grocery stores, tell me why this policy adopted two years ago has to be changed today? On the other hand, he said, if the issue is about smoking in gaming facilities (which is the Assembly bill) the same argument will be used here in the Senate. He stated he believes, “Somebody is suggesting this is the way to get local control and then pursue an agenda which will preclude smoking in all gaming institutions.” Mr. Whittemore said his concern was the hidden agenda. He continued, if S.B. 258 is about public buildings, children smoking at or near schools, or if we want to criminalize underage children for smoking then let us get clear on the issue. He emphasized not one of these issues is part of the legislation before us.
Chairman James said Boulder City does not have gaming either. Mr. Whittemore acknowledged he was aware of the absence of gaming in Boulder City and commented it is the only city in Nevada without gaming. Chairman James said it was a choice to be smoke-free and gaming-free adding, “It might be good to have some bastions of the state . . .” Senator Titus added, “They may want to be free from state dollars, which go to their schools . . .”
Senator Porter spoke as the representative from Boulder City and the former mayor, commenting currently Boulder City Mayor Roberto Ferraro is listening to this debate. He added Boulder City is celebrating its seventieth anniversary this week and appreciates the freedoms found in their city.
Senator Porter said he would like “to see a way to put the nose (camel’s) under the tent.” Maybe, he suggested, we should allow local governments some leeway in their decisions and offer them more flexibility in working with our young people and maybe the decisions would be more about breaking laws. But with the 7000 new kids daily taking up smoking, there is a possibility penalizing them would curb the problem. He said legislation has failed because education about smoking, as opposed to jail, yielded more smokers. Local governments could pass regulations to penalize underage smokers. Mr. Whittemore said he could not oppose criminalizing behavior of underage smokers. Senator Porter said the problem is with young people; they are the audience we want to reach.
Chairman James welcomed the Yerington High School twelfth grade U.S. government class who had just entered the committee room.
Samuel P. McMullen, Lobbyist, Las Vegas Chamber of Commerce, and Retail Association of Nevada, said he was present on behalf of the specific direction of the vice president of government affairs for the Las Vegas Chamber of Commerce, Kara Kelley, to oppose S.B. 258 based on aspects of consistency in tourism, and consistency in business regulation. Basically, he said, a comprehensive statement of policy exists which the state has been modifying session by session. The proponents of S.B. 258 have suggested the Legislature is not dealing with these issues; he said this position is incorrect. Continuing, Mr. McMullen stated, the issue claims to involve tobacco and centers around tobacco, but really the front line is basically businesses as the issue is applied today. He said one can be against tobacco, but it is an attack on business operation, and business judgment and flexibility. As a chamber of commerce, he said there are a number of important functions; one of them, he explained, is promoting reasonable policies, which are effective, comprehensive, and minimize the burden on business.
Mr. McMullen said, all regulation costs money and affects the economic success and survival of businesses. He said dollar loss may be related to profit but it is also related to employment. He noted in Nevada revenues from smoking and the sales of tobacco products are significant components of various businesses affected by tobacco sales. More importantly, he added, inconsistent regulation can make the cost of doing business increase; policies should be nondiscriminatory and nonarbitrary. He realized smoking and tobacco use are emotional questions but business is attempting to remain consistent in face of them. Mr. McMullen stressed the goal and objective of the proponents of S.B. 258 is not concerned with any impact on business.
Chairman James cited statistics and indicated business is not responding to the public sentiment reflected by these numbers. He used restaurants as an example of a place the general public prefers to have non-smoking. The concern should be about avoiding an initiative petition, as was the case in California.
Mr. McMullen said an initiative represents a fearful alternative to debate, because initiatives do not always have the kind of thorough thoughts behind them that debates do. Addressing Chairman James concern, he said business must respond to customers’ wishes and complaints. The market-driven concerns actually do affect business operations. Regarding restaurants specifically, Mr. McMullen explained most secondhand smoke problems can be cured with good ventilation; sometimes, restaurants have simply “guessed incorrectly” about the proper size of the market for smoking and nonsmoking areas. He felt “flexible” was an important concept to consider in regulating smoking.
