MINUTES OF THE SENATE COMMITTEE ON JUDICIARY Sixty-eighth Session April 6, 1995 The Senate Committee on Judiciary was called to order by Chairman Mark A. James, at 8:30 a.m., on Thursday, April 6, 1995, in Room 224 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Senator Mark A. James, Chairman Senator Jon C. Porter, Vice Chairman Senator Maurice Washington Senator Mike McGinness Senator Ernest E. Adler Senator Dina Titus Senator O. C. Lee VISITING LEGISLATORS: Assemblywoman Genie Ohrenschall STAFF MEMBERS PRESENT: Allison Combs, Senior Research Analyst Lori M. Story, Committee Secretary OTHERS PRESENT: Harvey Whittemore, Lobbyist, Nevada Resort Association and RJ Reynolds Tobacco, USA Donald Kwalick, M.D., Health Officer, State of Nevada David Rice, Health Officer, Washoe County Patricia Justice, Lobbyist, Clark County C.O. Watson, Lobbyist, Nevada Association of Tobacco and Candy Wholesalers Samuel P. McMullen, Lobbyist, Reno/Sparks Convention and Visitors Authority Tom Skancke, Lobbyist, Las Vegas Convention/Visitors Authority John (Jack) Jeffreys, Lobbyist, Tobacco Institute Keith Loomis, Attorney, former Lyon County District Attorney Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association David Sarnowski, Chief Deputy Attorney General, Office of the Attorney General Bill Cavagnaro, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department Phil Galeoto, Lieutenant, Reno Police Department Randy Harris, Youth Gang Specialist, Washoe County School District John W. Riggs, Sr., Concerned Citizen Victoria Riley, Lobbyist, Nevada Trial Lawyers Association The chairman called Harvey Whittemore, Lobbyist, Nevada Resort Association, to the floor to make his presentation for a bill draft request (BDR). Mr. Whittemore explained his request is for authorization for drafting of a bill which would determine an appropriate standard for innkeepers' liability with respect to third parties, and would clarify when punitive or exemplary damages in actions involving wrongful death are justified. This standard has previously been outlined in case law, Mr. Whittemore reported, but has yet to be incorporated into statute. Additionally, Mr. Whittemore asked the bill to allow the insurability of punitive damages, except in cases dealing with egregious conduct on the part of an individual. If such intentional conduct could be shown, the insurance should not be applicable, he declared. The bill would be the "codification of an existing Craigo standard, with respect to punitive damages," but most importantly it would "protect those individuals who really have not been...whose conduct has not been ratified, those corporations or those employers whose conduct of an employee they have not ratified to be precluded from having punitive damages imposed against them." The Nevada Resort Association has worked very hard with the Nevada Trial Lawyers to come up with a plan which is a fair compromise, he reported. He asked for authorization of the bill draft as well as hearings on its merits. The chairman called for questions; there were none. He called for a motion to draft the bill as requested. SENATOR McGINNESS MOVED TO REQUEST THE BILL DRAFT AS OUTLINED. SENATOR PORTER SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR TITUS WAS ABSENT FOR THE VOTE.) ***** The chairman took an opportunity to thank Mr. Whittemore for his work on the compromise with the Nevada Trial Lawyers Association. He said he feels the bill addresses some important issues in the area of torts, noting it as an example of a cooperative effort between parties who might otherwise be at odds. SENATE BILL 316: Revises provisions governing smoking of tobacco in public buildings. The chairman moved next to open the hearing on Senate Bill (S.B.) 316. He called for the bill's proponents to take the floor. Donald Kwalick, M.D., State Health Officer, addressed the committee reading from a prepared statement (Exhibit C). Chairman James asked the witness if he was able to estimate what fiscal impact there might be, especially with his proposed amendment. Dr. Kwalick speculated the fiscal impact might result from building owners or managers having to relocate smoking areas from an entryway to some other area of the building. The chairman and the witness briefly discussed the smoking areas in the Legislature Building. The chairman could not say where the smoking area is in the building and the witness replied it is in the stairwell and near the entryways. Dr. Kwalick stated he has encountered cigarette smoke many times upon entering the building. Senator James summarized the bill's requirements as allowing only 10 percent of the building for smoking, to move smoking areas from entryways, and affirmatively disburse any smoke that might accumulate near an entryway. The witness added his proposal that it not be required to provide a smoking area, but to leave that to the discretion of the building manager. Senator Porter noted for the record that the company he is employed by is owned by British American Tobacco Company. He noted Farmer's Insurance is a fully owned subsidy of the company, but "no benefits are reaped from the company." He asked the witness about page 2, line 44 of the bill which refers to "county fair or recreation board." He wondered why there is a need to include county fair and recreation board specifically. Dr. Kwalick replied he could not say with surety why it was added, but speculated there have been problems at the convention center. The next speaker in favor of the bill was Dave Rice, District Health Officer, Washoe County. Mr. Rice reiterated the point made by Dr. Kwalick that the bill is not an issue