MINUTES OF THE ASSEMBLY COMMITTEE ON JUDICIARY Sixty-eighth Session June 26, 1995 The Committee on Judiciary was called to order at 8:13 a.m., on Monday, June 26, 1995, Chairman Humke 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 Mr. David E. Humke, 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 GUEST LEGISLATORS PRESENT: Assemblyman William Harrington Senator Kathy Augustine STAFF MEMBERS PRESENT: Dennis Neilander, Research Analyst Joi Davis, Committee Secretary OTHERS PRESENT: George Flint, Lockwood Mobile Home Park Charles Cook, Nevada Land Title Association Pat Coward, Nevada Land Title Association Catherine Gregory, Nevada Mobile Home Park Association Stan Olsen, Las Vegas Metropolitan Police I.R. "Renny" Ashelman, Southern Nevada Home Builders Greg Harwell, California Automobile Association Rota Rosaschi, Nevada State Welfare Stan Olsen, Las Vegas Metropolitan Police Department Len Nevin, former Legislator ASSEMBLY BILL 731 - Requires that certain juveniles charged with felony involving use of firearm be prosecuted as adults. Assemblyman Bill Harrington, stated there is a trend in southern Nevada whereby many of the gang members will require, as initiation into the gang, the use of a firearm in a crime by a young would-be member. This is because the older members know the younger member will be immune from much of the prosecution or the punishment will be slight. Dr. Harrington continued A.B. 731 is an attempt to discourage the use of younger gang members as "trigger men" by allowing the punishment to be the same. Ms. Buckley asked Dr. Harrington if the contents of this bill were already covered in many of the legislation already passed out this session dealing with guns and juveniles. Dr. Harrington stated much of the bill would be covered in Assemblyman Marvel's bill. Lt. Stan Olsen, Las Vegas Metropolitan Police Department, added his support of the bill and concurred with Dr. Harrington regarding the use of younger gang members. Mr. Anderson asked if the current law reaches juveniles in gang affiliation, especially the initiation process. Lt. Olsen stated yes there was legislation passed in 1991 which assisted in this regard; however, gang members are very intelligent in manipulating the laws so any law that is enacted to deter the younger members from becoming gang members would be a good tool. ASSEMBLY BILL 730 - Revises provisions governing elective treatment programs for alcoholics and drug addicts convicted of crimes. Chairman Humke asked if there was anyone present to testify on A.B. 730. Seeing no one, he closed the hearing in that regard. Mrs. Monaghan informed A.B. 730 came from Health and Human Services initially requested by Parole and Probation. On the floor, it was re-referred to Judiciary because all the drug bills were here. Mr. Anderson noted A.B. 730 was similar to many other bills the committee has examined this session in continuance of the A.C.R. 71 Study Committee. Chairman Humke noted perhaps because of the delay in posting the sponsor of the bill was unaware of the hearing today. ASSEMBLY BILL 733 - Revises provisions governing enforcement of lien for unpaid rent against registered owner of recreational vehicle, mobile home or manufactured home. Assemblywoman Genie Ohrenschall, Clark County District 12, explained A.B. 733 adds one small protection to mobile home park residents by stating their mobile home or manufactured house cannot be sold for delinquent rent or rent and utilities unless the amount of the indebtedness exceeds $2,500.00. Ms. Ohrenschall stated currently the law in this regard provides protection for four months rent. In view of the range of monthly rents in mobile home parks, four months rent does not always amount to very much money yet the result could be devastating, especially for a senior citizen whose home is the only thing they own of any value. Ms. Steel asked if there were any statistics available indicating how many mobile homes have been sold for a $600 indebtedness? Ms. Ohrenschall stated she had none but has been attempting to obtain such statistics from the Clark County Assessor's office. Ms. Ohrenschall provided additional comments regarding the individual circumstances she has seen while walking her district. Mr. Schneider asked what the value was of an average mobile home. Ms. Ohrenschall stated the assessor's office has indicated the approximate value for the low-end mobile home park is $8,000.00. Len Nevin, former Legislator, provided the genesis of A.B. 733 was as a