Senator Washington asked for statistical information about the sale of tobacco products in convenience stores, stating the Office of the Attorney General Office had funds appropriated for stings at these businesses for sales of tobacco to underage buyers. Senator Washington asked how effective the sting approach was and what impact it had on retailers. Mr. McMullen said the program was proposed by businesses in 1995. One of the key features of the operation was there were consistent statewide standards and enforcement. As businesses, he explained, we needed to know what the rules would be. The result, he said, was one biased study indicating a 100 percent noncompliance; however, others reported a 60-80 percent noncompliance number as tested by the attorney general’s office. Mr. McMullen said putting business on the front end by making employees understand, with incentives, not to sell tobacco products to minors was a business objective, today the noncompliance number is down to 21 percent. Mr. McMullen said this issue is out of balance because businesses get penalties and fines for selling to minors and there is no fine or penalty at all for minors who buy cigarettes. Mr. McMullen used his daughter as an example, stating she and her friends would buy cigarettes only because there was not even a reprimand for doing so; he added this side of the equation needs balance. He then made reference to the Lovelock school situation stating no one can legally say anything to minor children who are smoking; there is no regulation. He concluded the goal should be to effectively deter children from smoking. But, his position remained from a business point of view, consistency in regulation is vitally important.
Chairman James stated he had a problem with making criminals out of kids when they are bombarded daily with “Madison Avenue” telling them they should smoke. He agreed, however, there had to be a balance.
Senator Titus reminded those present tobacco settlement money funded the Millennium Scholarships and suggested the recipients of those scholarships should be required to sign a pledge not to smoke. Chairman James said he thought Senator Titus had a good idea and those present applauded. Senator Washington commented regarding the scholarship funded by tobacco settlement money and Senator Titus’ proposed pledge to not smoke, stating his observation is those who usually smoke are impoverished, less educated and do not have opportunity for advancement. Senator Washington thought the Millennium Scholarship itself is enough incentive to not smoke.
Mary F. Lau, Lobbyist, Retail Association of Nevada, came forward next and announced she had passed out prepared testimony (Exhibit H) explaining the training currently underway, the involvement of the Attorney General with business, and other efforts made by retailers to discourage youth from smoking. Her position is one of agreement with the current public policy. The responsibility of the retailer, she said, is the youth buy-rate and not tobacco access or youth smoking. Though she said as a smoker herself, retailers do not encourage nor view it as appropriate for children to smoke; it is not the focus of the retail association. Ms. Lau stated the retailers of Nevada are serious about discouraging smoking for minors and she used restaurants as an example of retail action towards reducing smokers. Carson City’s Café del Rio uses flexibility rules in accommodating customers’ wishes by prohibiting smoking during the lunch hour but allowing smoking at the bar in the evening.
Peter D. Krueger, Lobbyist, Nevada Petroleum Marketers and Convenience Store Association, came forward next accompanied by Theresa Kawchack, the regional supervisor for Winner’s Corner Convenience Stores. He referred to Ms. Kawchack as a front-line person who knows the importance of flexibility and asked her to explain training with flexibility.
Theresa Kawchack, Regional Supervisor, Winner’s Corner Convenience Stores, and Berry-Hinckley Industries, has stores throughout northern Nevada from Battle Mountain to Hawthorne and throughout the state. As a regional supervisor, her job was to train people not to sell tobacco to minors. She said if every locality had different laws it would be hard for us to train consistently. She reported none of the stores in her domain failed the “We Care” (no tobacco sales to minors) program in the last sting, therefore she believes existing programs are working.
Ms. Kawchack stated on a secondary level, if regulation was a variable between stores, then transfers of employees would become more difficult and it would be likely they would be less effective at keeping the sale of tobacco products to minors down. Chairman James interjected her last comment may not necessarily be true, because it is illegal statewide to sell cigarettes to minors and will remain the law.