of smokers' rights, but rather an very serious health issue. He told the committee of the 5 years he has served as health officer, and the very strong program in Washoe County to deal with air quality management. He said this sends a message of high concern for outdoor air environment, and stated his desire that the state focus attention on indoor air pollution as well. Patricia Justice, Lobbyist, Clark County spoke noting the county's support for the bill with one caveat dealing with the airport. She told the committee it would be very difficult to allow only one smoking section in the McCarren airport. The airport would request the capacity to provide small, glass enclosed smoking areas at several locations throughout the airport, not to exceed the 10 percent space limit. She suggested it might be possible to exempt airports from the one area requirement, or to allow them to include a certain number of areas without exceeding the 10 percent limit. The chairman next called for opponents to the measure. C.O. Watson, Lobbyist, Nevada Association of Tobacco and Candy Wholesalers, was first to speak. Mr. Watson questioned whether the bill dispenses with common sense when asking for only one smoking area in a 5,000 square foot building, and only one area for a multiple story building. Also, he questioned who has the right to determine the smoking policy for the building, the lessee or the owner of the building. Samuel P. McMullen, Lobbyist, Reno/Sparks Convention and Visitors Authority and Tom Skancke, Lobbyist, Las Vegas Convention/Visitors Authority (the Authority), told the committee the Authority will be directly affected by the language referencing county fair and recreational boards. Mr. McMullen stated he had checked and found the Authority is in compliance with the language of the bill. He stated the policy that has been in place at the Reno Convention Center for the past 13 years has received no complaints. He explained the layout of the center and how smoking areas are designated in spaces that are not useable for displays or exhibits. The witness told the committee the Authority's concern is they may be forced to use space that is rentable for a smoking area, thus impacting the Authority financially. Mr. McMullen opined the current laws work quite well. He added the Authority allows events to set smoking restrictions that are much more restrictive than law allows. Mr. Skancke echoed the comments of Mr. McMullen, noting the Law Vegas facility has been open for 10 years, and they have received no complaints as to smoking either. He told the committee of the smoking policy and areas in the facility and commented there are frequently shows that allow no smoking at all. Harvey Whittemore, Lobbyist, RJ Reynolds Tobacco Company, USA, along with John (Jack) Jeffreys, Lobbyist, Tobacco Institute, again addressed the committee. He opined S.B. 316 attempts to revisit issues that have been previously addressed by the Legislature. He stated it is his feeling the present laws provides a good balance between health and comfort concerns and the desire to allow some smoking in public buildings. This bill makes only two changes: one, to clarify that county fairs and recreational facilities are public buildings, and two, to limit the amount of the space required to 10 percent of the building. He wondered if there will arise a need to continually consider needs for exception to this space limitation. He pointed out the current laws allows discretion on the part of the building manager to make these decisions as necessary. Mr. Whittemore stated his belief there are serious practical problems with the bill and requested the committee "not to process the legislation." Mr. Jeffreys told the committee he feels Mr. Whittemore covered the points well and he would only reiterate his points. Mr. Jeffreys offered the airport and the convention center as examples of buildings that are so spread out over huge areas as to make it completely impractical to have only one designated smoking area. He added it is important to accommodate those different groups that visit the state according to their particular needs. There was not further testimony and the chairman closed the hearing on S.B. 316. SENATE BILL 335: Prohibits person from having actual physical possession of firearm while under influence of intoxicating liquor or controlled substance. The next bill to be heard was S.B. 335. The chairman called on Senator Adler who had worked on the bill to offer some introduction. Senator Adler explained that Keith Loomis who is the former district attorney of Lyon County, requested a misdemeanor offense for being intoxicated and in the possession of a firearm. The senator noted the bill was not drafted as requested (to emulate the drunk driving law) and would require some amendment. The bill drafters incorporated all the penalties of the drunk driving law, but failed to incorporate the blood alcohol level requirements. Keith Loomis, Attorney, former Lyon County District Attorney, told the committee briefly of his background as a prosecutor and then explained his reasons for requesting this bill. He told he had been surveyed by the Legislators in his area as what improvements might be made in the criminal justice area. He answered the question with this proposal, he said, but did not hear further regarding it until he read in the paper of its introduction in the Senate. He was subsequently notified the bill was one he requested and asked to come speak regarding its value. Mr. Loomis offered the experience of Lyon County's "explosion of violent crimes over the last 4 years" which could be attributed to the