MINUTES OF MEETING
ASSEMBLY COMMITTEE ON JUDICIARY
Sixty-seventh Session
June 3, 1993
The Assembly Committee on Judiciary was called to order by Chairman Robert M. Sader at 8:08 a.m., June 3, 1993, in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Meeting Agenda, Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Mr. Robert M. Sader, Chairman
Mr. Gene T. Porter, Vice Chairman
Mr. Bernie Anderson
Mr. John C. Bonaventura
Mr. John C. Carpenter
Mr. Tom Collins, Jr.
Mr. James A. Gibbons
Mr. William D. Gregory
Mr. Ken L. Haller
Mr. William A. Petrak
Mr. John B. Regan
Mr. Scott Scherer
Mr. Michael A. Schneider
Ms. Stephanie Smith
Mr. Louis A. Toomin
COMMITTEE MEMBERS ABSENT:
None
GUEST LEGISLATORS PRESENT:
Senator Joseph M. Neal, Jr., Senate District No. 4
STAFF MEMBERS PRESENT:
Ms. Denice Miller, Research Analyst
OTHERS PRESENT:
Judge David Gamble, Ninth Judicial District Court
Mr. John Sarb, Administrator, Nevada Department of Human Services, Division of Child and Family Services
Mr. Robert Cavakis, Director, Nevada Department of Human Services, Division of Child and Family Services, Youth Corrections
Mr. Leonard Pugh, Assistant Director, Juvenile Services, Washoe County Juvenile Probation Department
Mr. Scott Cook, Douglas County Juvenile Probation
Captain Randy Oaks, Legislative Liaison, Las Vegas Metropolitan Police Department
Lieutenant James Nadeau, Washoe County Sheriffs Office
Mr. Ernest Nielsen, Washoe Legal Services
Mr. Raymond Rodriguez, Nevada Legal Services
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens
Ms. Janine Hansen, President, Nevada Eagle Forum
Mr. Merit K. Yochum, Independent American Party
Mr. Jack Orr, Public Affairs Director, Douglas Financial
Mr. Danny Curtis, Danny's Bail Bonds
Mr. Neil Dexter, Proprietor, Ty-De Development
Ms. Pam Bowsher, Bigelow Management
Ms. Viki Morley, Regional Manager, Bigelow Management
Mr. Buddy Rogers, Aloha Bail Bonds
Mr. John W. Riggs, Sr., Self
After roll call, Chairman Sader opened the hearing on committee business. He requested consideration of Bill Draft Request No. 17-2095 which pertained to legislative immunity and would clarify witnesses who testified during legislative proceedings were privileged to present defamatory matter relevant to the proceedings.
ASSEMBLYMAN GREGORY REQUESTED COMMITTEE INTRODUCTION OF BDR 17-2095.
ASSEMBLYMAN ANDERSON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
Assembly Concurrent Resolution No. 62 Urges local law
enforcement agencies to develop guidelines to ensure that citizens are afforded their right to bear arms.
Chairman Sader informed the committee members ACR 62 had accumulated from the efforts expended on A.B. 306.
Mr. Collins testified ACR 62 would clarify the term "carrying a concealed weapon". He suggested deleting the phrase, "or in a briefcase" which was contained on line 13, page 1.
Mr. Collins addressed the issues which arose in the interpretation of the term "concealed weapons" and the differences in terminology throughout the state. He maintained citizens who traveled with personal weapons concealed in briefcases, glove boxes, etc. had been treated unfairly.
Chairman Sader pointed out the intent of ACR 62 was to encourage law enforcement jurisdictions to execute the concealed weapons permit law in a uniform manner.
Mr. Haller asked what effect ACR 62 would have on individuals carrying concealed weapons in banks and casinos. As Mr. Collins understood, local ordinances addressed the carrying of concealed weapons in banks and casinos and federal law dictated provisions which addressed carrying weapons in banks.
Mr. Carpenter inquired as to the reason why the word "briefcase" was slated for deletion. In reply, Mr. Collins stated it was difficult for individuals to readily access firearms in closed briefcases although the satchel-type briefcases made access to firearms more accessible.
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens, testified in favor of ACR 62. The organization had conducted a survey of the various law enforcement agencies throughout the state and found differing interpretations as to whether handguns were permitted to be carried in vehicles concealed in glove compartments, under the seats, etc. and whether or not the firearms could be loaded.