result of legislation he passed in 1987 because homes were being taken away from people who were unable to pay their medical bills. The 1987 law set forth a lien could be placed on the residence but the home could not be sold. That idea is now being expanded with A.B. 733. George Flint, Lockwood Mobile Home Park, located in Sparks, stated retirees on fixed incomes have a tendency of living in fear for their security. Mr. Flint stated A.B. 733 in no way changes the ability or right of the park owner to file a lien after a 30-day arrearage. In regards to the value of a mobile home as requested by Mr. Schneider, Mr. Flint informed some mobile homes could be re-sold as high as $35,000 to $40,000 due to improvements made thereon. Mr. Flint continued some mobile home park rents are as low as $75 per month so under the existing statute you could owe only $300 and still be subject to losing your $25,000 home. Mr. Flint concluded A.B. 733 is a fine consumer bill and he supports the same. Mr. Schneider noted with the proposal of A.B. 733, someone with rent as low $75 per month, could go almost two years without paying any rent. Mr. Schneider acknowledged losing your $25,000 home for back rent of $300 was not fair, nor it is equitable to the park owner to not get any rent for two years. Mr. Flint concurred. However, from a practical standpoint he did not see that situation happening yet acknowledged some abuses could occur. In addition, the situation would not affect the large mobile home park owner dramatically. Mr. Carpenter stated the bill could work the opposite as it is intended because if a person gets $2,500 behind in rent, they are going to lose their mobile home anyway. Further discussion was held regarding possible abuses under A.B. 733. Ms. Ohrenschall commented further in support of her bill. Assemblywoman Barbara Buckley, Clark County District 8, stated she supported A.B. 733 and she has many mobile home parks within her district. Ms. Buckley stated there is another remedy that has not been addressed in the testimony thus far. That is, when a mobile home tenant falls behind in the payment of rent, a landlord may serve a 10-day pay or quit notice to proceed with eviction within the first 30 days. A.B. 733 only deals with the sale of a mobile home pursuant to delinquent rent but does not affect the other remedy--eviction. Mr. Carpenter commented, as a mobile home park owner, Ms. Buckley's comments go directly against the well-being of the tenants by forcing owners to serve eviction notices. Ms. Buckley responded she simply was reminding there were other avenues available since the previous testimony did not indicate as such. Mr. Carpenter noted the bill also includes "recreational vehicles" and these vehicles can be hitched up and removed from the park in five minutes so they should study that issue further. Mr. Schneider concurred the "recreational vehicle" language should be removed from the bill. Mr. Carpenter stressed A.B. 733 provides a false sense of security for the mobile home owner and how would this bill affect the involvement of a mortgage company? Ms. Ohrenschall stated she was amenable to suggestions to the bill and concluded by describing in detail a situation involving an elderly widow who fell behind in rent payments due to the death of her husband. Joe Guild, Attorney at Law, representing Nevada Mobile Home Park, stated they would not suggest any amendments to A.B. 733 but would rather see it defeated entirely. Mr. Guild stated on page two, line 23, it would make it impossible for the lien process to ever work. He stressed his clients use the lien statutes in conjunction with the eviction process. Mr. Guild informed, in Washoe County, if there is a judgment on a complaint for eviction and a writ of restitution, these two items cannot be used to lock-out the tenant from his coach unless you have possession of the coach. In that regard, the lien gives automatic rights of possession without any judicial process. Mr. Guild added there is plenty of notice given the tenants of the lien process and they are entitled to proceed with an appeal process in contest of the lien. Lastly, Mr. Guild stated the way A.B. 733 is written there would be a conflict with other provisions in the chapter due to the current cap on the lien amounts of $2,000 so the $2,500 figure in the bill, if the committee processed it, would have to be changed to avoid conflict. Catherine Gregory, Nevada Mobile Home Park Owners Association, stated earlier testimony has created some misunderstandings of the lien process. Ms. Gregory stated the tenants are not ambushed and their homes are not sold without their knowledge. Ms. Gregory went on to describe the lien process. First, tenants are given a notice of lien within 45 days of default including a date certain to provide payment of rent before the next step will be taken. Next, the home cannot be sold until four months after the rent is first past due and they are provided another notice of the sale. In addition, the notices are published in the newspaper for three weeks. Lastly, Ms. Gregory stressed, there is an opposition process the tenant can go through. Ms. Gregory clarified no interest accrues on the back rent amount. Ms. Ohrenschall disputed this point. Ms. Gregory concluded the $2,500 amount in A.B. 733 would preclude a sale from ever occurring since the cap on the lien amount is $2,000.00. Mr. Manendo asked how the notices were served. Ms. Gregory stated usually by personal service from the mobile home park manager. Mr. Guild added his office, in compliance of the notice statutes under Chapter 40, personally serves notice and sends it through certified mail. Mr. Guild expounded further on the lien process. Ms. Ohrenschall defended her bill with additional comments and explanation soliciting suggestions of amendments to the bill. Chairman Humke appointed A.B. 733 to a subcommittee of Mr. Carpenter, chairman and Ms. Ohrenschall as a member, and announced the committee could deal with the bill better at a work session. SENATE BILL 434 - Makes various changes to provisions governing statutory liens. Pat Coward, Nevada Land Title Association introduced Charles Cook, legal staff for the association and legislative chairmen, stating Mr. Cook would explain the bill. Mr. Cook stated S.B. 434 addresses changes to the mechanic's lien statutes only to bring Nevada in line with sister states in terms of competitiveness and in continuity of economic investments. Mr. Cook summarized there was a section in the bill dealing with a lien if someone believes the lien is frivolous. If it is shown not to be frivolous then the party raising the objection is assessed attorneys' fees. Also, there are sections in the bill that are critical in bringing Nevada in line with sister states. For instance, there is a provision when there is a separate contract to have separate lien rights for site improvements and off-site improvements in separate buildings, etc. In addition, Mr. Cook added there is a change to bring the rate of interest that can accrue on a mechanic's lien in line with the current rate available for judgments which is a floating rate based on NRS 99.040. Lastly, there are some clarifications to the bill pertaining to release of liens. All the changes have been discussed at length with home builders, contractor's boards, and numerous others for the past several years. SENATE BILL 455 - Makes various changes governing real property. Pat Coward, Nevada Land Title Association, again introduced Mr. Charles Cook, legal counsel to the association, to explain S.B. 455. Mr. Cook stated S.B. 455 was designed to address various problems in the statutes governing real property. In particular, there have been difficulties in obtaining reconveyances from lenders which is especially abused by out-of-state lenders. The current statutes do not allow for remedies except the homeowner can file a lawsuit. They hope S.B. 455 will help eliminate the clouds placed on titles and enable reconveyances. Mr. Cook stated another provision in the bill allows for partial release of the deed of trust which parallels NRS 107.077 dealing with full releases. Mr. Cook stated currently there is no deed of trust priority and the courts in equity have awarded it over the years. The only way to conclude there is a priority is by a legal action. S.B. 455, Section 17, is designed to codify those cases and clearly define the purchase money in the deed of trust has priority over other liens. Also, Section 19 deals with hospital liens. Section 21 deals with renewal requirements for judgments. Lastly, Mr. Cook stated Sections 25 and 26 deal with escrow cancellation disputes and establishes fines for bad faith acts thereto. Section 20 deals with judgments against common names, such as "John Smith", requiring an affidavit for more specific information such as date of birth, social security number. Chairman Humke expounded on a case he had in private practice. Discussion ensued. Ms. Steel asked, with regard to hospital liens set forth on page 9 of the bill, why are they forced into filing a lawsuit at the expiration of a lien? Mr. Cook responded hospitals are rare entities with no limitation upon the length of time their lien will remain on real property and in most all others, there is a length of time in which the lien becomes invalidated and must be renewed, usually five years. Mr. Carpenter asked for clarification on page three, section nine, subsection (2). Mr. Cook explained if they give a statement regarding the loan and then follow it up with a verbal exchange, this section would just require that the verbal exchange be followed up in writing. There being no further questions or testimony on S.B. 455, Chairman Humke closed the hearing on the bill. SENATE BILL 467 - Revises provisions governing use of devices for restraining children in motor vehicles. Rota Rosaschi, Chief of Benefits and Support, Nevada State Welfare, stated the division she is in currently administers a toddler, child safety seat program. Ms. Rosaschi stated the bill on the Senate side when originally introduced was done so as a funding source for the Welfare division to continue its child safety seat program. Since that time, they have issued over 1,200 safety seats to low income families receiving public assistance. Ms. Rosaschi continued they have attempted to educate low income families on the proper use and installation of a child safety seat. In preparation of the bill, their research showed there were over 2,000 tickets issued last year under the child safety seat laws implemented approximately ten years ago. Ms. Rosaschi stated the toddler program described above assists low income families with children between the ages of one and five years to have the ability to get a safety seat. In case of an accident, the program would save the state thousands of dollars in Medicaid if the child is properly restrained. She continued S.B. 467 would provide that persons operating vehicles in the state of Nevada are eligible for a ticket if the child is not properly restrained. She stated what happens now is if the individual comes to court and demonstrates they now have seat in their possession, the court has the ability to waive the fine. Ms. Rosaschi declared the Senate removed that to disallow the waiving of these tickets; however, if it were to remain, it would set up a trust account for the child safety seat program to continue. Currently, the program is administered through a federal fund from the office of traffic safety which will expire in September, 1996. Ms. Rosaschi's prepared comments are attached hereto as (Exhibit C). Mrs. Monaghan asked out of the 2,000 tickets issued last year, how many were waived? Ms. Rosaschi stated it would appear every ticket was waived adding they have an agreement with Las Vegas whereby the program gets $5 to $10 for every ticket that is brought in. They send a check for approximately $200 every quarter so that would indicate all the tickets were waived. Mrs. Monaghan asked if there were any statistics for the amount of persons receiving a second ticket. Ms. Rosaschi stated no and sometimes the tickets are combined with the ticket for safety restraint of the adult as well. Senator Kathy Augustine, Clark County District 7, primary sponsor of the bill, provided a handout of an article regarding child restraint laws, attached hereto as (Exhibit D). Senator Augustine stated the Senate Transportation committee "gutted" the entire bill except two provisions. One, any person operating the vehicle can be cited for the violation regardless if they are the registered owner or not. The other provision requires the individual purchase a safety seat rather than rent one. What has occurred in the past is the individual rents a safety seat, shows the judge the receipt to get their violation waived, and then returns the safety seat. Upon Mrs. Monaghan's inquiry, Senator Augustine confirmed the program through the Welfare division will terminate September 30, 1996 due to lack of funding. Mrs. Monaghan asked if she was opposed to putting back in the rental provision and then have a second violation if the ticket is not waived. Senator Augustine responded if the bill is changed at all it would most likely be killed in Senate Transportation committee. Greg Harwell, California Automobile Association, stated they support S.B. 467. SENATE BILL 464 - Makes various changes to provisions governing incarceration and custody of parolee who violates condition of parole. Dennis Neilander, Principal Research Analyst, explained the bill was heard earlier with no proposed amendments. ASSEMBLYMAN ANDERSON MOVED DO PASS S.B. 464. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, SANDOVAL, STROTH, AND PERKINS WERE NOT PRESENT FOR THE VOTE. * * * * * SENATE BILL 129 - Requires cause of action for dental malpractice to be submitted to screening panel before it may be filed in district court. Chairman Humke announced the bill was heard previously and makes a request for dentists to be included in the Medical Legal Screening Panel. Mr. Anderson stated the dentists testifying on the bill made a strong case. Further Mr. Anderson suggested a sunset to the new provision which would require a review July 1, 1997 to see if there is a sufficient number of dentists participating in the process. ASSEMBLYMAN ANDERSON MOVED AMEND & DO PASS S.B. 129 WITH THE AMENDMENT FOR A SUNSET PROVISION TO JULY 1, 1997. ASSEMBLYMAN GOLDWATER SECONDED THE MOTION. Mrs. Monaghan asked why add a sunset? Mr. Anderson stated having a sunset in the bill would require the next legislative session to take an action to remove the sunset provision in order for it to become a permanent part of the statute. This would help any problems developed during those two years to be addressed. Ms. Steel declared she would not support a sunset. Further discussion ensued pertaining to the sunset provision. Mr. Schneider commented a two year sunset would be too short because the dental association would have to gear up and request something within 18 months and they would have to decide everything basically within 16 months. Ms. Stroth stated she agreed two years was too short of time; however, she was not real happy with a sunset provision. Mr. Batten commented the dentists are ready to go so two years is ample time. Mr. Carpenter stated he would favor a 1999 sunset. Mr. Anderson pointed out the original concept of the Medical Legal Screening Panel was accomplished just this way, with a sunset, then another sunset, then another, so the Legislature kept a handle on what was necessary in that regard. Mr. Anderson stated he could not support the bill without a sunset but if the feeling of the committee was 1997 was too soon, he would amend his motion to reflect, 1999. Chairman Humke brought the motion back to the floor with the sunset of 1999. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, PERKINS, AND SANDOVAL WERE NOT PRESENT FOR THE VOTE. Some discussion continued regarding the fiscal impacts on S.B. 129 and S.B. 464. SENATE BILL 299 (FIRST REPRINT) - Requires sheriff to issue permits to carry concealed firearms to certain persons. Chairman Humke announced the co-chairmen have not reached an agreement on the taking of a vote on S.B. 299 and therefore the committee would discuss the bill but no vote would be taken this date. Further, Chairman Humke stated an amendment to S.B. 299 has been brought forth by law enforcement, attached hereto as (Exhibit E). Also, the National Rifle Association has provided a writing in response to those amendments, attached hereto as (Exhibit F). Mrs. Monaghan asked if there was a fiscal note on S.B. 299. Mr. Anderson replied there would be a loss of revenue in the amount of $69,497 in 1996 to the Department of Motor Vehicles and Public Safety (DMV) to issue permits and conduct background checks, staff, etc. Chairman Humke noted the bill was amended. In the original version, the bill called for the DMV to carry out these aspects. The date of the fiscal note is March 31, 1995 and the bill was amended after that date. Therefore, the fiscal note may be inaccurate. Mr. Anderson expressed his concerns with the bill include 1) getting the course of training implemented to insure it meets a certain approved criteria; 2) the length of time someone who has been convicted of crime, misdemeanor or felony, can be refused a permit; 3) the listing of alias names on the permit; 4) the entire bill is ambiguous as to whether there is a time factor as to how long the permit remains active or whether you need to go through some sort of re-training in order to maintain your permit. Mr. Perkins stated he had some concern over the 5-year time period for re- application of a permit. Currently, the bill has a provision to require attendance or certification of the handling and use of a firearm. Most people do not use their firearm over that period of time and many do not fire the firearm to maintain accuracy and familiarity with the weapon. For example, in law enforcement this would be a requirement every couple of months. He added the law enforcement made themselves very clear during testimony and he understands the amendments brought forth by them. Upon Mr. Carpenter's inquiry, Chairman Humke clarified the renewal provisions are contained on page 5, section 9 of the bill. Mr. Perkins added the course of competence would be prescribed by the sheriff at the time the renewal of the permit comes due. Mr. Anderson asked if an individual would automatically lose their permit upon violation of any of the provisions contained in the bill. Chairman Humke pointed out on page 2, subsection 3 of the bill it states ". . . the sheriff shall deny an application or revoke a permit if he determines there is an outstanding warrant . . ." and goes on to set forth a variety of other charges or offenses. Mr. Anderson asked if they could modify drivers' licenses so when someone presents their license to a law enforcement officer, the officer would be able to determine the person could be carrying a concealed weapon thereby heading off a potential problem. Chairman Humke stated the permit which is issued from DMV must be in the person's possession any time the weapon is concealed by the person. Chairman Humke stated common sense would dictate that a person would indicate to an officer a weapon was present. Mr. Batten stated common sense may indicate that but in reality it would not happen that way. Further, he sees a possible constitutional problem because at the time an officer stops someone they do not have the automatic right to "pat down" or "stop and frisk" that person and in that regard the bill concerns him as far as a public safety issue. Chairman Humke stated the officer would have probable cause and with the passage of S.B. 299 the officer would have the right to ask if anyone in the car was carrying any weapons. Mr. Batten stated he would like a legal opinion as to the constitutionality of that issue. Further discussion ensued. Mr. Carpenter stated he would like to go through the bill and the amendments line by line and discuss and vote on the bill at a time certain. Mr. Batten asked if other amendments could be considered. Chairman Humke stated no later than tomorrow. SENATE BILL 434 - Makes various changes to provisions governing statutory liens. ASSEMBLYMAN CARPENTER MOVED DO PASS S.B. 434. ASSEMBLYMAN STROTH SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, SANDOVAL, AND SCHNEIDER WERE NOT PRESENT FOR THE VOTE. * * * * * SENATE BILL 455 - Makes various changes to provisions governing real property. ASSEMBLYMAN STEEL MOVED DO PASS S.B. 455. ASSEMBLYMAN STROTH SECONDED THE MOTION. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, SANDOVAL, AND SCHNEIDER WERE NOT PRESENT FOR THE VOTE. ASSEMBLYMAN ANDERSON ABSTAINED. * * * * * SENATE BILL 467 - Revises provisions governing use of devices for restraining children in motor vehicles. ASSEMBLYMAN ANDERSON MOVED DO PASS S.B. 467. ASSEMBLYMAN BATTEN SECONDED THE MOTION. Committee discussion was held regarding the law being unenforceable and the rental provisions contained in the bill. Mrs. Monaghan recalled from testimony that the Senate Transportation committee had no appetite for changes to the bill. Chairman Humke brought the motion back to the floor. THE MOTION CARRIED. ASSEMBLYMEN BUCKLEY, SANDOVAL, AND SCHNEIDER WERE NOT PRESENT FOR THE VOTE. Mr. Perkins informed the committee with regard to S.B. 467 the use of a safety seat for children was distinguished from the seat belt laws for adults. Mr. Anderson asked Ms. Stroth, as chairman of the subcommittee, if there were any amendments circulating on the resident agent bill. Ms. Stroth responded she should be hearing from the Secretary of State today in that regard. Ms. Steel announced there was a technical amendment to Assembly Bill 633 and inquired into the procedure for addressing that issue. Assemblyman Harrington commented after testimony on A.B. 731 earlier this date, he was approached by law enforcement who informed him they like the bill and were going to testify in favor of the same. Apparently, if the bill were to pass they would actively pursue its approval in the Senate so he would encourage the committee to do pass A.B. 731. There being no further business before the committee, the meeting was adjourned at 10:58 a.m. RESPECTFULLY SUBMITTED: Joi Davis, Committee Secretary APPROVED BY: Assemblyman Bernie Anderson, Chairman Assemblyman David E. Humke, Chairman Assembly Committee on Judiciary June 26, 1995 Page