growth of the county. He opined the bill would probably best address issues of rural counties because it is probably more common for citizens to openly carry firearms in the normal course of a day in a rural area than it is in an urban area. Mr. Loomis reported Lyon County had five murders during the 4 years he was district attorney, and three of them "were the direct result of people that were in possession of weapons, that as a result of losing their temper... used the weapon while they were under the influence of alcohol and took a life." He offered the impact of the bill might be a number of these people would pay attention to a law and would not take their weapons with them when drinking. Mr. Loomis suggested an amendment to reflect a clear definition of being under the influence, and he offered one to the committee (Exhibit D) which uses terms requiring the ability to pass a field sobriety test like those administered for drivers or having a blood alcohol level in excess of .10 percent by weight. He further explained under which circumstances the bill is not intended to apply such as having a gun in the gun cabinet, the "guns in a vehicle or leaning against a tree at a hunting camp." Senator Adler further explained the bill, as drafted contains a lot of enhancing penalties which were not really intended when the bill was requested. The request was really meant to define what intoxication standard would apply and to provide some misdemeanor penalty, not those outlined in the drunk driving statutes. Senator James pointed out the reason for the drunk driving laws was because drinking causes impairment which could impact safe driving, result in accidents, but he opined the use and control of a gun might not be impacted the same way with intoxication. He further noted alcohol might not reduce their motor skills, but their judgement and impulse control would be affected. He asked if Mr. Loomis considered the differences when proposing sobriety tests. Mr. Loomis agreed with the chairman adding the field sobriety test "is a divided attention test." The question of judgement applies in both cases, he declared, even more so in the case of possession of a firearm. He emphasized that police officers are well trained in how to give a field sobriety test, and they can learn much about the judgement of the individual through the test. It is for these reasons he proposes the field sobriety test, he stated. Ben Graham, Chief Deputy, Clark County District Attorney, Legislative Representative, Nevada District Attorneys Association, spoke next on the bill. He offered information rather than support or opposition to the bill. He stated the Nevaa District Attorneys Association supports the effort and the concept, but they were not involved in the drafting. Mr. Graham surmised the crucial part of the bill is the requirement for actual possession of the firearm, rather than "constructive" possession. He agreed there is a need to remove the escalating penalties that are in the bill, and add in the field sobriety test and blood alcohol (B.A.) level standard. Finally, he voiced his opinion as to the soundness of the concept, noting people do and say things under the influence of alcohol that they would not otherwise do or say. Senator Adler queried whether Clark County has a similar problem or if it is really only a rural question. Mr. Graham offered the biggest problem is between corrections officers who "get in little tiffs at ... pub" and when the police arrive they find them faced off with weapons in hand. Senator Adler reminded of the old west tradition of hanging weapons at the door, and offered this is a similar concept. Senator Lee wondered if the intoxication would be a defense against causing death or bodily harm. Mr. Graham replied, "from a practical standpoint, ...a high enough B.A. goes to diminish the mental capacity." He suggested the law enforcement personnel in the audience might offer some insight. Senator James declared the bill is one of those which inspire support, however, he finds it difficult to understand a real need for it. This should be common sense, he opined, and people should know if they have been drinking they should not be handling a firearm. Ben Graham pointed out there is a provision in the statutes that discuss being in control of a vehicle while under the influence, even if you are not moving. This bill is really similar to that provision he maintained. David Sarnowski, Chief Deputy Attorney General, Office of the Attorney General, took the floor and offered the committee suggestions on how to improve the bill. He suggested if the committee's intent is to discourage possessing a firearm while intoxicated, they might require the weapon be forfeited upon a second or subsequent offense. Even with his limited experience with firearms, Mr. Sarnowski asserted it is outside his ability to imagine why any person who has been drinking should handle a gun. Senator Porter asked the officers in the audience (Bill Cavagnaro, Lieutenant, Legislative Liaison, Las Vegas Metropolitan Police Department and Phil Galeoto, Lieutenant, Reno Police Department) whether this bill might address instances of unnecessary nuisance calls to law enforcement where there are people "abusing a weapon but you don't have any controls, or maybe there is something else to address those points of inebriation." Lt. Cavagnaro concluded if this bill is viewed as a means to "take somebody off the street that might be intoxicated with a weapon," it might work as the senator suggested. There are people who do drink and carry weapons, and most of the domestic and family disturbance calls involve