MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session April 6, 1995 The Committee on Judiciary was called to order at 8:01 a.m., on Thursday, April 6, 1995, Chairman Sandoval 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. Bernie Anderson, Chairman Ms. Barbara E. Buckley, Vice Chairman Mr. Brian Sandoval, Vice Chairman Mr. Thomas Batten Mr. John C. Carpenter Mr. David Goldwater Mr. Mark Manendo Mrs. Jan Monaghan Ms. Genie Ohrenschall Mr. Richard Perkins Mr. Michael A. (Mike) Schneider Ms. Dianne Steel Ms. Jeannine Stroth COMMITTEE MEMBERS EXCUSED: Mr. David E. Humke, Chairman GUEST LEGISLATORS PRESENT: Speaker Joseph E. Dini, Jr., Assembly District No. 38 Assemblyman Marcia de Braga, Assembly District No. 35 STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Patty Hicks, Committee Secretary OTHERS PRESENT: Ms. Cherie Louvat, Executive Director, Food Bank of Northern Nevada Mr. Doug Busselman, Executive Vice President, Nevada Farm Bureau Service Company Mr. Pete Perriera, Food Bank of Northern Nevada The Honorable Robey Willis, Nevada Judges Association Ms. Paula Treat, Lobbyist, Nevada Judges Association Curtis E. Risley, Esq., Manager, Risk Management & Claims Department, Sierra Pacific Power Company Mr. W. Callahan, Carson City Sheriff's Department Ms. Sherri Laken, Nevada Eagle Forum Ms. Laurel Stadler, Legislative Liaison, Mothers Against Drunk Driving (MADD) Mr. Mike (Ike) Yochum, Independent American Party LT William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department Ms. Karen Winckler, NACJ Ms. Maddy Shipman, Washoe County Deputy District Attorney Mr. Gordon DePaoli, Walker River Irrigation District Mr. Jim Weishaupt, Walker River Irrigation District Ms. Lucille Lusk, Nevada Concerned Citizens Ms. Pam Wilcox, State Lands Mr. John Sarb, Administrator, Division of Child and Family Services Ms. Victoria D. Riley, Nevada Trial Lawyers Association Ms. Stephanie D. Licht, Secretary/Treasurer, Nevada Wool Growers Assn. Mr. Garry Ray, Loaned Executive, United Way of Northern Nevada and the Sierra Ms. Debbie Cahill, Nevada State Education Association ASSEMBLY BILL NO. 320 - Authorizes sheriff or officer in charge to refuse to receive into custody arrested persons under certain circumstances. LT William H. Cavagnaro, Legislative Liaison, Las Vegas Metropolitan Police Department, requested the committee to withdraw A.B. 320. Since the sheriff has been elected, he has formed a committee to study the jail problem within City of Las Vegas, Clark County, Nevada. This bill is premature at this time and is not needed for the depopulation of the jail. ASSEMBLYMAN ANDERSON MOVED TO INDEFINITELY POSTPONE A.B. 320. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. ASSEMBLY BILL NO. 313 - Revises limitation on liability for injuries to persons who enter or use premises of another to cross over to public land or for recreational purposes. Speaker Joseph E. Dini, Jr., Assembly District No. 38, prime sponsor, testified two years ago he submitted a more comprehensive bill to help his colleagues in Lyon County and the irrigation district, it had the same outcome of indefinite postponement after the hearing. A.B. 313 limits the liability of property owners and expands the circumstances under which the property owner has limited liability to owner's property for recreational purposes. The list of recreational activities included in the existing statute is deleted and the recreational activity is defined in the second part of the bill. Last session he introduced a bill limiting liability for irrigation districts and their employees for use of reservoirs. There were considerable problems in farmer owned reservoirs. Because of the drought and low waters, the hazards became prevalent. Most property owners throughout Nevada allow people to go hunting, fishing, and recreational purposes on their land. This bill brings us in line with California law and helps all the landowners in Nevada to give people access to their land. Another previous bill draft 31220 could be amended into this bill. Mr. DePaoli will suggest an amendment and he indicated he would support the amendment. Ms. Steel inquired if the person invited onto the private property does so at his own risk. Mr. Dini replied affirmatively. Ms. Steel asked if it applied under any circumstances. Mr. Dini indicated staff would be better able to answer than he. He advised one cannot cause something to happen. In the second part of the bill on page 2, line 13, provides existing common law as well as interpretation of the statute Presiding Chairman Sandoval directed Ms. Steel's attention to page 2, lines 1 and 2, beginning with subsection 3 on page 1. Ms. Monaghan expressed concern of making an enumerated list of recreational activities and not listing an activity. Mr. Speaker advised the amendment would add, "but is not limited to." Mr. Carpenter commented the bill not only protects the property owners but it enables those members of the public that want to engage in recreational activities to enjoy the land. Otherwise landowners would take measures to keep them off their property if they thought they would be liable for an accident. Mr. Speaker stated it was a statewide and national problem. This is an improvement for the landowner so he does not resist public access. Mr. Anderson stated this bill would also enhance the public who wish to use public roads that may cross or be adjacent to privately owned lands, such as historic public roads RS 247 that occasionally become controversial. Mr. Speaker replied it does allow public to gain access to public lands through private lands. Mr. Doug Busselman, Executive Vice President, Nevada Farm Bureau Service Company, testified in support of A.B. 313. They have been very involved in the ongoing issue of access across private lands to public lands. This type of legislation addresses the concern that landowners have in not granting access for fear of being subject to liability. Mr. Busselman stated this bill a good bill and urged passage. Ms. Steel requested specific examples of problems the farm bureau experiences. Mr. Busselman advised there are irrigation districts who own reservoirs which are multiple resources. For recreational purposes the public would be able to use the reservoir at their own risk as opposed to causing the landowner to deny access for fear of litigation. Mr. Carpenter advised as a landowner large liability insurance policies are carried. He recalled an accident on his property several years ago involving a jeep overturning causing him some concern. This bill will alleviate fears of litigation. Curtis E. Risley, Esq., Manager, Risk Management & Claims Department, Sierra Pacific Power Company, testified in support of A.B. 313. The power company is mainly concerned with the use of the upper Truckee River Canyon. The river draws hikers, rafters, and recreational users. In order to get to the river public access is to cross over the power company's land. In the past it has been posted in an attempt to prohibit the public access. California passed a land use statute very similar to this bill and has been successfully used in defense of litigation. With this in mind the power company has opened up the Truckee River to public access. Mr. Risley recalled a incident several years ago when a trail biker rode on a flume and fell off causing severe injuries. The power company was lucky they were not sued. This bill is beneficial to the landowner and public for recreational purposes. The power company is in support of Mr. DePaoli's suggested amendment to section four. Ms. Buckley inquired how many lawsuits have been filed against Sierra Pacific Company for allowing public access onto their lands. Mr. Risley advised it is very difficult to determine because they get sued when injuries are sustained as a result of entanglement into their power lines. They are sued on the average of once a year. Ms. Buckley was referring only to the subject matter of this bill. As far as coming on the land, the power company was sued last year due to an incident in California. It is not something they are sued regularly on, but he would have to research in order to come up with a number. Mr. Mike (Ike) Yochum, Independent American Party, testified in support and urged passage of A.B. 313. It makes good sense. Ms. Madelyn Shipman, Washoe County Deputy District Attorney, testified in support of A.B. 313. All counties and cities are also owners of land and unimproved property that provide access to recreational areas. To date under the current law, they have been protected in the same manner as private property owners for unimproved land held in ownership by a city or county. Insurance for the counties are provided for with taxpayer dollars on an uninsured basis. Ms. Shipman raised the issue of unimproved, unmaintained land with a trail system providing public access for recreational purposes, the word, "expressly invited", could take out the immunities that otherwise appear on the first page, under section 2, l. 16. It has always been read a duty of care owed to an invitee means an expressed individual invitation to a person to come on the land to whom you owe a duty under common law. The cities, counties, irrigation districts, and other governmental entities that do own large areas of land under this bill or unless it is clarified would have to not put any signs up and not invite the people on the land specifically or expressly. In Washoe County there is the Steamboat Ditch Trail which is partly in Mr. Sandoval's district. Mr. Sandoval there is a lot of concern regarding liability. Mr. Sandoval asked Ms. Shipman how this bill would protect those landowners along Steamboat Ditch. Ms. Shipman advised it would protect all the private property owners over whose land the ditch traverses. In fact this became an issue in the city of Reno when the city decided to expressly improve a portion of the Steamboat Ditch Trail over which it had ownership. The point was they posted a sign that said this is the end of the trail. In this manner it is made clear from that point forward was, if at all, at the permission of the private property owners. Then it would have the immunities provided by this bill. Mr. Sandoval's concern was the bill can be construed to mean someone who provides access to public lands. Some would argue Steamboat Ditch is not public land. It is an easement. Mr. Sandoval asked Ms. Shipman if this would cause any distinctions. Ms. Shipman replied as long as it is land being used for recreational purposes with landowners permission there would be protection under this bill whether or not it involved federal land or access to federal land. Ms. Buckley expressed a few concerns about the bill. Paragraph one seems to apply to uninvited individuals who come onto the premises. She recalled there are uninvited trespassers, permissive invitees, and express invitees. Ms. Buckley tried to ascertain what this bill is intended to focus upon. Ms. Shipman advised this is not her bill and was in support of A.B. 313. In the original language under paragraph 2.a., it has always been interpreted to whom a duty of care is owed would be the express invitee. It is saying these people are protected. It actually is making an exception or immunity for someone who is not extending any assurances that the premises are safe for that purpose or constitute to the invitee to whom a duty of care is owed. By adding paragraph four on page two, it seems the section is deleted because the express invitee is owed a duty of care. Ms. Buckley surmised it was Ms. Shipman's opinion this bill would create an exception as well for express invitees and recreational users. Ms. Shipman advised it would create a potential area of added liability or exposure if expressed invitee would be applied generally to any thing that would invite the public onto the land as opposed to a passive allowance of the use of the property. With regard to permissive invitees and trespassers, Ms. Buckley understood that even if the landowner knew of any danger, there still would be no liability. In other words, a negligent failure to warn. Ms. Shipman advised this was correct unless it falls within subsection one, paragraph 3, which is willful and malicious failure to God to warn against dangerous conditions in structure or activity. It would become a question of fact. Ms. Buckley inquired if she had any knowledge in California whether they have established more or less an abolition of strict liability for injuries that occur on private land. Ms. Shipman had no knowledge of California laws. Ms. Steel asked if Ms. Shipman had suggested terminology to use in developing a passive invitation, i.e., labeling a trail head, etc., to stop the conflict there Ms. Shipman advised she did not at this time and would be happy to work on the development of the terminology. Presiding Chairman Sandoval advised it would be appreciated if she could provide the Chairmen with a draft. Ms. Ohrenschall inquired if the language was shifted around to change the expression from expressed invitee and limiting to social invitee, if it would take care of the issue brought up. Ms. Shipman advised she has a concern about the word social because it is not normally seen in a legal context. There are definite legal terms of art as it relates to invitees and that word does not appear. Mr. Gordon DePaoli, Esq., Walker River Irrigation District, accompanied by Mr. Jim Weishaupt, Manager, Walker River Irrigation District, testified in support of A.B. 313, attached as (Exhibit C). Mr. Anderson expressed concern about RS 2477 historic roads that are occasionally blocked off. When public try to gain access to recreational areas in close proximity inadvertently move off the road to continue sightseeing or picture taking, they are not expressly invited. Would the property owner become liable for something that may happen to them even with the enumerated list of activities. Mr. DePaoli advised the statute would continue to provide protection to the landowner who has someone injured on his property under those circumstances. There is still obviously exceptions to the provisions which someone could argue might apply. In most cases those exceptions would not apply. Mr. Anderson called attention to Ms. Shipman's comments regarding implied consent. Expressly invited would come from a recreational sign placed to designate a park area. It would appear to invite public access to the area. Mr. DePaoli advised liability applies only to the person who extended the invitation. For example, whether it would independently affect the immunity of the owner of the property if the person injured had been invited by the lessee of the property. It seems the intent is the person that extends the invitation is the one person whose liability is no longer limited by the statute. Perhaps, some clarification is needed there. Mr. DePaoli suggested an amendment at l. 17 to add, "includes but is not limited to." A couple of Latin phrases states anything that is not listed is excluded, and the other, anything similar to what is listed is included. The Supreme Court issued an opinion that it does not matter any more whether somebody is a trespasser or an invitee. If you have not exercised reasonable care, you are going to be held liable. In regard to Mr. Anderson's question of Ms. Shipman's concern, Mr. DePaoli stated it seemed to provide protection to people who simply post notice of trespass signs. In subsection 4 an additional sentence could be drafted to state, "for purposes of this subsection, signs that designate trail heads, etc., do not constitute an express invitation." Mr. Anderson requested Mr. DePaoli to provide the Supreme Court citation for the committee, attached as (Exhibit D). Mr. Anderson expressed concern that historic trails frequently cross or run adjacent to private property in order to reach historical sites. He did not want the private landowner to gain additional responsibility for allowing trail marker groups to come in and mark such places. It would drop the opportunity to mark historical sites that moved from public ownership into private ownership of historical value. Mr. Anderson was concerned about the statute and the liability. He would like to ensure private landowners not pick up additional liability for recreational activities. Ms. Monaghan mentioned she has concerns about the enumerated list of recreational activities. She asked if it would serve us better not to use a list for fear of leaving out an activity. When we start making lists, we tend to get into trouble. Mr. DePaoli replied a list helps as long as it is not made an all inclusive list. For anything that is listed, it eliminates a dispute as to whether it constitutes a recreational activity. Mr. Goldwater expressed happiness to be able to finally use the term "spelunking," which means to explore caves or cavernous areas. Ms. Buckley stated it was a good idea to encourage public access for recreational purposes. She inquired under paragraph one if it would delete the attractive nuisance theories, negligent failures to warn. She asked for situations which may be covered by this other than "spelunking", and the list of recreational activities. The power line example where the individual sued because of the dirt bike accident, there was no negligence on the part of the landowner. She requested Attorney DePaoli to comment on the foregoing concerns. Mr. DePaoli stated that first of all the bill will not do that much to broaden the protection that the statute presently provides. He did not believe the statute eliminates legal theories of attractive nuisance. In this type of situation one is almost always going to be in an argument of whether the exception in subsection 1 on page 2 does or does not apply to the extent that someone is using this statute as a defense. Mr. DePaoli added that his law firm represents Sierra Pacific Power Company. There have been many line contact cases. He was not sure if any were the result of recreational activity. More often than not, they are the result of some construction activity, tree trimming activity, etc. In the ordinary case this statute probably would not apply. There could be some potential if the line contact occurred as the result of a recreational activity, i.e., hand gliding, mountain climbing under a power line. Mr. Carpenter inquired if A.B. 313 would help in recreational activities at reservoirs. Mr. DePaoli replied it would. Mr. Carpenter remarked that if Mr. DePaoli's amendment were incorporated from last session, the whole bill may be at risk. Mr. DePaoli stated a balance has to be maintained in allowing injured people reasonable access to the courts for recovery and protection of others against unreasonable liability. Last session the bill was too broad and failed. They are pleased A.B. 313 can provide assistance. Mrs. Lucille Lusk of Nevada Concerned Citizens testified in support of A.B. 313. They see it as encouraging personal responsibility. In reference to p. 2, ll. 13-14, Mrs. Lusk asked if these lines were necessary or if it was already covered in l. 12 when it indicates there is no limitation on liability to a person that the owner or lessee owed a duty to keep the premises safe or warn of danger. Ms. Pam Wilcox, Administrator, Division of State Lands, testified they rely on the statute in management of state lands. They found the bill confusing. They fully support the intent of the bill to clarify the protections. They were not sure what "expressly invited" meant or its effect. They were concerned the enumerated list may be a limiting list and hoped for clarification. If language is developed to make sure that a park sign is not an express invitation, they circulated brochures to encourage public to visit state parks. They would like to make it clear those are not express invitations which would expand the state's liability. Ms. Stephanie D. Licht, Secretary-Treasurer, Nevada Wool Growers Association, testified in support of A.B. 313. Most of the wool growers do utilize public lands for grazing. They do have some places where many of her constituents are contemplating posting a sign, "Activities of living can be hazardous to your health. Be advised to proceed with caution." Presiding Chairman Sandoval advised A.B. 313 will be referred to a subcommittee to address the proposed amendments. Subcommittee appointment consisted of: Mr. Sandoval, Chairman; Ms. Ohrenschall, Mr. Goldwater, and Mr. Carpenter. A hearing will be scheduled and posted in the very near future. Mr. Anderson requested the subcommittee to take into consideration BDR 3-1220 and other proposed amendments. Particularly, posted sign areas for informational purposes and not invitational purposes were requested to clarify. It is the intent to address all the issues raised. ASSEMBLY BILL NO. 293 - Removed references to county jail in penalty related to domestic violence. Ms. Paula Treat, Lobbyist, Nevada Judges Association, accompanied by the Honorable Robey Willis, Nevada Judges Association, testified the bill clarifies option for the judges to use city or county jails. Judge Willis advised this bill could conceivably be the smallest bill of this session. A Las Vegas lower court judge ruled that municipal court judges could not put restraining order violators into jail because the statute read "county" jail. Since the decision, the supreme court ruled municipal court judges could order jail confinement and recommended the language in the statute be clarified. Mr. Carpenter inquired if "county jail" were deleted, would it be a possibility for a judge to sentence an offender to imprisonment to whatever. Judge Willis suggested it could be just "jail" rather than county jail for further clarification. Mr. Carpenter commented if "city" were added, it would eliminate other situations. Presiding Chairman Sandoval advised it was the committee's intention to take action on A.B. 293 during the work session on April 7, 1995. ASSEMBLY BILL NO. 297 - Requires juvenile court to order counseling for child and parents and to impose civil penalty on parents under certain circumstances upon adjudication of child as delinquent. Mr. David Goldwater, sponsor, distributed proposed amendment for A.B. 297, attached as (Exhibit E). He stated the impetus of this bill was Judge McGee's desire for more tools to hold parents accountable for children's actions. It has been stated in this society that children are coddled too much. It is grave error to operate under the premise that it does. Mr. Goldwater commented he knew what it was like to have a friend and a team mate shot in the face at point blank range. He still does not feel that juveniles are born bad. Every person in this state has a worth and a potential. No one is expendable. Everyone has an equal opportunity to succeed. When fourteen year olds are committed to Nevada State Prison, he feared we were giving up on people and not solving the problem. This legislation makes parents more sensitive to children's actions and is important to parent's responsibility. Mr. Goldwater urged the committee to pass A.B. 297 as a needed improvement to our penal system. Presiding Chairman Sandoval referred to p. 2, section 2.b., in the event the parent is unable to pay the civil penalty, he or she can perform public service. He asked if a civil penalty could be imposed in addition to public service by the judge. Mr. Goldwater was amenable to the suggestion. Mr. Goldwater advised he would have no objection if this were amended into section 8 of Governor's bill, A.B. 317. Mr. Perkins inquired if it was the intent to not include a seventeen year old in A.B. 297. Mr. Goldwater responded youths seventeen and eighteen years old have achieved enough maturity such that a parent is no longer as influential after the age of sixteen. It was his intent not to hold parents liable after the age of sixteen. Ms. Steel advised the age of majority was eighteen. She indicated she would be more comfortable if the age was changed from 16 to 18 to comply. Mr. Goldwater would be amendable to change from 16 to 17. In reference to combining civil penalty and community service, Ms. Steel inquired if it was in addition to criminal charges. Mr. Goldwater commented the parent has not committed any criminal acts. It would not be covered under this bill. Under the Governor's bill, A.B. 317, the parents are not liable for restitution to victims. Mr. Carpenter advised parents should be responsible until the age of majority is reached. He commended Mr. Goldwater for having the eternal optimism of youth. Mr. Anderson stated in terms of responsibility eighteen becomes transitional period and are held to a standard during that time period. Every year he sees tragedies in eighteen year olds who are told by their parents the day after graduation, they will be gone and are on the street. Because of all the problems involved with young people, parents some times do not want the responsibility. Juvenile behavior is not subject to age. If it is the will of the committee, Mr. Goldwater is amenable to the age change. Mr. Perkins recalled when working on child abuse cases, parents lost control of a child by not creating a bond of mutual respect. During preadolescent years, this bill will be helpful. In two cases of drive by shooting offenders, one was committed to Nevada State Prison, and the other to Nevada Youth Training Center. When the incidents occurred neither parent knew the whereabouts of their child and did not care. If the parents do not care about their child, they may care about the community service ordered by the judge. This legislation may create a parental bond to make a positive impact. Ms. Stroth inquired if the counseling has to be court approved. Mr. Goldwater advised it is court approved counseling. Ms. Steel asked if there was a provision for parents in failing to comply with court approved counseling. Mr. Goldwater replied a violation of the court order is the same as for any other order. Mr. Carpenter advised he was enthused about A.B. 297. It is a good sign when a teenager realizes parents are responsible. Mr. John Sarb, Administrator, Division of Child and Family Services, testified in support of A.B. 297. In reference to restitution, Mr. Sarb stressed the importance of its inclusion in addressing parental responsibility. Mr. Anderson asked Mr. Sarb if A.B. 297 and A.B. 317 would be supportive of each other. Mr. Sarb advised this was his opinion, particularly with the inclusion of restitution. Ms. Steel asked if restitution was a civil penalty. Mr. Goldwater replied at the discretion of the judge, it probably would be. When children are repeating status offenses, under this provision the judge may impose a fine or penal measure. Ms. Ohrenschall asked if the bill applied when there was an adjudication of a delinquent act and not to children in need of supervision or status offenders. Mr. Goldwater advised it was supposed to apply to status offenses. Mr. Neilander advised it would only apply to delinquent acts. There are some delinquent acts where there is no individual victim. There is still an opportunity to impose a civil penalty. Section 8 of the Governor's bill, A.B. 317, does have the traditional restitution provision which applies to parents or guardian. If A.B. 297 is integrated into section 8, the part regarding civil penalty would be integrated. The counseling provision is already included. Ms. Sherri Laken, Nevada Eagle Forum, testified against A.B. 297. Ms. Laken related a new program where a mother in Virginia is spending ten days in jail because her sixteen year old son frequently missed the 11 o'clock curfew. Society is not helped in any way by putting the mother in jail. When parents may have to work extra hours to pay a fine, community service, or counseling, it is removing the parent from the home which is not helpful. Ms. Laken expressed concern about forcing a person into psychotherapy. Psychotherapy should be a personal decision. In reviewing Washoe County parenting class and literature, it was Ms. Laken's opinion the counselor's opinion of parenting is forced onto parents and community. Ms. Laken believes in parent responsibility and taught her children accordingly. When children become rebellious against home rule, problems surface much earlier than the teen years. Ms. Laken cautioned a bill like this can mushroom beyond what the lawmakers intended it to be. Ms. Ohrenschall observed basically a civil penalty and not criminal is being considered in this bill. The Ms. Laken's example of the mother in Virginia would not apply because of the civil nature. Secondly, the bill as written does not apply to status offenses. Missing curfew would be a status offense. It would not be a delinquent act. Ms. Laken testified from experience that when a small step like this is taken, the next time it goes a little further. Ms. Laken concluded that it could eventually reach that point. Ms. Ohrenschall understood Ms. Laken's concern about not involving government into the family circle. Ms. Ohrenschall pointed out Mr. Goldwater's concern was to throw up a flag to parents who need to know about the behavior of their child. The penalty in the bill is to draw the parent into working with the child rather than actually to impose the penalty. Ms. Steel remarked there are million of parents like Ms. Laken who would never have to worry about this law. However, there are children who have drug problems. The reason they have these drug problems and caught with drugs is because their parents have the same drug problem. If you do not treat the parent, the child is not going to be treated effectively. The purpose was to reach the parent through the child and help both of them. The bill is permissive. In the event one of your children went astray in spite of your efforts, the judge would have to impose any penalty on the parent. The judge would not send you to jail under this statute unless a court order was defied. This bill makes the parent become more involved with the child, thereby keeping government more out of the family. Ms. Laken stated this bill does not address those problems. It leaves it wide open to go much further than that. With so many bills, they are so vague. One does not know who is going to impose and how they are going to be imposed. Ms. Laken said she is in favor of parental responsibility; but, she is also in favor of personal responsibility. Mr. Carpenter commented that the Virginia parent in jail may not have tried to be a good parent in keeping her child under control. The intent of the bill is to reach those parents that are not being responsible. This bill is trying to teach parental responsibility. Ms. Monaghan advised she has three eighteen year old boys. At fourteen the rebellious nature of one child did not last for six weeks. It lasted for six years. The biggest thing was not to give up. He never actually broke the law, but it would have been very easy and tempting to give up and let him continue on. Ms. Monaghan's persistence in maintaining parental responsibility for her son got them through this turbulent period. Ms. Monaghan stated it is very easy for parents to give up after two or three years. Mr. Mike (Ike) Yochum, Independent American Party, testified in opposition to A.B. 297. He commended Mr. Goldwater for his concern. Morality has been completely eliminated from the classroom. We have a welfare and taxation system that encourages irresponsibility. Until these problems are addressed, no permanent solution will be had. Mr. Goldwater's proposed bill is a Band-Aid and is not addressing the real problem. To try to shift this blame to the parents because we allowed liberals to take charge of our government in making idiotic rules, one must accept responsibility for that. In raising three children and debunking them from government school, they did turn out all right. On this basis, Mr. Yochum registered his opposition to the bill because it does not address the major issues. Ms. Lucille Lusk, Nevada Concerned Citizens, testified she originally came to speak in opposition to A.B. 297. However, Mr. Goldwater's proposed amendments have largely resolved her concerns. Ms. Lusk inquired if every wrong act of a teenager was the result of parental failure. Most of us know that it is not; and this is the reason we do not want to make these provisions mandatory. We want a judge to be able to make a rational decision. In most cases we can count on the judge's discretion. Also, does a person of any age learn responsibility by having someone else punished for their behavior. This is where we want to see the personal responsibility come into play. We want the major emphasis to be in place on the individual who actually commits the delinquent act. Ms. Lusk agreed that some times parents are involved. When that occurs, the judge needs tools to remedy the problem. Assuming the bill will become optional, placing the tools in the hands of the judge, she asked specific questions regarding Mr. Goldwater's amendments. The term guardian concerned Ms. Lusk. She related her daughter and son-in-law's concern in assuming liability for a nephew they cannot financial handle. They are a young married couple, struggling financially. Ms. Lusk asked if a fine or civil penalty can constitutionally be imposed on two people for one offense or on a person other than the one who actually committed the offense. Ms. Lusk saw this as a different concept from A.B. 317 which holds the parent financially responsible for fines and restitution. The actual penalty was imposed on the offender. This is an important distinction. Yet accomplish providing the tools for a judge to involve the parent. Of course, parents have financial responsibility for the costs incurred by their children. Ms. Lusk agreed that the age should be eighteen. Otherwise, there is much confusion in determining different age categories. If this bill is integrated into A.B. 317 with focus on parental responsibility for the acts of the child rather than imposing a separate penalty would achieve the goals and resolve the concerns raised. With regard to civil penalty, Ms. Steel assumed the parent would have to pay for counseling fees for the child and themselves. Ms. Lusk responded those provisions are included in A.B. 317 in different verbiage that makes it clear the parents are responsible without the implication the parent is being penalized. The judge needs to work with the family to improve their situation. Ms. Steel suggested to Ms. Lusk to include legal guardianships into the bill to alleviate her concern. Ms. Lusk advised legal guardianship is at issue in her daughter's situation. However, with it being non-mandatory, it is less of a concern. Mr. Manendo shared concerns with making it mandatory in a situation where there may be only one parent who is physically or mentally disabled. Ms. Lusk saw an advantage in parental involvement in public service if they were involved together. Ms. Debbie Cahill, Nevada State Education Association, testified in support of A.B. 297. For years educators have been asking for help. They have been unable to reach parents when needed. Any benefits accrued from this bill would spill over into the educational area. For that purpose, Ms. Cahill stated issues related to parental responsibility may be the most important education reform measures passed in this session. Presiding Chairman Sandoval advised it was the intention to schedule A.B. 297 for April 7 work session along with the Governor's bill, A.B. 317. ASSEMBLY BILL NO. 305 - Revises provisions governing liability for certain persons in connection with donated food and other grocery products. Assemblyman Marcia de Braga, Assembly District No. 35, sponsor, advised the purpose of the bill is to strengthen the law for the benefit of people who donate food and people who deliver the food to the home. It requires wholesome food to be distributed. There cannot be intent to deliver food that is contaminated. It does expand immunity from liability for volunteers who meet all state and local laws. Ms. Cherie Louvat, Executive Director, Food Bank of Northern Nevada, testified her organization was a support system for 82 agencies in the 14 northern counties of Nevada, attached as (Exhibit F). Their counterpart in southern Nevada is Community Food Bank of Clark County providing food service in 3 counties to 100 agencies. They provide food support for emergency food programs, soup kitchens, senior nutrition programs, residential agencies, substance abuse rehabilitation programs, group homes for handicapped, family and domestic violence shelters, and day care centers. This fiscal year they will distribute $3.5 million dollars of donated food to aforementioned agencies serving the ill, needy, elderly, and children. Although $200,00 is raised annually to enhance the program, the majority of the food distributed is donated from corporations, i.e., Kraft, DelMonte, Nabisco, Procter & Gamble, Quaker. Through affiliation with Second Harvest National Food Bank Network, more than 350 national donations are received. Corporate management of these companies has been educated about hunger issues. They have made a conscious decision to donate rather than dump unsalable products. Now, most companies will manufacture to order which reduces the amount of surplus available. Improved quality control and reduction in test marketed items are additional reasons for diminishing supply. Local donations are required to make up for the diminished supply. While Raley's and Scolaris have resolved their concerns about liability issues, Albertson Supermarkets has a no donation policy due to an out of state lawsuit. A.B. 305 will be beneficial for both potential donors and the charities to whom they contribute. While we have little farming and no food manufacturing in this state, one of the few plentiful resources available is prepared food. This valuable resource is relatively untapped. In 135 cities in the United States there are prepared and perishable food programs that pick up food from restaurants, casinos, and other sources of food that have been prepared into a meal. The liability issue is the primary concern of donors. A strong good Samaritan law is the foundation of a good prepared and perishable food program with stringent health and food safety regulations. In meetings with the Washoe Health Department, no opposition to this bill was expressed. With frivolous lawsuits abounding, many potential donors have valid concerns about liability. As contributions are diminishing and expectations of a growing number of hungry, it is hoped this committee will see a need for a stronger good Samaritan law and will enact the proposed legislation. Mr. Anderson advised his only concern is there is no provision for those people who might want to discredit a food program by donating contaminated food purposefully. He wondered if this bill would provide those individuals protection they should not otherwise be entitled to. Ms. Louvat referenced food that is wholesome and not wilfully with the intent to cause illness or harm was included in the proposed bill. Mrs. deBraga confirmed unless the injury or illness directly resulted in gross negligence or wilful misconduct of the donor, donee, organization, or employee and they have to comply with existing regulations. Ms. Ohrenschall complimented Assemblyman Marcia de Braga for sponsoring A.B. 305. There was a real need for this legislation. Mr. Garry Ray, Loaned Executive, United Way of Northern Nevada and the Sierra, testified in support of A.B. 305. There is a lot of food and food products that can be used to provide for the hungry. Presiding Chairman Sandoval advised it was the intention to schedule A.B. 305 for April 7 work session and entered (Exhibit G) for the record. During the break Mr. Neilander distributed three amendments and reviewed them briefly with the committee: Amendment No. 134 of A.B. 40: This bill was referred to subcommittee. Initially the bill had a list similar to the whistle blower list to provide protection for employees who are retaliated against by employers. The subcommittee decided to add the reference to administrative proceeding in order extend the protections to administrative proceedings. The amendment restores the statute in deleting ll. 2-26 of the bill and inserting, "judicial or administrative" in place of "courts." Also, it adds a new p. 2, subsection 3 of the amendment stating, "the provisions of this section do not apply to an adversarial, judicial, or administrative proceeding between the employer and employee." After discussion and vote on this amendment, definition of "administrative" needed further refinement. It is brought to the attention of the committee in terms of their deliberation as to whether or not to bring the bill back to committee. Amendment to A.B. 132, food stamp bill, brought forth by the Welfare Division to bring the statute in compliance with federal law and to allow for aggregation of dollar amounts for the purpose of charging a felony. Because as recalled, the dollar amount or the difference between a felony and petit larceny was $250, and the ability to aggregate those amounts was desired. The bill provides a definition of access device and the reason is because the bill drafter discovered the federal law had an additional change not included in the bill draft. The definition of access device is provided in the proposed amendment. Coupon in subsection c is defined to include food stamps, coupons, certificates or access device. Now reference to value of all coupons by definition includes access devices and certificates. The remainder of p. 2, subsection 5, aggregation provision to allow aggregation of those dollar amounts for separate acts committed within six months where none of the acts individually is punishable as a felony. The value can be aggregated or accumulated. Subsection 6, Mr. Neilander developed language to create an exception or a mitigation for the person who sells the coupon in exchange for cash for purposes of purchasing items not available through the coupons for items of necessity. Mr. Neilander read, "partial mitigation of the offense for a person convicted of violating these provisions if sold or transferred the coupons for cash to buy necessities which may not be obtained with coupons." There is a noninclusive list of examples of necessities. Mr. Neilander responded to Mr. Goldwater's suggestion by using the phrase " such as" instead of "including," makes the list expandable. Ms. Ohrenschall stated if the list were particularized with "not limited to", she would be more comfortable. The final amendment was A.B. 93. This bill has to do with the 305 Program. One part of the program, the offender is treated in prison. The second part is the offender is treated in residential confinement outside of the prison setting. The purpose of the amendment was to clarify the phrase, "entire program," referring to phase one and two. This bill provides a definition of "entire program." It addresses the concerns of the committee that the director be required to give preference to those persons who are capable of completing both phases to the extent the director could determine. Mr. Neilander concluded his brief explanation of the amendments. Committee members were asked to direct their concerns to Mr. Neilander. Mr. Anderson will make a floor statement on S.B. 41 and amendments regarding confiscated weapons. It will go on second reading April 7. There being no further business, the meeting adjourned 10:42 a. m. RESPECTFULLY SUBMITTED: Patty Hicks, Committee Secretary APPROVED BY: Assemblyman David E. Humke, Chairman Assemblyman Bernie Anderson, Chairman Assembly Committee on Judiciary April 6, 1995 Page