Ms. Lusk maintained ACR 62 would support the right of Nevada citizens to carry arms for their security and defense as granted under the Nevada Constitution. She requested the term "briefcase" be retained in the provisions of the bill. She alleged the interpretation of the law, as provided by the Attorney General, maintained weapons were considered concealed if they were carried upon the persons or in containers carried by the persons. She noted briefcases were questionable as the law did not address individuals who did not carry them or if the briefcases were in the trunks or back seats of vehicles. She agreed it was favorable to delete the term "briefcases" from the provision only to avoid confusion.
Mr. Merit K. Yochum represented the Independent American Party. He expressed the organization's support of the resolution and the right of citizens to keep and bear arms.
Ms. Janine Hansen, president, Nevada Eagle Forum, testified in support of passage of ACR 62. She maintained citizens had the right to keep and bear arms under the Nevada Constitution as well as the U.S. Constitution.
Lieutenant James Nadeau, Washoe County Sheriffs Office, supported ACR 62 in the amended form with the deletion of the term "briefcase".
Captain Randy Oaks, represented Sheriff John Moran, Las Vegas Metropolitan Police Department, and concurred with the provisions of ACR 62. He acknowledged the misinformation in the interpretation of the law. He noted it was incumbent upon the law enforcement agencies to adhere to the decision of the Attorney General's opinion of the law.
Captain Oaks related his concern with ACR 62, lines 11, 12 and 13, page 1. He alleged the Las Vegas Metropolitan Police Department did not agree the language accurately reflected the Attorney General's opinion. The term "concealed upon a person" also referred to containers carried by persons. He maintained the language did not infer this.
Mr. Haller assumed firearms carried in purses were considered concealed. Mr. Oaks confirmed this and added this was correct only if the firearms were carried at the time. Firearms carried in purses laying alongside individuals would not constitute concealed weapons.
Mr. Collins distributed copies of the Attorney General's opinion, Exhibit C. The language of the opinion read, "It is our opinion that the language of NRS 202.350 would be narrowly construed to include only those concealed weapons which were actually on the person or in a container carried by the person". He suggested the definition of the term "upon a person" could be inserted into the definition.
Captain Oaks requested the phrase, "or in a container carried by the person", be added to the provisions.
Mr. Anderson asked why purses lying alongside individuals qualified under these circumstances whereas briefcases did not. Captain Oaks clarified firearms carried in containers not on the individuals were not considered concealed weapons.
Mr. John W. Riggs, Sr., testified in support of the resolution with political reservations.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on ACR 62 and opened the hearing on AB 486.
ASSEMBLY BILL NO. 486 Eliminates exception to require- ment that court exonerate obligor and release bail upon sentencing of defendant.
Senator Joseph M. Neal, Jr., Senate District No. 4, advised the committee A.B. 486 was under reconsideration. He noted the Clark County District Attorney's Office was not in opposition to the measure as had been expressed previously.
Jack Orr, Public Affairs Director, Douglas Financial, informed he was the public affairs director for the National Association of Surety Bond Underwriters. He supported the passage of A.B. 486 which would request courts exonerate bonds at the time individuals were sentenced or released from not guilty pleas.
Mr. Orr reminded the committee members the purpose for bail was to ensure individuals appeared in court. Bail was never envisioned to be performance bonds although some judges used bail as performance bonds by transferring the appearances upon sentencing. These judges held the bonds, failing to exonerate them until the individuals met the conditions of the sentences. This was an unfair burden on the bail bondsmen whose sole purpose was to ensure the appearance of the defendants in court. He maintained bondsmen could not anticipate sentences nor could they anticipate individuals being placed on probation for two or three years wherein the bonds would be forfeited if these individuals did not live up to the conditions of the sentences. He asked for relief from these issues.
Mr. Danny Curtis, Danny's Bail Bonds, testified in favor of the passage of A.B. 486. He alleged clients and defendants who appeared before the courts were often placed on payment plans for substantial periods of time to meet their obligations. He alleged this practice was more in line with completion bonds as the bondsmen had to work with these clients until the obligations were paid off before bail bondsmen could have the bonds exonerated. This caused hardship on bondsmen as conceivably repayment could continue for as much as four or five years as additional fees would be attached to the bench warrants. He asked the committee consider releasing bondsmen from the bonds once judges applied the sentences and the bonds were exonerated.
Mr. Orr informed the committee of the different types of bonds, such as civil bonds, which were classified as performance bonds. He maintained forty to fifty percent of the probationers were breaking their conditions. A number of states had considered issuing performance bonds. He contended individuals had the wherewithal to negotiate these matters whereas bail bondsmen did not.
Mr. Buddy Rogers, proprietor, Aloha Bail Bonds, disseminated copies of information pertinent to the bill, Exhibit D. He responded to Mr. Anderson's concern and stated one problem bail bondsmen had to contend with was when individuals failed to make their court appearances. Under the 1878 Nevada statute, bail bondsmen or bounty hunters were granted the authority to detain offenders and bring them back to court.
Mr. Anderson referenced the "Law of Bailbonds" and read the section which stated, "since jails were poorly constructed and difficult to guard, in addition conditions were terrible and prisoners died before trial, the system was involved where they were released to custody of the township bringing the township responsible and to the family later on". As he understood, bail bondsmen stood in the place of the economic inability of defendants to produce the needed finances. Mr. Rogers concurred and added judges had other options available to them and also had the authority to issue warrants for the individuals' arrest if they failed to comply with court orders.
Because judges had these different options available to them, Mr. Rogers maintained this bill was not required. He addressed the various correspondences received from judges, Exhibit D, who did not concur with the passage of A.B. 486 and did not utilize the provisions of this law. He contended there were judges who abused the privileges of the contract of the bail bonds. He pointed out he had turned down two bonds for one judge who had sent out a letter stating the court would hold the bail bonds until the sentences were completed and the fines were paid.
To clarify the answer to Mr. Anderson's concern, Mr. Rogers related an example of bail which had been issued in the amount of $500. His bail company had charged 10 percent of the bail amount which was $50 for services rendered. After bonding fees were paid he made $37 profit on this particular case. He questioned why he would risk accepting a situation where a judge would send a forfeiture letter noting the offender did not pay his fine to the courts. He contended it was ludicrous for him to pay the $500 fine in order to get the bail bond back.
In response to Ms. Smith's concern, Mr. Rogers stated his clients were screened for the ability to meet payback criteria and available collateral. He noted the few courts which abused the system by forfeiting bonds because offenders had not made the minimal payment.
Mr. Petrak assumed the bond applications informed the offenders the only obligation the bondsmen had was to assure the individuals appeared before the courts. Mr. Rogers reminded the committee of the copies of contracts presented before the committee members during the April 22, 1993 hearing. The contracts specifically read, "This bond is to guarantee the appearance" of the person in the courtroom. The contracts did not guarantee alimony, child support, fines or wage garnishments.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 486 and opened the hearing on A.B. 689.
ASSEMBLY BILL NO. 689 Makes various changes regarding placement of delinquent children and children in need of supervision.
Mr. John Sarb, Administrator, Department of Human Resources, Division of Child and Family Services, testified in support of A.B. 689. He explained the intent of the bill was to improve the level of information made available to courts at dispositional hearings and to expedite the transfer of delinquent youths to state custody as well as improve the services to delinquent youth.
Mr. Sarb continued, when the division had been authorized to operate as the result of the 1991 Legislative Session, one of the express purposes had been to improve the client center service delivery which matched services to clients rather than force state clients into the available services. He maintained the division had been successful in many areas particularly in the area of services to abused and neglected children.
Mr. Sarb stated improvements to delinquent youths had been a successful endeavor as well. For example, during FY 1991, 28 delinquent youths had been placed in residential treatment programs; in FY 1992 the number had increased to 40 youths. It was recognized delinquent youths were in need of mental health services and not simply correctional care. There were youths who were seriously disturbed as the result of child abuse and there would be seriously abused children who also committed crimes. It did not matter what courtroom children went through or what law they came into custody on. The required services entailed treatment for serious emotional disturbances which the division was trying to provide.
According to Mr. Sarb, there were procedural barriers in getting this accomplished. At present, judges could not direct mental health assessments to be conducted on children who were emotionally disturbed and appeared before judges on delinquency matters. Judges might order assessments but the costs were charged to the county. Some counties could not afford the costs of these expenditures and often services were not readily available to the courts. At the time of disposition, judges were not privy as to where these children would obtain treatment.
Mr. Sarb maintained the division did not have authority in the dispositional processes for children coming into custody although the department was responsible for the children for at least six months and sometimes several years. These problems were not evidenced when abused or neglected children came into custody because the statute specified the transfer process allowed information regarding the children be admitted during the court proceedings. He sought to have the delinquent process mirror the commitment process for abused and neglected children.
Mr. Sarb addressed A.B. 689, Section 2, and noted the significant change. Courts would provide 72 hours notice before the intent to transfer children to division custody. NRS 432.020 referenced abuse and neglect and mandated notice had to be provided before the division relinquished an abused or neglected child.
Mr. Sarb informed the committee A.B. 689, Section 3, was existing language. He suggested subsection 2 be deleted which referenced children under the age of 12. He maintained this was inconsistent with Section 4. He directed attention to Section 3, line 23, which related to children in need of correctional care and Section 4, line 4, which read, "if a court finds the child who was eight years of age or older is delinquent or in need of correctional care". He focused attention on those children between the ages of eight and twelve who were in need of correctional care but could not be placed in correctional care. He requested the age limit "12 years old" be changed to "8 years old", or delete subsection (a), line 23 as it was covered adequately elsewhere.
Mr. Sarb explained the division did not want to place children under the age of 12 in the Nevada Youth Training Center (NYTC) or in the Caliente detention facility due to the educational programming. Approximately five children per year were committed on delinquent offenses. To arrange schooling at NYTC or Caliente for fewer than five individuals presented problems. The division was concerned with the legality of placing these children as there was no statutory definition of correctional care.
Mr. Sarb addressed A.B. 689, Section 4, subsection 2, and stated payments would be made to the administrator rather than the superintendents of the institutions; this would make provisions consistent without recommendations. The current practice entailed payments submitted to the division. The proposed legislation would require payments to the superintendents. He requested the provisions be retained as to be consistent with current practice.
Mr. Bob Cavakis, Director, Department of Human Resources, Division of Child and Family Services, Youth Corrections, informed A.B. 689, Section 5, was not existing language. The bill drafters had included, in page 2, line 31, a prohibition against placing those children under 12 years of age in facilities which provided correctional care. He requested this provision be eliminated. He suggested placing a period after "...Caliente Youth Center." and eliminate the term, "...or any other facility that provides correctional care".
Mr. Cavakis stated A.B. 689, Section 5, subsection 2, would allow children committed for correctional care to be moved from one facility to another as under existing law. This would provide the courts the knowledge and ability to allow corrections to choose the appropriate placement for these children as well as notify the courts and the parents before they move them as per existing law under NRS 62.211.
Mr. Sarb pointed out A.B. 689, Sections 6 and 7, were technical changes as was Section 8. Section 9, subsection 2, related to courts providing the administrator 10 days notice prior to termination. The suggested language would add the phrase, "except upon the request of the Division of Child and Family Services.." He noted many of the terminations were made upon request. As the language read, 10 days notice would be required to terminate upon request. This was existing language under NRS 210.189, NRS 210.630 and NRS 62.251. In the attempt to combine the three statutes the ability to request routine terminations was lost.
Mr. Cavakis noted A.B. 689, Section 10, subsection 1, changed the word "committed" to "placed". The recommended changes would give the division the ability to make placements rather than allow the courts to make direct commitments to individual facilities. In keeping with the legislative audit recommendations, subsection 2 would allow payments directly to the division for court-ordered support. The division currently collected payments rather than the superintendent, as proposed.
Mr. Cavakis informed A.B. 689, Section 11, changed the courts' commitment to make the appropriate placements and notify the courts where the placements would be from the facilities to the division. In more than 90 percent of the cases, committed youths would continue to the facilities which would give them the opportunity to explore alternatives for those youngsters who required specialized treatment.
Mr. Cavakis stated Section 12 changed the word "committed" to "placed" and would change the responsibility to identify alternate placements from the courts to the administrator. This also changed the responsibility for notifying the courts from the schools to the administrator. The suggested provisions placed responsibility to identify appropriate placements on the division and would mandate notifying the courts and the parents before moving the children.
Mr. Sarb informed A.B. 689, Sections 13 and 16 would be deleted in a subsequent bill. These sections codified the existence of the division. The bill drafter had advised the sections be retained at the present time as these sections addressed institutions accessing services across division lines. In Section 13, subsection 2 and Section 16, the current language addressed problems with delinquent youths as paraphrased, "...upon medical consultation, finds such person to be feeble minded or mentally ill,..." Section 13, subsection 3, read, "...if after observation the administrator upon medical consultation finds such person to be a sexual psychopath or a defective or psychopathic delinquent..." Mr. Sarb alleged this language was slated for deletion when the subsequent bill came forward.
Mr. Cavakis stated A.B. 689, Section 14, changed the courts' commitment directly to the institution; the division would make the placements. This eliminated the authority of the superintendents to request the courts to commit females to out-of-state facilities. He clarified this was language inserted prior to the services for female offenders in Nevada. The provisions eliminated the requirement that courts order support. According to Mr. Cavakis, the bill drafters had adopted sections from the Nevada Training Center statute and the Caliente statute. The same was evidenced with the elimination of the requirements for physicals.
Mr. Cavakis informed the committee A.B. 689, Section 15, would be changed with the same adjustments in Section 12 which referenced Caliente. He pointed out Section 12 referred to Elko and Section 15 referenced Caliente. Section 17 changed the responsibility of placement to the administrator from the court. Section 18 comprised technical changes.
Mr. Sarb addressed circumstances where courts held delinquent children in need of treatment assessments or diagnoses which were not available. By providing notice, services were made available to conduct assessments, diagnoses and recommendations. He advised when courts committed children to custody for treatment they did not know where the children would be placed, who would treat those children, or what the treatments were. With the proposed language, during dispositional hearings, it would be clarified what would be done with the children.
Mr. Sarb explained the department had the children committed to the division through court orders. To substantiate his contention, he stated he had seen court orders which recommended psychiatric care with no back up to suggest the children needed psychiatric care. He had seen children committed to NYTC who had been in need of psychiatric care and did not receive this assistance. In these situations, the division requested the courts to reconsider the decisions. Meanwhile, the juveniles sat in detention until the judges reconsidered. He requested treatment information be presented in the courts prior to the dispositional proceedings.
In responding to Mr. Anderson's concern, Mr. Sarb explained juveniles under the ages of eight years of age would not be considered delinquent. Mr. Anderson asked, upon the deletion of Section 3 from the provisions, where juveniles less than 18 years of age who had not been adjudicated would be held. Mr. Sarb explained children who had not been adjudicated delinquent would not be held unless pending.
Mr. Cavakis referenced subsections 1 and 2 which pertained to different groups within the exclusive original jurisdiction of the courts. Subsection 1 related to the status offenders and Subsection 2 addressed delinquents. According to Mr. Cavakis, subsection 1 was existing language under NRS 62.211, subsection 3. Mr. Anderson asked, upon the elimination of subsection 2, what would happen to juveniles less than 18 years of age who had not been adjudicated as delinquent. Mr. Cavakis explained Chapter 62 addressed the concern and remained a local responsibility until the time of adjudication. Courts could order those children held in local detention facilities and could access private programs while awaiting adjudication. He added, until minors were adjudicated in Nevada, state programs would not become involved.
Judge Dave Gamble, Ninth Judicial District Court, informed he had not been fully apprised of the proposed provisions in A.B. 689. He contended there were some salutary items in the bill, specifically Section 2, subsection 2, page 1, which addressed courts notifying the division in advance of commitment through the juvenile division or the juvenile probation officers. By commitment, he referenced those juveniles sent to Caliente or NYTC to receive recommendations regarding specialized services afforded to those children. He maintained this was a good idea as it provided other options.
Judge Gamble contended the problem with the remainder of A.B. 689 was the provisions took away the discretion of the judges and gave it to the Division of Child and Family Services. He did not feel it was appropriate for the division to make these determinations. He referenced A.B. 689, page l, line 8 which stated the division would be given the opportunity to investigate and recommend suitable placements to the courts, which he concurred with. A.B. 689, Section 4, page 2, line 4, read, "if the court finds that a child who is eight years or older is delinquent and in need of correctional care the court shall commit the child to the custody of the Division of Child and Family Services of the Department of Human Resources for suitable placement". He contended it was the courts' prerogative to place juveniles with the recommendation of the agency. The right to place and adjudicate juveniles in the judiciary had been vested to the courts.
Judge Gamble referenced testimony presented by Mr. Sarb in which he stated, "they would come back to the court with a recommendation and the judge can say no, I do not like that plan". What Judge Gamble ascertained this statement to mean was the judges would tell the division, "bring me another plan" which would end with the agency making the determinations. He contended this was a usurpation of the judges' authority and invaded the judiciary.
Mr. Leonard Pugh, Assistant Director, Juvenile Services, Washoe County Juvenile Probation Department, represented the Nevada Association of Chief Juvenile Probation Officers as well as Washoe County. He alleged the chiefs of the divisions had been advised of the bill draft in June 1992 and correspondence had been delivered to Mr. Cavakis relating to the support of the proposed legislation.
Mr. Pugh maintained the thought at the time was notification to the division would be limited to cases where there were recommendations for specialized services which would take place at the institutions. They would not call or order any specialized treatment and saw no need to notify the division in those types of cases. It was felt revision of the language was needed which would specify cases where the courts had ordered or there were recommendations by the probation department for specialized services.
In addition, related to the same provisions contained in A.B. 689, Section 2, line 7, the chiefs of the divisions had concerns regarding the length of time such investigations or assessments would take place once the division was notified of the intent to commit juveniles. In situations where probation officers recommended specialized services, it could be incumbent upon the probation officers to notify the division immediately upon recommendation. It might not be the probation officers who supplied the reports to the judges. The judges might not make the decisions until the time of the dispositional hearings. He recommended language be included to allow the judges to determine or specify time limits in which the assessments would need to be completed.
Mr. Pugh voiced his concern with A.B. 689, Section 5, page 2, line 27, which read, "...may within the limits of legislative appropriation...". He alleged the chiefs of the organization assumed the phrase related to the division's ability to transfer juveniles out of state as well as to other institutions within the state.
Mr. Sader understood Mr. Pugh did not have any interest as to whether the division or the courts made decisions relative to placement of juveniles. Mr. Pugh added Washoe County had been notified on such short notice they did not have time to confer with the judges as to whether they agreed with shifting responsibilities from the committing courts to the administrator.
Responding to Mr. Petrak's question, Mr. Scott Cook, Chief, Douglas County Juvenile Probation Office, stated he had spoken with Bob Teuton, Assistant Director, Clark County Juvenile Court, regarding the concerns with Section 2; it appeared he was not concerned with the provisions. The department chiefs had concerns with regard to the appropriations and how it might be interpreted in the future. He did not believe the Clark County Judges were aware of A.B. 689.
Ms. Lucille Lusk, Nevada Coalition of Concerned Citizens, raised questions with regard to A.B. 689, Section 3, page 1. She addressed the provisions which would take away the discretion of the judges. The coalition was concerned with stopping the antisocial behavior at the beginning. She contended the restriction on the ability for the judges to act was inappropriate.
Ms. Lusk referenced A.B. 689, Section 9, page 6, line 22, which read, "before the court may modify or terminate an order they must do certain things". Lines 27 and 28 read, "must give due consideration to the effect of the modification or termination of the order upon the discipline and program of the division". The coalition believed the language was inappropriate as the judges should give due consideration to the effects and modifications in reference to the discipline of the children and situations of the families. The Division of Child and Family Services should serve and assist this discipline. She alleged the coalition had concern with regard to the discipline and program of the division being the criteria upon which the judges made those decisions.
Mr. Cavakis responded to Ms. Lusk's statement and maintained the two sections referred to were already mandated by statute. The provision for Section 3 appeared under NRS 62.211, subsection 3, which was a reasonable efforts provision for status offenders. The other provision alluded to was contained under Section 9, page 6, and was existing law in the statute for Elko and Caliente.
In response to Judge Gamble's stand, Mr. Sarb replied A.B. 689 had been under discussion by the chief probation officers since June of 1992 at which time he had their written support. He had spoken with Judges McGee and Jordan who were in support of the legislation. In regard to committing to the division, he noted it was current law as the judges had the option to commit to the division, Elko or Caliente. The only change would be the judges would commit to the Division of Child and Family Services. In cases where judges committed juveniles to Elko and the facility could not handle the child, Elko had the legal right to return the juveniles to the courts.
Mr. Sarb contended it was the department's responsibility to find placement for the juveniles consistent with the judges' orders. On the issue of usurping judicial authority, Mr. Sarb maintained the intent of A.B. 689 was the opposite. He referenced the difficult cases generally referred to as dual diagnosis cases where the children committed delinquent acts and there was evidence of emotional disturbance or mental illness. This posed problems with the courts and the division.
According to Mr. Sarb, during the disposition hearings, judges would have the benefit of the mental health assessments. The department would explain to the courts what would be done with the juveniles. Under the current system, judges might order the department to provide mental health treatment for the juveniles. The judges, at the time of the order, did not know what the department was going to do with the juveniles. Under the law it was the division's right to decide. The intent of the proposed legislation was for the division to go into court and tell the judges what they were going to do with the juveniles. At that point, if the judges did not concur with the recommendations, they could elect to go with the public defender's plan. He believed the language was clear in this regard.
Mr. Sader contended substantive information was lacking on the bill. He wanted specific information from the Clark County judges as to any concerns they might have toward A.B. 689. Judge Gamble clarified he was in support of many of the concepts contained in the bill although the language was unclear and did not allude to these concepts as it appeared to make commitment to the division mandatory and took away the judges' discretion. He would contact the other judges and inquire as to their consensus and return to the committee with his findings.
Mr. Sader noted if the provisions could not be worked out there was a clear conception of the areas of dispute and direction as to what needed to be altered or deleted.
There being no further testimony to come before the committee, Chairman Sader closed the hearing on A.B. 689 and opened the hearing on A.B. 687.
ASSEMBLY BILL NO. 687 Lessens length of notice to quit for certain short-term tenancies.
Chairman Sader informed the committee members A.B. 687 emanated from hearings conducted on A.B. 325 which had been killed although issues relative to short-term tenancies were the subject of testimony.
Mr. Neil Dexter, proprietor, Ty-De Development, encouraged the committee to approve the proposed amendment. He presented previous correspondence which supported his testimony, Exhibit E. He based his presentation on the demand for the weekly rental market in Las Vegas which had been generated to service individuals relocating to Nevada. Weekly rentals focused on renters who could not afford high rental deposits, move-in costs or monthly rental payments. He noted many renters required payment terms in line with paydays. He addressed temporary employment. Weekly apartments provided total services such as furniture, electricity, TVs, etc. Hotels and motels were reluctant to accommodate weekly renters as it was more profitable to rent rooms to tourists.
Mr. Dexter stated he had encountered numerous circumstances where renters skipped out of paying rent. The five day notice, coupled with the court system, allowed weekly renters to pay the first week rent although they continued to stay two or three weeks rent free while effectively working the system. Weekly landlords did not receive guaranteed subsidies from the state. He contended a two day notice to pay or quit would be fairer for the weekly landlords. A.B. 687 would ease the costly legal burden placed on these properties. If the current system continued, landlords would have to increase the rents.
Ms. Pam Bowsher, Bigelow Management, informed the committee the management firm owned and operated 3,500 units in Las Vegas. Overall, there were approximately 12,000 weekly rentals in Las Vegas. She maintained the weekly rental business had to comply with the same eviction processes as monthly rentals which required security deposits. Weekly rentals generated turnovers of 35 to 55 percent which meant half the rentals needed to be rerented. Turnover entailed time and money toward cleaning, painting, maintenance, labor, advertising and leasing staff for each vacated apartment. Weekly rentals were subject to processes of eviction for non-payment of rent.
According to Ms. Bowsher, under the five-day notice provision, eviction for non-payment of rent took 15 to 20 days from the time court hearings had been set and orders for eviction were issued. In cases where tenants alleged defense, the processes were delayed and landlords were forced to file litigation. She referenced four tenants who had resided rent free in weekly rental units for approximately five months due to the process. She alleged this caused havoc, delays and loss of rent. A.B. 687 would speed the eviction process, reduce loss of rental income and time for evictions.
Ms. Viki Morley, Regional Manager, Bigelow Management, recapped the weekly residential market and services. She alleged, in order to continue the quality accommodations at affordable rates, consideration of the two day notices would need to be addressed. She maintained it took approximately two and one half weeks to legally evict non-paying weekly residents. With two-day notice legislation it would shorten the eviction time by three days or half a week. The eviction process took approximately 15 days. She noted it was mandatory weekly rental managers send certificates of mailing when notifying tenants of eviction. Tenants were not only responsible for timely payment of rent but they were afforded physical notification as well as notice by mail.
Ms. Bowsher maintained her company had experienced a greater number of evictions than in previous years. Mr. Anderson asked if she had weighed the court costs as a factor in determining the eviction costs. Mr. Dexter addressed the question and noted projections were calculated on paid occupancy although in the last two years the non-pay residents had increased substantially.
Mr. Petrak related information he had obtained from weekly rental managers in Las Vegas who were being shorted by renters knowledgeable of the law. These tenants received three weeks of free rent due to present statute. He contended reducing the notification from five days to two days would garner three-day reprieves during which time landlords could not receive rent. The problem was serious and should be dealt with.
Ms. Smith posed the question, if the dates for notification were reduced, would the landlords pass the savings on to the renters. Ms. Bowsher replied her company had experienced substantive rental losses over the previous two years due to the abuse of the system. Rental rates would continue to be based on the market rate.
Mr. Dexter noted his company had not increased rent on paying existing tenants although increased rents were passed on to the incoming tenants.
Mr. Haller recalled Chapter 118A addressed the length of time residents resided in units and defined monthly rentals as opposed to weekly rentals. Mr. Dexter understood the provisions alluded to addressed the innkeeper laws which stated, if renters remained over 30 days, they were considered permanent residents and fell under the apartment complex category where motels constituted 30 days residency.
Mr. Ernest Nielsen, Washoe Legal Services, addressed the differences between Washoe County and Clark County. He testified in support of residents who resided in weekly motels.
Mr. Nielsen contended weekly renters paid more rent than monthly renters. In 1992, according to comprehensive housing affordability strategy assessments, there were 605 families living in weekly motels and 2,600 individuals residing in weekly motels as permanent housing. In his opinion, weekly motels would not fall under the innkeeper statute but under A.B. 687 as they were considered weekly rentals. The circumstances would change if the rentals were rented on a daily basis. Chapter 40, which was the procedural section on evictions, applied equally to motels rented on a weekly basis as it did to apartments rented on a weekly basis.
Mr. Sader noted this raised the issue of rentals of one week or less. He inquired about hotel rooms rented on a daily basis. Mr. Nielsen stated this scenario would not be covered by the proposed changes as Chapter 118A became effective on the 30th day on individuals who resided in hotels and paid on a daily basis. Mr. Sader surmised the provisions of Chapter 118A relating to tenancies were defined as tenancies of 30 days or more. Mr. Nielsen responded negatively and noted they were simply an exception in Chapter 118A which only referenced motels. It read, until renters had resided in hotels or motels for thirty days, Chapter 118A did not apply. Chapter 40 did apply to motels which rented on a weekly basis.
Mr. Nielsen alleged two days notification was too short. In Washoe County agencies provided emergency assistance to tenants who had viable reasons for not paying rent; this was to prevent homelessness.
Chairman Sader advised the committee additional information was required before action would be taken. He requested Mr. Gregory and Mr. Porter to resolve the issue of service.
Mr. Raymond Rodriguez, Nevada Legal Services, stated the firm recognized the concern of the landlords although the language required additional work particularly with NRS 40.280 service of notice. He alleged tenants often received notices through the mail three days later whereas hand-delivered notifications often blew away. The legal issue was when were tenants actually notified. He suggested utilizing the three-day notification period.
Mr. Nielsen suggested a 30 day time period because it was closer to the provisions in Chapter 118A which addressed residency in motels on a daily basis, whereas if they resided in these same residencies for more than thirty days, they would become subject to the provisions in Chapter 118A and could not be evicted to court processes. He suggested the language did not have to track Chapter 118A and the time limit did not have to be 30 days.
Mr. Schneider asked what percentage of the Clark County population did weekly rentals represent. Mr. Neilsen replied approximately 16 to 17 percent of the total population were weekly rentals. He understood the statute of limitations was an issue here. If tenants did not pay rent within the five-day notice period, they were guilty of unlawful retainers and could be evicted although they might have tendered rent subsequent to the five day period. Placing a timeframe on the two day notice would be acceptable as long as the condition was made that, once tenants had established reliability, they would fall under the same rules as monthly rental tenants.
Mr. Gregory recognized the weekly renters did not have to come up with deposits as did leases and monthly renters. He contended weekly landlords did not receive rental deposits to balance non-paying tenants which supported the two-day notice period. Mr. Nielsen added weekly motel tenants in Reno paid more per month in rent than apartment dwellers which resulted in higher prices paid by tenants for the benefit of not paying deposits.
Mr. Gregory addressed the distinction between motel renters versus weekly rentals. Ms. Morely stated the distinction was related to zoning and alleged motel classifications did not have higher weekly rates although there was a slightly higher rate on motel classifications. There were 12,000 weekly rentals in Clark County and approximately 2,900 weekly rentals in Washoe County.
There being no further testimony to come before the committee, Acting Chairman Gibbons closed the hearing on A.B. 687. He informed the committee action would not be taken on bills testified on at this time.
Acting Chairman Gibbons adjourned the meeting at 10:36 a.m.
RESPECTFULLY SUBMITTED
Jessie A. Caple
Committee Secretary
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Assembly Committee on Judiciary
June 3, 1993
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