alcohol and frequently weapons, he said. The witness stated his concerns with the bill have been addressed through the proposed amendments. Lt. Cavagnaro admitted his response might not answer the senator's question. Senator Porter concurred, but noted the response added to the discussion adding to his understanding. Senator Porter recapped the reply as saying the bill is not something law enforcement really needs. The lieutenant replied the law would be "handy in a lot of situations, because you could immediately take the person who was drunk with the weapon and remove them from the [situation]." Lt. Galeoto offered his opinion the bill would provide another tool. He spoke of times long gone when the Reno Police Department confiscated guns from intoxicated individuals, more as a service than anything else. This is no longer done, he said, because there is a need for common sense among the citizenry, and if the time is spent taking guns from citizens, the police will have no time to do anything else. Additionally, he stated he is uncomfortable with setting a standard in this area. Chairman James speculated it would be necessary to sweep the local "watering hole" in order to assure that someone who is intoxicated is not in possession of a firearm. Lt. Cavagnaro agreed. Senator Lee commented it was his observation there is a movement to allow more people to carry concealed weapons, and just as it became necessary to legislate drunk driving when cars became prevalent, he wondered if there might be good reason for a law such as the one proposed. The next speaker addressed the committee in opposition to the bill. John W. Riggs, Sr., Citizen, observed the intent of the bill was not encompassed as it is written. He declared he knows what the committee is seeking with this bill, but it requires some redrafting to reach the goal. He objected to the severity of the sanctions for successive violations. Further he offered examples of situations that could be misconstrued by police officers; such as hunters with their handguns on their belts standing around a campfire at the end of the day, or an individual, who has a concealed weapon permit, at home with a before-dinner cocktail. Under the letter of the law, either of these situations could result in a criminal conviction. Mr. Riggs opined the law, as written, is not well thought out or likely to be effective for its intent. If it is redrafted as suggested by Mr. Loomis and Senator Adler, Mr. Riggs speculated it would be acceptable. At this point the chairman concluded it would be best to turn the bill over to a subcommittee made up of Senator Adler and Senator Porter. He asked they work with the representatives of the various interests to revamp it into a workable bill. He closed the hearing on S.B. 335. SENATE BILL 284: Clarifies provisions governing representation of certain entities in small claims court. While waiting for the arrival of Assemblywoman Ohrenschall, the chairman opened the work session on S.B. 284. He noted the only question brought up was "the notion of an agent representing a corporation." He stated his support for this option. Victoria Riley, Lobbyist, Nevada Trial Lawyers Association, spoke telling the committee of the interested parties' concerns. She stated the breadth of the term agent, which goes beyond the needs of the bills' proponent. She requested the bill be amended to use the word representative, rather than agent, because it does not appear to have the same broad legal applications that agent does. There were no other changes proposed and the chairman called for a motion to amend and do pass S.B. 284. SENATOR LEE MOVED TO AMEND AND DO PASS S.B. 284. SENATOR McGINNESS SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** The next bill to come to the work session was S.B. 316. Senator James noted the Senate Committee on Judiciary had worked very hard during the previous session to "come up with a good second-hand smoking law for the state." He opined that testimony before the committee during this hearing seems to show the current bill is working well and allows some flexibility. He went to far as to state this bill is not going to be a good one, no matter how hard it is worked on. Senator Titus agreed with the chairman that the rule "any bill can be a good bill if you work hard enough at it," is not a good rule. She stated she prefers the old rule which requires a person prove why a bill should be passed, not why the current rule which requires proof as to why a bill should be killed. SENATOR TITUS MOVED TO INDEFINITELY POSTPONE S.B. 316. SENATOR LEE SECONDED THE MOTION. THE MOTION CARRIED. (SENATOR PORTER ABSTAINED FROM THE VOTE. SENATOR ADLER WAS ABSENT FOR THE VOTE.) ***** ASSEMBLY BILL 125: Authorizes juvenile court to place certain children under supervision of public agency to work on projects to eradicate graffiti. Senator James next opened the hearing on Assembly Bill (A.B.) 125. Assemblywoman Genie Ohrenschall presented the bill to the committee. Ms. Ohrenschall explained the basics of the bill including the primary purpose of the bill, which is the eradication of graffiti. She reported there was much testimony before the Assembly from construction contractors, real estate agents, and others, regarding the financial impacts from graffiti. She pointed out this cost also goes to private property owners and senior citizens who are unable to clean up the graffiti themselves. She referred to Exhibit E, a letter from the Pardee Construction Company in support of the bill. The witness pointed out that most graffiti is not gang graffiti, but it still has the same fear producing effect. It is assumed by the public that graffiti signals the gang takeover of a neighborhood. Ms. Ohrenschall added the bill offers one other benefit, that is it provides an additional punishment for juveniles who are subject to the jurisdiction of the juvenile court. This punishment, she reported, is constructive for society, and can instill a sense of responsibility in the young people. The assemblywoman spoke to the glamor aspect of graffiti. This glamour aspect is the association many young people make between graffiti and gang membership. Ms. Ohrenschall speculated if young people, even those who have not actually created the graffiti, are made to clean it up, there will be much less appreciation for those who do graffiti. She noted it is very difficult to make sure that those who do the graffiti are the ones who clean it up. She opined that if young people are made to clean up the graffiti of others, they will be less likely to idealize it or to encourage others to do it. Senator Washington stated he does not believe children and teenagers think as Ms. Ohrenschall stated, (i.e., negative peer pressure will reduce graffiti). The assemblywoman stated it is her feeling this negative peer pressure will work. This is evidenced, she said, by the presence of "tagger" graffiti-graffiti put up by gang member "wannabes." If young people know the next time they get caught missing curfew they will have to go out and clear up graffiti, they are less likely to encourage others to do it. Senator James offered his support for the bill and its innovative nature, noting graffiti is a problem even in his neighborhood. He expressed his view that the people who do graffiti should be caught and made to "scrub it off, no painting over it, scrub it off, then repaint the wall." The chairman asked the witness who requested that parents be required to pay for industrial insurance needed so the children can go to work. Ms. Ohrenschall replied it is the suggestion of one of the Assembly Committee on Judiciary members. The senator said this is an added enhancement because it puts some responsibility on the parents, as well. Ms. Ohrenschall offered it might also be an incentive to the child to work carefully, so their parents might recoup some of their money. Lt. Galeoto next spoke noting the assemblywoman had covered most of what he had intended to say. He stated the Reno Police Department strongly supports the bill for several reasons. First, the Reno Police Department's gang unit and the Norther Nevada Youth Gang Task Force have used this method for some time. These program are very successful, he reported, with a strong impact. There is flexibility built into the bill, he explained, noting the requirement for industrial insurance allows the judge discretion as to where to "put some of these kids." He opined the program would increase the sense of accountability among the youths. There ensued some discussion as to the terminology of gangs and gang graffiti. The witness explained that gang members and taggers are different. Taggers are gangster wannabes or young people who simply want the same kind of recognition that graffiti seems to get gang members, he reported. Lt. Galeoto told the committee of a twice yearly survey done in the City of Reno, and this survey revealed that gang activity is the number one fear for the citizens. He told the committee how difficult it is to catch graffiti writers, even when they are seen in action. Senator Porter told the witness of the Boulder City Juvenile Conference Committee where youths must appear if they are involved in criminal activities. He reported how effective this group is and how much the youths gain from a community centered program. Senator Washington took an opportunity to restate his stand on the bill. He stated he is not at all opposed to the measure, he is simply concerned that it act as a real deterrent. Lt. Galeoto reiterated the process of the program, with all youths in trouble facing a possibility of having to clean up graffiti, either their own or that created by their peers. This will definitely increase the peer pressure to not do graffiti he emphasized. The next speaker was Randy Harris, Youth Gang Specialist, Washoe County School District, who concurred with everything offered by the assemblywoman and Lt. Galeoto. He stated he has no doubt the program can be a deterrent. He wanted to add that tagging is not just a harmless copycat activity, but rather taggers are evolving into youth gangs, carrying guns, and getting involved in the gang-type violence that everyone fears. Mr. Harris offered some examples of how prolific gangs and their graffiti are becoming. He said the gangs' graffiti sends a message of "we are here and we're taking over." The bill will send a different message, "No, you are not taking over." Senator Porter asked if the present increase of graffiti is a recurrence of a period 20 or so years ago when graffiti was also very prevalent. He wondered why it lost its glamour then, and why it is back today. Mr. Harris replied it is something exciting to do, that "is kind of a victimless crime." He opined there has been no real penalty for creating graffiti. The chairman thanked the assemblywoman and other witnesses for their time and called for a motion to do pass the bill. SENATOR LEE MOVED TO DO PASS A.B. 125. SENATOR WASHINGTON SECONDED THE MOTION. THE BILL CARRIED UNANIMOUSLY. ***** There being no further business before the committee, the hearing was adjourned at 10:20 a.m. RESPECTFULLY SUBMITTED: Lori M. Story, Committee Secretary APPROVED BY: Senator Mark A. James, Chairman DATE: Senate Committee on Judiciary April 6, 1995 Page