Mr. Krueger addressed the matter of payment for enforcing the local laws. He said S.B. 258 makes no mention of who pays for enforcement of the proposed local control. He explained the stings since 1995 went through the attorney general’s office because priorities of local law enforcement to address violations of code considered much more serious than youth-buy of tobacco products were more important.
C. Joseph Guild III, Lobbyist, speaking for the United States Smokeless Tobacco Company, who sells products including smokeless tobaccos Copenhagen and Skoal, said if local government were given the power it seeks through S.B. 258 smokeless products would be included. He added it is possible to find successful public policies citing the legislative decisions of 1995 regarding tobacco use, as evidenced by the statistics on buy-rates provided by Dr. Mary Guinan. He said Mr. McMullen’s figures indicate a buy-rate of approximately 20 percent. Using those figures, Mr. Guild felt current public policy, a decision made by this Legislature, is excellent and is effective in reducing the use of tobacco significantly. He said:
That would not have occurred . . . without a consistent state policy related to training, and the operations of law enforcement to impose on retail establishments the State’s policy that minors would not be allowed to purchase tobacco products . . . Nationally the number of users of tobacco products is down significantly for the last 10 years. In “The Goals 2000” effort, sponsored by the National Secretary of Health and Human Services, Donna Shalala reported smokeless tobacco product usage for teens is less than 2 percent nationally.
He concluded in Nevada the buy-rate on all tobacco products including cigarettes and smokeless tobacco was down significantly, and the biggest reason was consistent state policies.
Chairman James said the problem remains Nevada still has the highest percent of adult smokers and the highest death rate from smoking-related diseases. He asked, with these statistics, has the health policy regarding smoking been a failure in Nevada? Mr. Guild did not feel qualified to answer his query but added, local control of smoking regulations would not do anything to reduce Nevada’s high rate of smoking-related diseases. He said he cannot see a correlation and would be willing to debate the issue. He stated his opinion was Nevada currently has a very restrictive anti-public smoking policy.
Jim Avance, Lobbyist, E.T.T. Incorporated, the slot route industry, spoke and reminded the committee he had come forward when both the Senate and Assembly enacted the legislation currently in effect, severely restricting the areas where slot machines are located in regard to smoking. This legislation required new stores to build alcoves and upgrade air conditioning. He said he received calls from many affected who now feel betrayed by the introduction of S.B. 258 because they complied with the law at a cost of thousands of dollars. Mr. Avance informed the committee that currently children are restricted from entrance to slot areas in newer stores, and the slot areas are now located in alcoves away from the front door. He offered many people confuse secondhand smoke with the smell of smoke on people’s clothing, which is not secondhand smoke. His point was the stores are complying with state mandates regarding smoking and gaming, citing several local grocery chains, including Raley’s Supermarkets and Drug Centers, who built a glass enclosure around their slot area, and K-mart Super Centers, who made an alcove for their slot machines, as did the new Smith’s Food and Drug Center store. Costco Wholesale and Wal‑Mart do not have slot machines and therefore do not have smoking areas. His concern was these stores have long-term contracts statewide with slot machine routers. Every new store built has 7- to 10-year contracts for slot machines. Local control, he said, would severely hurt our contracts.
Mr. Avance said his other concern about S.B. 258 is giving the authority to local jurisdictions. He said, as he reads the bill, the library board, for example, could impose smoking restrictions countywide, or the school board, or planning commissions, pointing out the many jurisdictions there are in any community. He mentioned the proposed amendment to S.B. 258 included the businesses he services (grocery stores). Mr. Avance said he feels the control should stay with the state and he believed the smoking policy in Nevada was very effective.
Chairman James apologized to those who were not able to testify on either side. He adjourned the meeting at 10:06 a.m.
RESPECTFULLY SUBMITTED:
Ann Bednarski,
Committee Secretary
APPROVED BY:
Senator Mark A. James, Chairman
DATE: