MINUTES OF THE ASSEMBLY COMMITTEE ON COMMERCE Sixty-eighth Session April 12, 1995 The Committee on Commerce was called to order at 3:30 p.m., on Wednesday, April 12, 1995, Chairman Spitler presiding in Room 332 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. Larry L. Spitler, Chairman Ms. Sandra Tiffany, Chairman Mrs. Maureen E. Brower, Vice Chairman Mr. Richard Perkins, Vice Chairman Mr. Dennis L. Allard Ms. Barbara E. Buckley Mr. Thomas A. Fettic Ms. Chris Giunchigliani Mr. Lynn Hettrick Mr. David E. Humke Mr. Michael A. (Mike) Schneider GUEST LEGISLATORS PRESENT: None STAFF MEMBERS PRESENT: Paul Mouritson, Research Analyst Barbara Moss, Secretary OTHERS PRESENT: Bob Gagnier, State of Nevada Employee's Association (SNEA) Louis Ling, Psychology Board Lucille Lusk, Nevada Concerned Citizen Ben Graham, NDAA Paula Berkley, Board of Psychology R. G. Whittemore, Nevada State Psychology Association Margi Grein, State Contractors Board David Antonuccio, State Board of Psychological Examiners Kay Barber, State Contractors Board Bill Rizzo, SCB Deborah L. Sheltre, State Contractors Board David J. Reese, State Contractors Board Ronda Moore, State Board of Psychological Examiners Max Christiansen, Sheet Metal Contractors Richard Lisle, Mechanical Contractors Association of Nevada Irene Porter, Southern Nevada Home Builders Association Following roll call, Chairman Spitler opened the hearing on A.B. 329. ASSEMBLY BILL 329 - Requires board of psychological examiners to issue licenses without examination to certain persons employed by State of Nevada as psychologists. Chairman Spitler recalled A.B. 329 had been heard on March 27, 1995. As a courtesy, two individuals who had taken time off work had been allowed to testify on that date. It was understood the full hearing would be held when the sponsor of the bill, Assemblywoman Giunchigliani, was able to do her presentation. Assemblywoman Giunchigliani distributed to the Committee a copy of her testimony (Exhibit C) with supporting data (Exhibit D). She gave her testimony, explained the supporting data and entertained questions from the Committee. Assemblyman Brower queried if the bill did not pass, what would the individuals be required to do to become licensed psychologists. Ms. Giunchigliani responded there was a test and, under the statute, the Board could determine equivalency. However, they had never determined equivalency and there was only one person who served on the certification review. In most cases they would have to obtain a full psychology degree because their degrees were in different aspects of education. There were two different routes they could take but it would have a huge impact upon them. They were all doctorates but not in psychology. They were doing the psychological job as psychologists, which they had been hired to do, for ten years. They were caught in a "catch 22" situation. Mr. Spitler asked what actions the individuals had taken. She responded two had applied for the license. It had taken the Board seven years to respond to one and then they were denied. She wasn't certain if the other one had been processed. She felt some may have seen this legislation as effecting one individual, in actuality it effected four individuals who were lost within a glitch and continued to be lost. During budget cuts the individuals were told if they had been laid off they would never have been allowed to return to their positions. Mr. Spitler inquired if there was an appeal process internally within state government. Ms. Giunchigliani responded none she had found. Assemblyman Humke asked if the individuals were all state employees. She replied they were. He asked why there was a problem with Medicaid and other insurance reimbursements. Her understanding was when they were counseling clients for Mental Health/Mental Retardation (MH/MR), because they were not licensed psychologists they could not sign the forms. Another licensed psychologist had to sign for it, therefore, they could not collect those dollars. Many times it was a state client receiving state services on state time, but they might have wished to return and purchase additional time. If private insurance would cover it they could not collect because they were not licensed psychologists. Mr. Humke asked if this facilitated their "moonlighting". She answered it absolutely did not -- and it was not the intent. Her understanding was the state agency lost money because they could not sign for third party pay. Mr. Humke stated if they were in state service there was always another licensed psychologist around who could sign for the Medicaid and other third party reimbursement and the person, in the situation, could work under the supervision of that person. He asked if that was correct. Ms. Giunchigliani answered it was her understanding. He asked what was the problem? She said she relayed what had been told to her by the individuals, that third party pay on which they could not sign was an issue. Mr. Humke asserted it was not a problem for anyone else. For example, a masters degree level person could work under the supervision of a Ph.D. licensed individual and the agency would get reimbursement. She indicated she would check it out and get back to him on that part of it. Chairman Spitler called attention to the fact he had announced from the Chair at the March 27, 1995 hearing that individuals would not be discussed as the bill was addressed. Mr. Bob Gagnier, Executive Director of the State of Nevada Employee's Association (SNEA), spoke in favor of the bill on behalf of several of their members who were effected. One of the principal concerns was in the event of lay offs it could seriously impact their ability to be moved to another position within state government. Under the lay off procedure, which was very explicit, their rights could be adversely affected and they could be denied opportunity because they were not licensed. From a personnel perspective that was one of the most important issues. He addressed the issue raised by Mr. Humke that it was not always practicable for those people to be supervised by another individual. A principal psychologist was a fairly high position and what might be asked was for them, in effect, to be supervised by someone at a lower level. They should be able to sign the papers because there was not always somebody else available. The insurance documents must be signed by a licensed person. Assemblyman Tiffany asked if the licensing board or the psychologists had an alternative licensing procedure. Mr. Gagnier answered he did not know and suggested she ask them. She indicated she did not like preferential legislation and the bill truly was that. It probably was the reason the "notch baby" act had not been passed. She also expressed concern if they quit the state and sought employment elsewhere, they would be recognized as licensed when they would not be in any other state. Mr. Gagnier responded those individuals would only be offered something that others had been offered when their licensing laws were passed. Mr. Spitler asked Mr. Gagnier if he could think of examples other than what Ms. Giunchigliani had shared where grandfathering had occurred as licensing was done. Mr. Gagnier stated some of those laws were vigorously opposed by SNEA. He suggested some of the grandfather clauses had not been totally satisfactory, social workers came to mind. They had a grandfather clause with which he was not happy and felt it had not worked well. Mr. Spitler asked, from a personnel point of view, what remedies did employees have for appeal when a change occurred in job titling. Mr. Gagnier said it would be described as reclassification. Under state law, when a position or a group of positions were reclassified, the employees had an appeal right. The appeal process eventually went to the Personnel Commission which had ultimate authority over all job classifications within state government. However, those appeals could not supersede state law. If a statute said a person must be licensed or certified, as the case may be, the Personnel Commission would have no choice and it would automatically go into the job description. Mr. Spitler asked was it automatic in a case where licensure was an issue. Mr. Gagnier said it had to be placed in the job description in the minimal qualifications. Mr. Spitler queried if legislation was the only remedy available to those employees. Mr. Gagnier responded, in this particular situation, yes. There was no internal remedy within either the grievance or appeal procedure to the Personnel Commission. Assemblyman Fettic asked if the individuals could do the job of a principal psychologist, why didn't they just take the test, pass it, and put it behind them. Ms. Giunchigliani responded it was the test plus additional credits whether or not their doctorate was equivalent. Ms. Brower wondered if any of the employees in question had attempted to take the test or the more traditional remedies of getting licensure rather than through legislation. Mr. Gagnier responded at least one of them had tried. He did not know about the others. Dr. Antonuccio, a member of the Board of Psychological Examiners, indicated he had testified at the prior hearing on March 27, 1995. Rather than reiterate his testimony he briefly summarized some of the concerns of the Board. Basically their job was to protect the consumer with certain educational and examination standards. If legislation was enacted forcing them to license people who had not qualified they could not do their job. The Nevada requirements were a Ph.D. from an American Psychological Association (APA) program or equivalent psychology program, one year of pre-doctoral supervision by a licensed psychologist, one year of post-doctoral supervision by a licensed psychologist, and the written and standardized oral exams. His concern about A.B. 329 was it seemed to be special for certain people who had not qualified for a license and the rationale was since they could not qualify legislation would be passed to give them that license. From his perspective it would have been compared to licensing a physician without examination. He felt that would be a mistake. He believed the term grandfathering was misleading in this case because in 1985 when that legislation was passed, to grandfather someone meant to give them a license even though they did not meet all the requirements. Nobody was given a license at that time. They were exempted from the requirement to get a license to keep their jobs but were not given a license to be allowed to practice anywhere outside the division. Assemblyman Allard clarified Dr. Antonuccio opposed the bill because he did not feel the four individuals were qualified. Dr. Antonuccio stated he did not know who the individuals were so, in principle, it did not matter who they were. If they did not qualify according to the current standards they ought not to be given a license, from his perspective. Mr. Allard agreed he did not want them to practice if they were not qualified. However, they had been working in the position for ten years so they had some sort of qualifications. Mr. Allard wondered why they were not just given the test? Why were they put through all the other hoops? He asserted this was a special case. The individuals had been practicing for ten years which belied his concern of whether or not they were qualified to practice. Dr. Antonuccio stated, from his viewpoint, a person should also have had the proper training in addition to passing the test. They were two separate standards, having the qualifications based upon training, and also passing the test. They were both important requirements. Mr. Allard asked if the test examined whether or not they had been trained properly? Dr. Antonuccio answered yes, it examined one aspect of it but it did not substitute for training. Mr. Allard asked what about all the on the job training they had done for ten years? Dr. Antonuccio gave an example: the last time an application had come up from an individual who did not meet all the qualifications, the reasons were the person had not received a degree from an organized psychology program, the training was not provided by psychologists, the individual had never been supervised by a licensed psychologist, course work was not psychological in nature, and the post-doctoral supervision was not provided by a licensed psychologist. Mr. Allard asked if that was the person who had tried to qualify and become a licensed certified psychologist. Dr. Antonuccio answered yes. Mr. Allard clarified they did not have any formal training, but were they given a test? Dr. Antonuccio replied no, because the first step was qualifying based upon training. In other words, it would be like trying to qualify an engineer to become a doctor. The test would not be given to the engineer unless they had medical training first -- it did not make sense. Mr. Allard asked what about the training they received working with patients every day for ten years. Dr. Antonuccio stated experience counted for something but it was not a substitute for training. A license would not be given someone to practice medicine unless they had training; even if they had experience in emergency rooms year-after- year. It was worth something and, in fact, because of the legislation they were permitted to continue working at their jobs, they simply were not given a license. Mr. Allard stated since they had not had formal training Dr. Antonuccio did not feel they were qualified at the present time. Dr. Antonuccio responded, yes, from his perspective. Chairman Spitler felt Mr. Allard had a very good point. If someone who was licensed was signing off that the person was doing work that met the standards of a licensed psychologist -- were they just routinely signing off or were they, in fact, saying that session met the standard of a licensed psychologist. Mr. Antonuccio said that individual was obviously not practicing independently and was under supervision. That was an important distinction. He felt the rationale was since they did not qualify for a license they should be given one because they were in those positions. He asserted it would be a mistake. Ms. Tiffany wished to address the alternative. At the present time she had a bill in for alternative licensing for teachers. If a person had moved to Nevada from a different state, had a masters degree or Ph.D. in math or chemistry but did not have an education degree which was required in Nevada, they could not teach and would not be given a license. Therefore, if there was no alternative licensing in teaching, might there be alternative licensing allowable in this case. In her opinion, what was the difference between teaching and this case. If the person was doing the same job they had done before, why would they not be given a license. Dr. Antonuccio asked for further clarification of alternative licensing. She explained she was proposing if a person had taught before and had a good history and track record, the requirements could be waived, which in this case was two years of general education and student teaching. If they came in for one semester and took pedagogy, which was to teach them how to teach, they would be given five years to pick up the remainder of the required courses. Dr. Antonuccio said, as far as he knew, there was nothing like that in psychology. Ms. Tiffany suggested it might be something to consider if A.B. 329 did not pass. Robert G. Whittemore, from the Nevada State Psychological Association, requested to speak to that issue. He stated he had been a Board member for 13 years and analogous to the situation posed by Ms. Tiffany was the situation Dr. Antonuccio had pointed out; which was that formal training was ordinarily conducted under the auspices of an APA approved, graduate degree granting institution. However, there were those individuals who obtained a Ph.D. through what was called non-traditional institutions. It had been the policy of the Board when the degree gained by the individual from that non-traditional granting institution was equivalent to the APA degree, they were allowed to take the exams. He believed he testified at the last hearing it was interesting the highest grade ever recorded during his tenure on the Board was received by an individual who did not have a degree from an APA credited school. Therefore, part of the answer was as Dr. Antonuccio pointed out, but part was there were alternatives in the licensure procedure. The Board considered each situation, case-by- case. It was not arbitrary, it was not capricious, it was done according to very regular standards and in those cases where the Board decided the degree, whatever it might be, was equivalent, they were then allowed to take the examination. Ms. Tiffany asked if anyone had come to the Board to request that. Dr. Antonuccio stated he did not know all the individuals but, from Ms. Giunchigliani's testimony, apparently two of them had but had not qualified. The method for establishing equivalency with an APA program was based upon distribution of courses. If a person did not come from an APA approved program they had the option of trying to establish equivalency based upon a whole series of courses. Apparently those individuals had not been able to do that. Ms. Tiffany said it was a quasi-alternative. Mr. Fettic asked for clarification from Ms. Giunchigliani that the individuals had been doing the work of psychologists. She responded, yes. He asked what the regulations and requirements were prior to 1985? Dr. Whittemore answered there had been no substantive change. The waiver of examination prior to the passage in 1985 was provided for in Nevada Revised Section (NRS) 641.130, following that it was NRS 641.190, so the waivers of examination were given only by Nevada Revised Statutes to those individuals who were certified or grandfathered, who were allowed licensure certification not licensure because they had a diplomate from the national board; or those individuals who had training and education and had passed the examination in states where all was deemed equivalent to Nevada law. Mr. Fettic asserted this was specialized legislation and his concern was that the people were capable of doing the job. From a layman's point of view it did not matter to him whether or not they were licensed. Common sense told him they had been doing the work since before 1985 and it was now 1995. If they were not doing the job properly, why had they not been fired or sued? Dr. Whittemore answered because the Board had no power over them. The Board had no acquaintance with them other than the rare occasions when they appeared before it. The Board of Psychological Examiners was not charged with carrying out the mandates of the Personnel Division. The Personnel Division could continue employing those people as long as they wished. They could still call them a Psych 4, Psych 5, senior, clinical or supervising psychologist. Several years ago, and he remembered distinctly because he had testified on behalf of it, the agency itself upgraded their requirements for employment in those various things to include a Ph. D. and they gave them until 1988 to obtain licensure. Ms. Giunchigliani stated the agency could not just decide to establish different standards. S.B. 19 had two sections, one section grandfathered those people in prior to 1985, the other group had to become licensed by 1987. She drew attention to the fact Dr. Whittemore had used the term "deemed equivalency" several times, however, it had not been defined. She asked him how many people sat on the credentials review committee? Dr. Antonuccio answered two. She asked who they were. Dr. Antonuccio replied Liz Richett and Louis Mortillaro. She asked if they ever had the credentials review committee sit as an individual, just one person. Dr. Antonuccio responded he did not know. She submitted, yes, they had. She reminded Dr. Whittemore in his statement he had said other pedagogies were accepted in the old days insofar as non-traditional colleges. What type of degrees were they? Dr. Whittemore answered, in some cases a person could qualify and be allowed to take the examination if they had a doctorate in educational or counseling psychology. Those two specifically came to mind. It was incumbent, both in terms of the APA code of ethics and the responsibility of the Board of Psychological Examiners, to make sure those individuals did not present themselves in any area they could not support by training and education. He was not a clinical psychologist and had never held himself out to be one. Were he to do so the Board could remove his license and he would be subject to censure by them. Ms. Giunchigliani asked what his degree was in. He responded his degree was a Doctor in Education (DED). She pointed out he was a DED but was licensed as a psychologist by the Board and allowed to take the test. He answered, yes, he was licensed as a psychologist but he had not taken the test. He stated there were 19 of them, regardless of degrees or circumstances under which the degree was obtained, that were grandfathered in 1964 and 1965. Ms. Giunchigliani asserted the four individuals were in the very same spot. They were doctorates, their degrees were in education or Education Psychology, the same as his, and they were grandfathered in by legislation but had not been issued a license. Yet they had been told they were principal psychologists and the Attorney General had said they could be promoted within that position. It was an interesting quagmire! She submitted the alternative licensing issue Ms. Tiffany had raised was a reciprocity issue. She totally supported reciprocity. Alternative licensing was a totally different factor, but in the terms she had used it was defined as reciprocity, which was proper. Because the Board recognized other APA colleges, they accepted reciprocity in the state of Nevada for licensing purposes. Dr. Whittemore indicated he may have mislead her. His degree was from Arizona State University and his doctoral dissertation was accepted by the APA as psychological in nature, which was the reason he was granted a certificate. Ms. Giunchigliani stated she would have to look at the other 18 people to see if their doctoral degrees were in a psychological area. Dr. Whittemore assured her there were only two individuals who had DED's at that time. She asserted precedence had been set. She stated nobody was asking for watered down standards with the legislation. Dr. Antonuccio disagreed; Ms. Giunchgliani agreed they would disagree. She stated they had not deemed equivalency. She asserted the Board had requested through Mr. Ling the course work be reviewed as equivalent. An outside professor in psychology had reviewed the course work and seven years later the Board denied the application. The course work was deemed equivalent but they chose not to accept it. Dr. Antonuccio asserted that was not accurate. He stated there was a misunderstanding it took seven years. He declared he had only been on the Board since 1990 and was involved in the decision in 1993 to reject that particular application. He believed it was the third time it had been rejected. He also wished to take issue with the term grandfathering. In 1985 nobody was given a license -- from his understanding that was what grandfathering meant. She declared grandfathering did not necessarily mean issuing a license. In some instances it had been determined as such, other instances it had been left silent, and people had issued it. Government, believe it or not, was inconsistent! Dr. Antonuccio thought she had said what was equivalent was not specific, but he felt it was specific in the statute. For an individual who did not come from an APA program the specific courses were spelled out very specifically. She asserted in some terminologies, if the word "psychology" was not in the course work it would not be accepted which was as bad as the school licensing issue Ms. Tiffany had raised. He stated it had to be primarily a psychology program, they wanted to license people trained in psychology, not in special education or anything else. She emphasized they did not want to water down the profession, however, the Board had become protectionist. When the legislation was drafted it had been stated whoever was there at that point in time was not only hired as a psychologist, but they would continue in that position, be grandfathered and promoted two additional higher levels within the area of psychology. She asked, did that not send a mixed message to those individuals? She submitted it did! That was part of the quandary. The bill was attempting to rectify that -- not water down the process or let anyone else into the loop, just those individuals who had been in that position since the 1970's. To give them credit, so to speak, for having been doing the job. Dr. Antonuccio stated by giving them a license without exam was basically saying they could practice psychology anywhere in the state, not just within that division, and it would like giving surgeons a license without giving them a test. He felt it was a mistake and could be dangerous. The Board was given responsibility to evaluate the qualifications of individuals who practiced psychology. He felt she was saying they did not want to evaluate those particular people. Ms. Giunchigliani expressed concern about the term "dangerous". If it was dangerous their Personnel Director should have had them terminated immediately. She admonished him not to use that term! He asserted he had no impact upon their Personnel Director. She insisted he was making an allegation that colored the issue. He maintained his job was to protect the public. Mr. Spitler interrupted and pointed out they did not want to get into individual people issues. He suggested they return to what the issue was in terms of the bill. He realized there were emotional things on both sides but was not sure they could resolve that issue. Assemblyman Allard asked if suit had been brought by any patient, family of a patient, or the state, against any of the individuals due to their actions during their tenure. Dr. Antonuccio answered he did not know of any suits and, in addition, he did not know the identity of any of the individuals. Mr. Allard clarified he was following up on Mr. Fettic's line of questioning -- if they were not qualified why had nothing been done? Mr. Spitler, again, pointed out the question was guiding the Committee to the individuals wherein they were not in a position to look at their personnel records and could not measure the integrity, quality or volume of their work. It was not something for that body to do. Although Ms. Giunchigliani had brought the bill forward on behalf of a certain class of people caught in an unfortunate situation with a Board that did not want to work with them, she wanted to take it from the issue perspective. Therefore, if the question was generic it would be alright to proceed with it. Mr. Allard assured him it was generic in that the bill addressed a certain segment. He wished to know if the segment addressed by the bill had any lawsuits filed against them. Ms. Giunchigliani stated there had been no complaints, nor suits filed, against the four individuals. The Board would have been notified if that had occurred and would have taken action. Mr. Spitler admonished some individuals in the audience to refrain from speaking and nodding their heads during testimony. He assured them they would be allowed their chance to give testimony. Dr. Antonuccio apologized for getting heated. He did not feel any of the individuals were dangerous. His job as a Board member was to protect the public. There were qualifications and exams to help accomplish that job. It was impossible to do his job without carrying out the statutes. Mr. Allard asked if the bill were to be amended requiring the individuals to pass the test, would it cover his concerns? Dr. Antonuccio said it would cover some of his concerns. Again, if someone did not have a psychology degree, they could study for a test and perhaps pass it, but still not be qualified to practice psychology. Mr. Allard asked if that information was easily accessible? Dr. Antonuccio assured him there were many preparation courses for the exams, both oral and written. Mr. Allard asked if the doctors that went through the other requirements were privy to that as well. Dr. Antonuccio answered, yes. Assemblyman Humke spoke to the danger to the consuming public issue. The individuals were in state service, there was testimony to that effect. Let us say they worked at the Nevada Health Institute. There were various types of people working there, i.e. mental health technicians, mental health counselors, various counselors of many descriptions, and psychologists licensed by the Board. If a patient was harmed by the advice given by one of those individuals, who would be responsible? Dr. Antonuccio answered whoever was in charge. If a licensed psychologist signed off on it, they would be responsible. Mr. Humke asked would that be a licensed psychologist, a licensed psychiatrist, or the medical director? Dr. Antonuccio answered, yes. Mr. Humke hoped that helped. Mr. Louis Ling, Deputy Attorney General, who represented the Nevada State Board of Psychological Examiners up to one year ago, indicated he was the Deputy involved with the Board at the time one individual came seeking licensure. He hoped he could disentangle the problem with A.B. 329. It was raised by Mr. Allard's comments when he asked if it would solve the Board's problem if the person were required to take a test. The way the bill was written it would cause that person to be treated like any other applicant coming to the Board. All the bill was attempting to do was waive the requirement to take the exam. He noted line 11, sub-section 3, which said they still had to comply with NRS 641.160 and NRS 641.170. Those were the education requirements to which Dr. Antonnuccio was referring. In other words, all the bill said was they would have to qualify and obtain the educational requirements, they just were not required to take the exam. That would not license the one individual involved in the case being discussed. Apparently the other three had not applied with the Board yet. There was a simple solution -- they applied to the Board, if they had the educational qualifications they would become licensed and then be hired by the state and treated as psychologists. The grandfathering Dr. Antonuccio kept referring to had nothing to do with licensure, It had to do with the state personnel system and whether or not these people would be kicked out of their jobs. He felt they were putting the cart before the horse when saying the State Department of Personnel ought to be able to dictate to a licensing board whether certain people should be licensed. It was the other way around. The licensing board ought to be first certifying people as qualified under the qualifications the legislature gave them, and then if the state needed that person to be licensed they would come through the Board to get that licensure. The argument was exactly backwards. From that point of view, psychology was an unusual profession in Nevada. He, as a lawyer, could not become licensed unless he went to a law school. Doctors could not become doctors in Nevada unless they went to a medical school. Teachers could not become teachers unless they received a degree in education. Psychologists had unusual language that said even if you did not graduate from an APA school you may still get licensed if you can prove you met certain educational requirements. There was a long list of classes required and proof they went through a course primarily designed to educate psychologists. There was nothing unusual in that; it was expected of all other professionals in the state. Therefore, the solution was not this bill. The solution was simple -- if those individuals wished to be considered psychologists they applied to the Board. If they had the same requirements the Board asked of any other psychologist, they would get licensed. If they did not, they would not. It was that simple! The fact that the Board had to turn down some of those people was an unfortunate result of the directions this legislature had given that Board. The bill did not address grandfathering, but even if it did, what was being said was four human beings in the state could go out tomorrow and practice in the private sector never having satisfied the requirements every other psychologist practicing with them had to satisfy to get licensed. It was getting too jumbled! Chairman Spitler asked were there restrictive licenses stating a person could only be licensed in the current job with the state? The license would be one that could be taken anywhere. Dr. Antonuccio answered basically, yes, although they were ethically and legally bound to practice within their training. Technically it was a general license to practice psychology. Ms. Giunchigliani, addressing Mr. Ling, stated if the individuals had applied prior to 1985 they should have been subject to the requirements at that time. It was stated the requirements had always been the same. Yet the Board's minutes had stated requirements at that time were less stringent than they were at this time and they did not have the provisions under NRS 641.170 with regard to setting forth the requirements for course work that was deemed equivalent. They had to have one year post-doctoral experience rather than two years. Also they had to have a doctorate in psychology or training deemed equivalent. Part of what the bill was trying to accomplish was to get the Board to determine what may be equivalent. In one instance the Board agreed to have course work reviewed to determine equivalency, and Dr. Hayes from the University of Reno (UNR) determined it was equivalent. That was accepted initially by the Board in 1989 but they did not act upon it. There was a subsequent equivalency done by an analysis of a professor from the University of California Los Angeles (UCLA) and the Board did not accept that equivalency. At some point what was a person to do? If people in the area of psychology did equivalency analyses on accreditation and training, and the Board continually rejected them, how was a person ever to be allowed into the process? Mr. Ling indicated he had tried to get an answer to the one person. He realized they were attempting to avoid talking about that particular person, and he preferred to do so, however, in that case the message had gone out from the Board, loud and clear, to go back to school and get the education required. Any other person in a licensed profession would be told to do the same if they had not attained the right education degree. Ms. Giunchigliani expressed appreciation of that but asserted it was not the message directed by the legislation for the Board, nor was in statute for the Board to do. It permitted the Board to determine equivalency and to waive certain requirements or interrupt requirements differently in different cases. The board had not chosen to do that, but totally restricted and continually directed them to go back and get another degree. They did not care if they had a degree, they would not accept "X" courses. That was what put the circumstance before the Committee. If that was the intent of the Board it was not being reasonable, it was being restrictive. That was part of the frustration of the attempt of the bill. In regard to the four people, one had been employed since 1984 and had a degree in special education. One had been employed since 1978 as a principal psychologist with a doctorate of philosophy from Utah State University. The other one had been employed since 1985 as a principal psychologist, their masters degree was in psychology and their doctorate was in educational psychology. One had been employed since 1975 and was a doctor of philosophy with research emphasis in methodology and community mental health. She submitted the Board had not been reasonable. She did not want to water it down, but she thought an opportunity to determine reasonable equivalencies had been chosen not to be done. Chairman Spitler clarified Ms. Giunchigliani was indicating the discretionary powers given to the Board were not exercised. Mr. Ling said the Board had drafted pages of regulations he had to learn after the legislation was changed to allow people with other than APA degrees to seek licensure. The Board did implement pages of regulations and those were the very regulations being discussed. It was those regulations that dictated course work, type of supervision, quality of the supervision down to the hour. The Board had to reject people based on the fact they were 100 hours short of their supervision because of rigid requirements designed to implement the legislative intent that only qualified applicants came through. They had done their job. They had done exactly what the legislature had asked them to do. He pointed out if the argument being made was based purely on experience and those people had practiced "X" number of years without having any real problems, there was nothing in the statute that would allow substitution of experience, except in very limited situations. The substitution of experience for education simply did not exist in the law, the Psychology Board, nor any licensed profession at the present time. Secondly, the Board had a request to waive a license for a person in Arizona, who had been a good practitioner for 20 years and never had any problems. They were sued because they were trying to require him to take the exam as every other licensee had to do. They were successful in federal lawsuit against him, making him take the exam after he had said experience should substitute for it. The federal judge in Las Vegas said it did not, the law was very specific, the exam had to be taken. He subsequently took the exam and was now licensed. Mr. Ling's point was there was no ability to substitute experience for examination. If there was, and the door was opened for those four people, he submitted it had to be special legislation if it was only addressing them. There were a great many people the Board had to say no to based upon the same exact requirements of trying to substitute experience for an examination. Ms. Giunchigliani indicated her thanks to Mr. Ling and felt they would discuss it again at some point in time. In regard to the pages and pages of regulations, if they did not consider experience in some cases, there was no opportunity for anyone to ever make it into anything else. If the regulations were so stringent it was because they decided to do it for over-protection rather than recognizing there were people coming in, reciprocity-wise, from other states whose degrees in psychology should have been recognized. At some point this would have to rectified but this legislation would not have been brought if the Board had been reasonable. Chairman Spitler asked if there was any more testimony, for or against, A.B. 329. There being none the hearing was closed on A.B. 329. The hearing was opened on Assembly Bill 399. ASSEMBLY BILL 399 - Revises provisions relating to state contractors' board. Ms. Guinchigliani introduced A.B. 399 and gave testimony (Exhibit E), including an enlarged copy of the bill with suggested amendments (Exhibit F). Chairman Spitler, regarding Section 1, asked if the intent was not to allow any resolution of a complaint before someone entered a formal complaint process? Ms. Guinchigliani answered, no, there always had to be resolution to a complaint. He asked if someone were to complain, would they have an opportunity to resolve it before it got into the system? She replied, yes, that was the intent. Mr. Spitler expressed he would appreciate her looking at it more closely. He felt if there was an informal way to resolve a complaint first, that was by far the best way to do it. Ms. Guinchigliani agreed totally. Chairman Spitler asked her if she wanted this bill to go to a subcommittee. She indicated she wanted it to go to subcommittee, stating most of the amendments came from meeting individually and she needed to get everyone together to be able to sign off on it. Mr. Spitler indicated the subcommittee would meet in Carson City, not Las Vegas. Ms. Giunchigliani proceeded with her explanation of the bill (Exhibit E). Mr. Allard disclosed he was a contractor but wished to work on the bill because it did not effect him any more than any other contractor. Upon completion of her explanation of the bill, Ms. Giunchigliani indicated she had attached the following background information: the mission statement of the Contractors Board, a copy of their budget, what had been going on with unlicensed activity, a proposed education program, a copy of the budget request plus investigations and complaints, the fining process, as well as the criminal citation process (Exhibit G). Mr. David Reese, Attorney for the State Contractors Board, expressed concerns about the remaining sections of the bill. Section 1 would mandate the Board members become complainants which was the antithesis of being a judge. One could not be both. The time mandates were were violative of due process and simply would not work. The Contractors Board had a case load that took a certain amount of time on which to get a contested case. Section 1 also skipped the investigative procedure entirely and, as was discussed, the early resolution possibilities. These were serious problems and required there be a complaint, a hearing and a decision within so much time. No provision for investigation, validation of the complaint or possibility to clear it up. It was dangerous from a constitutional standpoint. Section 6 duplicated present law. It was redundant. They already had a number of investigators that investigated complaints regarding NRS 624.3017. Section 7 would amend NRS 624.212 which presently allowed the executive officer to issue a cease-and-desist order when other things possibly would not work. If a person was going to violate the statute, the citation power the legislature had given them last session was the quick solution. They could get a citation and immediately it would be before the court on a misdemeanor charge. Section 7 would, in effect, mandate injunctive relief at the district court level, which the district courts would simply not tolerate. They were already buried and there was no way they could take injunctive relief cases from the State Contractors Board for every violation of 624, and that was what section 7 would do. Chairman Spitler indicated new language had to be put in place which would be resolved in subcommittee. Mr. Reese stated the difference would be to put the Attorney General in the slot which would require the State Contractors Board, or their counsel, to institute injunctive relief proceedings. Injunctions were extraordinary relief. Mr. Spitler said Ms. Guinchigliani wanted that opened up for discussion purposes. Section 8 duplicated an existing statute because NRS 624.330 already provided criminal penalties and fines for any person violating any provision of the chapter. What they were doing was creating additional criminal misdemeanor provisions when there was one that covered everything in the statute. Section 9 took the discretion out of allowing persons to take the Contractors Board exam. It simply said if you were convicted, you did not take the test and you could not get the license. He suggested the Board consider some things in that regard. He was not arguing one way or the other on the issue but he encouraged the Committee to think about the fact that what they really wanted to accomplish was to get contractors licensed to where they could be regulated and ensure they were bonded, paying SIIS and doing the things they were required to do. He was not sure they wanted to create a situation where they were going to put somebody out on the street with no means of earning a livelihood, paying child support, or whatever it might be. He thought there was a great interest to get people to work legally. Section 10, again, the bill duplicated another in the hopper that gave ability to issue corrective orders. It was something that possibly might work. They had introduced legislation early during the session to do exactly that. It would be enforceable essentially by saying, "Correct it or by the workmanship violation we are going to suspend your license." It was a self-enforcing type situation. He thought the existing bill was satisfactory to accomplish that. Insofar as awarding damages, the Supreme Court had already said in Bevins vs the State Contractors Board, the Board could not award contract damages in a contested case and such claims or counter claims regarding a contract raised legal issues properly resolvable only in a court of law. He felt they were in a position where they could not authorize the Board to award civil damages, that was something only the courts could do. There was no way they would have time or ability to hear complicated contract cases and determine damages. Ms. Guinchigliani asked him if he was interpreting they pay restitution. Mr. Reese answered, yes. She indicated it was the bill drafter's language and in her understanding it was only a means to resolve a dispute, not civil damages. Mr. Reese stated restitution was simply a type of damages. Ms. Guinchigliani indicated that was not the intent. Mr. Reese said he would be glad to work with the subcommittee and asserted there were many problems with the bill. Mr. Spitler expressed appreciation for his help. Ms. Irene Porter, Southern Nevada Home Builders Association, indicated she had discussed the bill with Ms. Guinchigliani and those in the home building industry believed it could be resolved positively in subcommittee. They were willing to work on it. They knew the issue of unlicensed contractors in Nevada was hazardous to the citizens. It was not just an inconvenience and a problem, it was becoming more and more dangerous. People had their homes taken apart and the entire industry got a bad name because of it. They wanted to see the problems resolved. She indicated she had met with many on the Committee over the years and more needed to done in that area. They advised the Committee that, hopefully, tomorrow there would be a bill introduced in the Senate dealing entirely with the issue of how to resolve residential construction defects. It went into a resolution period and a process which entered into arbitration and mediation. It had been used in other states and was a way to address the issue from both sides of residential construction defects. They wanted to incorporate that by reference, depending upon how the bill went, and make it a part of the subcommittee discussions. She thanked the Committee for considering their comments indicating they would be more than pleased to participate. Margi Grein, State Contractors Board, referenced (Exhibit G) given to the Committee by Ms. Guinchigliani earlier, and zeroed in on one particular item within the budget for an unlicensed activity enforcement and education program. That program added 13 additional investigators over a course of two years. They had also written in satellite offices in Laughlin and Elko to support outlying areas. There was a proposal for an interactive voice response system to enable consumers to call up 25 hours a day to get information on contractors, their license amount limits, and/or to find out if someone was licensed. Their public education program, which began in 1992, had been successful and they wanted to continue it and add additional spots and more consumer oriented programs. The investigative positions would do much good insofar as cleaning things up. She had supplied statistics in the packets referencing numbers of complaints and the numbers of times the judge would have a person become licensed as a form of punishment when going to court. Year-to-date there had been 19 cases when the judge had made that as part of sentencing. By saying they could not become licensed may hurt the individuals they were trying to protect. It was "catch 22" whether or not to allow it. They would like it to be discretionery for the Board. She briefly went over items in the packet of information. She indicated last year 3,406 cases, out of 3,463, had been resolved without going to formal Board hearings; 57 went for formal disciplinary action. She maintained the Committee had probably heard from their constituents about problems with contractors, which was true. She explained it was a large industry and they were continuously attempting to improve it. She also had included some laudatory letters praising the State Contractors Board. Last of all, she had a section on a work program change submitted to the budget division in December, which added two criminal investigative positions. They had not responded. She wrote them another letter on March 23, 1995. They were trying to get additional investigators. The money was not part of the general fund but the funds were there. They just could not get them going on it. She wondered if adding another level of bureaucracy would make it better than it was at the present time. She indicated some of their investigators were present to answer any question the Committee had. Mr. Richard Lisle, representing the Mechanical Contractors Association of Nevada, and the plumbing and piping contractors in Las Vegas, Nevada, addressed the Committee. He indicated their contractors built to plans and specifications and were concerned about some of the provisions in A.B. 399 in that it shifted them away from what they considered the legislative intent of the Contractors Licensing Board. They saw it as basically four requirements: (1) the state test for experience and training; (2) financial responsibility for bonds, paying the SIIS premium and so forth; (3) good character, no criminals; and (4) building to the requirements of the uniform building/plumbing/electrical codes. They were concerned the bill began to set up a consumer protection agency and moved away from plans and specifications in the uniform building code. They felt the lack of an alternative dispute resolution. If 3,000 complaints had been resolved in one year without formal hearings -- he felt sure the subcommittee would address that. Another area of concern was alluding to restitution, not so much they were going to do restitution, but the word "workmanship". Suddenly that was not in the building code, the plans or specifications. If a piece of acoustic sound board on a wall was out of plumb -- how much out of plumb was it -- was it half-a- bubble -- was it a quarter-bubble -- it became a beauty-is-in-the- eye-of-the-beholder type of thing. Where would they find those standards they were being held to by some inspector who had a different interpretation of what good workmanship was as opposed to bad. They thought the issue should be addressed through the Attorney General's office as more of a consumer complaint organization. They did not see it dovetailing with the mission of the licensing board, which were the four items he previously mentioned. Ms. Guinchigliani explained the intent of A.B. 399 was not to make it a consumer protection agency. She believed part of the reason the contractors board was established was to ensure safe construction and properly licensed people. The intent was to give the consumer a place to focus and go. She thought the contractors board, in and of itself, already had begun working toward that goal through their investigations, direction of their staff and education programs. What the bill did was codify some of that intent. It also made clear what they were supposed to do. In 1991 some of the individuals with the contractors board appeared before Labor and Management and testified in opposition to a bill that determined its role and did not just slap the hands of unlicensed contractors. That had been the genesis of the bill. She did not want the perception of the public to be that the board overseeing them was not willing to be strong when needed, but flexible as well; allowing for arbitration in certain circumstances, but nailing them when they were wrong. Otherwise the properly licensed contractor in the state was penalized and, unfortunately, could not bid on a project because they had their SIIS premium built in. Therefore, the customer went to an unlicensed contractor, decided to deal with him, he was caught and given a license. She did not think the consumer wanted to see that happen, nor a licensed contractor either. That was a global look at what they were attempting to accomplish. Mr. Allard indicated he also had a concern with the word "workmanship". He felt it was vague and would like to work with Mr. Lisle on it. Mr. Lisle said he would be glad to work on the subcommittee but wished to make sure they would not restrict the present contractors. There was much work coming up in Las Vegas the next few years. The contractors he represented did primarily high rise hotel work and he would hate to see some workmanship standard popping out of the woodwork that could cause them grief in the future. Chairman Spitler asked if there was any more testimony on A.B. 399. There being none the hearing was closed on A.B. 399. The hearing was opened on A.B. 115. ASSEMBLY BILL 115 - Revises provisions relating to certain sales of good and services. Chairman Spitler explained A.B. 115 was a bill sponsored by Ms. Giunchigliani, and was heard first on March 6, 1995, at which time several people from the Direct Selling Association, Mary Kay Cosmetics, Amway, and other door-to-door sales organizations expressed concerns about it. Ms. Giunchigliani distributed amendments (Exhibit H) to the Committee and stated in the testimony recommendation had come forth to insert "medically documented" so it would not be an allegation on mentally ill or mentally disabled. The second amendment was dealing with door-to-door type selling, i.e. Girl Scout cookies, to put a restricted financial limit of $25. On page 2, the language was recommended by direct sellers. On page 3, number 10, dealt with non-profit organizations which had brought forth recommendations from them. They did not delete all references to door-to-door sale. Direct sales still opposed it because they wanted it eliminated and the National Association of Attorneys General (NAG) inserted. They inserted the NAG and, due to discussion with Mr. Allard and Ms. Buckley, decided to leave the language in because without it the purpose of the legislation was defeated. They attempted to accommodate them. It was given a six month time frame, until January, to give ample opportunity for changes and notice. If there was concern regarding extension of time, Ms. Giunchigliani indicated it was negotiable. Mr. Spitler stated he had received letters and the overall concern was in going door-to-door how was one to know whether or not a person was mentally retarded or what age they were. Ms. Giunchigliani indicated one did not have to ascertain that information when going door-to-door. There was a document, filled out through the consumer advocates office, which gave the consumer a period of time in which to cancel. Therefore, the burden of proof was removed from the person soliciting door-to-door and placed upon the consumer. Mr. Spitler asked if there were any legal problems with that. Ms. Giunchigliani responded none she had found. Kim Morgan had double checked it and said one reason she had not added the reference to 598 was because it was already in statute. Assemblyman Buckley, recollecting from the original hearing, stated her concerns were alleviated when the representative from Amway testified they would not be covered by this provision because they never solicited door-to-door. It was always through prior contact, therefore, as long as there was prior contact those particular individuals would not be effected. Mr. Spitler indicated he would vary from usual procedure and allow Mr. Eric Ellman, from the Direct Selling Association in Washington D.C., and Mr. Daniel Markels, from the Shakley Corporation in San Francisco, California, to testify because they had flown in from out-of-town to express concerns about A.B. 115. Mr. Eric Ellman stated the Direct Selling Association represented companies like Shakley, Amway, Mary Kay, Tupper Ware, and Avon. The language incorporated into the amendment was not at the suggestion of their industry and would do nothing to exempt the way direct sellers operated. Direct sellers operated occasionally door-to-door, some Avon ladies still operated that way. The amendment would exempt instances where the buyer initiated communication to the seller, which was exactly opposite of the way most direct selling situations operated. Usually the seller made a telephone call thus: "Mary, my name is Susan, I got your name from our mutual friend, Sally, who suggested I give you a call. She indicated you might be interested in learning about Mary Kay Cosmetics." Principally their method of operation was to have the seller contact the buyer. It was a cold call, often through a mutual referral, but almost always where the seller initially contacted the buyer. Ms. Giunchigliani stated what he had referenced was telephoning and indicated they were not dealing with telephoning. Mr. Ellman said the definition of a door-to-door sale was: A purchase or lease rental of $25 or more which was the result of a door-to-door or personal solicitation. It was a conceivable interpretation of the definition of a door-to-door sale that if the sale was consummated, or any part of the sale took place at the home which was a direct selling situation, it would then fall into the definition of a door-to-door sale as it did under the three day cooling off law with which they currently complied, and did so in all other 49 other states. Ms. Giunchigliani explained what the bill was attempting to do: A person knocked on the door and said the roof needed repair, the lawn needed mowing, may I take out your trash, or whatever it might be. They had made the contact, nothing was initiated via telephone call, via reference from a neighbor, none of that. Therefore, Mr. Ellman's group would not be effected by it. Mr. Ellman responded, unfortunately the way the language was drafted, they were effected by it. Ms. Guinchigliani asked if he was referring to the current definition. Mr. Markels joined in and suggested they look on the first page, last line, which said ". . . whether at the specific invitation of the buyer or not . . " He went on to add that Shakley, like many direct selling companies, including Amway, already offered 100 percent money back guarantees. Therefore, providing terms of three days or 14 days was a practice of companies like Amway and Shakley. One of the things he was concerned about was the three day cooling off period being consistent in all 50 states, which meant their sales receipts could be consistent. Therefore, whether they had sales leaders or distributors in Nevada, California, or Arizona, they all used the same forms. There were no states that required a different sales receipt form. If Nevada passed this bill and set precedent, it would cause a rolling effect with other states which would make it difficult for them. If they had a distributor in Lake Tahoe, California, selling product in Nevada, a different sales receipt would have to be given to the customer. Ms. Guinchigliani submitted they could just cross off the three days, write in 20, and initial it. Mr. Markels asserted most of their people sold to families, friends, neighbors, and often times sent to families out-of-state. If every state had a different requirement it would be cumbersome upon those people, especially considering their small business nature. Ms. Guinchigliani felt care needed to be taken more on the side of the consumer. She was not advocating printing of a special form and suggested on contracts it was permissible to "x" out a date or time, initial it, and have the customer sign it. Mr. Ellman asked how would she feel, as a consumer, if the seller crossed out 14 days on a contract. It put the seller in a difficult position when telling the consumer they were losing rights if a seller in Nevada, who also had consumers in California, had to cross off the portion of the contract that dealt with Nevada's specific issues to sell to the California consumer. Ms. Guinchigliani observed he was now saying he dealt in cold calling. He responded they did sometimes. Some of their methods were cold call where they had a mutual referral. "A" would call "B" and say their mutual friend "C" suggested you might be interested in Tupper Ware. That was a cold call. Ms. Guinchigliani declared that was different from the testimony of the first hearing. Mr. Ellman indicated he was not at the first hearing but he could not imagine his colleagues would contradict that method of operation. She said the testimony, in her memory, had said it was done by referral. Mr. Ellman emphasized a referral was, or could be, a cold call. She said that had never been clarified and was important for the subcommittee to have known. Ms. Buckley said the testimony Mr. Ellman was providing would be covered in what was being discussed at that time. He could avoid problems by stating on the form that in Nevada the elderly and mentally ill were entitled to cancellation within 14 days -- a standard boiler plate sentence. She saw them all the time, not particularly in regard to Nevada, but in other states, i.e. in California the percentage could not be more than 19 percent APR, and different things like that. She had looked back through her notes and stated Ann Kruse, from Mary Kay had testified about it. Mr. Ellman declared these were multi-state companies and if every state had a different definition of who was elderly or mentally handicapped it would have to be spelled out. This would require reams of paper listing each state's definitions. The heart of their concern was there was nothing specifically articulable about being over the age of 60 that required somebody to have additional protections to cancel a contract for sale. Just because a person was over 60 did not mean they would be more or less rash in making a purchase. There were many middle aged and young people who made rash purchasing decisions just as easily as people over the age of 60. That was a major concern. He suggested the NAG approach which was, of course, adopted by Florida first. Florida had the highest percentage of elderly people in the nation as far as he was aware. Mr. Markels wondered if their intention was to go after illegitimate proprietors who were preying on the elderly and mentally handicapped who were more vulnerable. He wondered how the law would protect them. He did not think if they were observing a three-day cooling off period an illegitimate proprietor was going to observe a 14-day cooling off period. It seemed more appropriate to spend more resources to prosecute those people more stringently. That was what the NAG model attempted to do. Ms. Guinchigliani stated the idea for the bill came from seniors who were more vulnerable to writing checks to little groups who came to the door selling things. Many times, as a person was getting up in age, family members came in to review their check books and finances, and this gave them more opportunity to cancel a contract on a repetitive or unneeded purchase. Mr. Markels expressed it seemed well intentioned but the Committee needed to realize who Shakley/Amway business people were. They were people working part-time, many elderly, who were attempting to supplement their income in difficult economic times. Ms. Giunchigliani submitted to him that if they had people doing business on their behalf they better train them correctly or be liable. Therefore, she did not buy his argument. Mr. Fettic remarked he liked the mentally disabled part of the bill, however, he confessed he was going to be 60 years old in September and did not feel old! He wondered about the 14 days just because a person was 60 years old. His Mother was going to be 80 and she needed that kind of protection because her mind was not as sharp as it once was. He did not know where the line should be drawn but he was starting to have trouble with the age 60 issue. He could see himself taking advantage of it. He would buy something, use it for 14 days, and then say, "Sorry, I'm 60, take it back!" Chairman Spitler asked Ms. Guinchigliani if she wished to move on the bill, look at it more carefully, or what was her pleasure. She wished to get a feel from the Committee if there was a way to make it workable. Mr. Spitler referred to Ms. Buckley's reference to her notes and wondered if the representative could be contacted to clarify her testimony. Mr. Allard suggested there was a miscommunication. They said they worked off referral. It was as Mr. Ellman explained and most people were familiar with it. If they were at a Tupper Ware party, obtained a list of people, called the individuals on the list indicating a friend referred them. Thus, it was a cold call. That was what she was talking about when she said they worked off referrals. Ms. Buckley indicated she would like to see more work done on the direct sales part of it in order for the bill not to die. She had seen cases where the elderly were not as sharp as Mr. Fettic who had signed door-to-door contracts, mostly in the roofing and home repair area. She had never had a complaint from a Mary Kay or Shakley or any of the retail associations. She would like to try to save the elderly part of it but direct it toward the abusers. Ms. Brower suggested changing the age from 60 to 65 to accommodate Mr. Fettic. Mr. Allard wished to address the comments of Ms. Buckley regarding door-to-door roof repair. He asked if that was covered under the contractors board. If the sales persons were unlicensed contractors going door-to-door, and they were trying to fix that in subcommittee, he did not know how the bill effected that issue. Ms. Buckley indicated it would get at the unlicensed contractor but not the licensed contractor. The type she had experience with were the one-man operations who particularly went to mobile home parks. She stated she would like to see the bill explored to exclude legitimate businessmen but try to get an extended cooling off where the children would have time to investigate what the parents had done and work on that abuse. Chairman Spitler asked the subcommittee to work on it. There being no further discussion on A.B. 115, Mr. Spitler opened the work session on A.B. 25. ASSEMBLY BILL 25 - Prohibits discrimination on basis of sex in equal entitlement to public accommodations. Chairman Spitler informed the Committee there were two amendments from the Attorney General's office being distributed (Exhibit I). Ms. Brooke Neilson, Assistant Attorney General, testified they proposed to add two amendments to A.B. 25 to clarify the intent of the bill was not to interfere with the operation of certain legitimate businesses in the state of Nevada. The first one would be to exclude public accommodations where alcohol beverages were served. That language came from a New Jersey law that had the same exception in their gender discrimination bill. The second one, part (b), was to make clear the provision did not prohibit or any way interfere with retail sales. That language was not taken from any particular statute but was the purpose of part (b) of the amendment. Assemblyman Hettrick wondered if the last amendment could be construed thus: at a flea market, one person negotiated a price on an item, another person arrived and negotiated a price on the same item, one was male, one was female, now the law had been broken because one of the two negotiated a better price -- probably the female. It appeared to him that section 1 (b) would not allow for that because it had to be a posted discount and publicly advertised. How would that be handled? He felt more exemptions would have to be added because the law would be broken. Ms. Neilson stated his comment raised a point she had not considered. What they were attempting to state, and perhaps the language could be broadened to cover the situation described, was the law was adding gender to discrimination provisions in the state of Nevada and was not intended to interfere with discounting, selling or merchandizing in any way. It was intended to reach those situations, testified to originally, when for the exact same item a different price was charged depending upon the sex of the person, not to interfere with legitimate business, sales or discounts. She had looked at every statute throughout the country and there were 40 who had similar provisions. Some of them could do it with a statement of intent. She asserted, through the testimony they had provided, she hoped they had made clear they in no way intended to interfere with that type of sales activity. The section was designed for establishment stores where things were sold. They were not thinking of the flea market situation and she stated they hoped that type of transaction would not be interfered with in any way. Therefore, if there was need for additional language perhaps more work could be done on it. They certainly did not wish to interfere with the ability of a flea market sale to take place in a negotiated transaction of that kind. Mr. Hettrick recognized their intent to make it clear. He felt the language had to be extended because it said publicly advertised and posted in a conspicuous place. He also thought about garage sales. In his experience of doing a garage sale, he stated at the end of the day he did not care what sex walked up, he was giving things away just to get rid of them. He did not have anything posted in a conspicuous place and it was obviously a discount. He understood they were referring to a retail establishment but felt the language too vague. It needed cleaning up in order to pass the bill. Ms. Brower asked how many complaints had there been? The answer she had received in the last hearing was a couple of calls a month. She wondered if that was enough of a problem to necessitate legislation. Ms. Neilson responded that Deputy Attorney General Fink had answered the question at the first hearing. Her understanding of what he said was they believed there were other situations not reported because the law did not address them and there was nowhere to go. Mr. Spitler interrupted at that point expressing he might be able to add something. He felt Mr. Fink was responding to the question based upon what they had received and the problem was nobody knew where to report that kind of thing. In the first hearing they referenced Channel 13 where a reporter had done an excellent story which generated hundreds of calls. The story portrayed discrimination in beauty shops where women were charged more than men with the same length hair; dry cleaners where a woman was charged more to clean a man's blouse that she wore; it showed inequities with no place to complain. Mr. Spitler agreed with Mr. Hettrick that he felt the bill was salvageable but they were not approaching it. He did not know how to get there. Ms. Neilson agreed with his reflections. It occurred to her the way she had written the suggested language was too detailed and raised questions. Perhaps what needed to be said was simply it did not apply to discounts in sales of merchandise, retail or otherwise. Broader language with less detail would address the concern in a more satisfactory manner. Mr. Humke wondered why services had been omitted. Ms. Neilson added the providing of discounts and/or promotions from time-to- time for the particular service. She asserted his comment was well taken and explained they had only been looking at retail merchandising. Mr. Spitler indicated, from the tone of the discussion, A.B. 25 needed more work. Ms. Tiffany stated they were targeting two areas, the hair dressers and the dry cleaners. Those were all small business people. They were on every street corner. There were plenty of options. One could choose to go to another hair dresser or dry cleaner. Personally, she used dry cleaning discount coupons. She asserted she hated government interference, regulation or attacks upon small business any more than existed at the present time. She said if an individual came to her shop and, because she did not serve one person the same as another, she could be sued if A.B. 25 became law. The cost of defending herself could put her out of business. She asserted she could not support this legislation because it was geared toward two industries that were made up prominently of small business people. She felt there were choices and people could go elsewhere for those services. Ms. Guinchigliani stated she interpreted the legislation as a policy statement from the state regarding discrimination. Unfortunately it was dealing with gender; 15 years ago it probably dealt with religion; 30 years ago it probably dealt with one of the other little ancillary things added on regarding discrimination. She did not see it as an attack upon business. Most businesses were not charging based on gender, but there were some that were. If that was the case maybe they would begin to think about charging based on the services or the goods they were providing regardless of who was purchasing them. Prices should be set based upon the service, standards, time or whatever they charged. Chairman Spitler asked if anyone in the audience wished to speak on the issue. There being no more discussion, the hearing and work session were adjourned at 6 p.m. RESPECTFULLY SUBMITTED: Barbara Moss, Committee Secretary APPROVED BY: Assemblyman Larry L. Spitler, Chairman Assemblyman Sandra Tiffany, Chairman Assembly Committee on Commerce April 12, 1995 Page