MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
Seventy-Second Session
March 4, 2003
The Committee on Judiciarywas called to order at 8:13 a.m. on Tuesday, March 4, 2003, by Vice Chairman John Oceguera. Chairman Bernie Anderson presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
COMMITTEE MEMBERS PRESENT:
Mr. Bernie Anderson, Chairman
Mr. John Oceguera, Vice Chairman
Mrs. Sharron Angle
Mr. David Brown
Ms. Barbara Buckley
Mr. John C. Carpenter
Mr. Jerry D. Claborn
Mr. Marcus Conklin
Mr. Jason Geddes
Mr. Don Gustavson
Mr. William Horne
Mr. Garn Mabey
Mr. Harry Mortenson
Mr. Rod Sherer
COMMITTEE MEMBERS ABSENT:
Ms. Genie Ohrenschall (excused)
GUEST LEGISLATORS PRESENT:
Assemblywoman Peggy Pierce, District No. 3, Clark County
STAFF MEMBERS PRESENT:
Allison Combs, Committee Policy Analyst
Risa B. Lang, Committee Counsel
Carrie Lee, Committee Secretary
OTHERS PRESENT:
Karen Kavanau, representing Nevada Judges Association
Karen Coyne, City of Las Vegas
John Albrecht, Deputy Attorney General, Office of the Attorney General
Lieutenant Stan Olsen, Nevada Sheriffs and Chiefs Association, and Las Vegas Metropolitan Police Department
Kathy Bartosz, Juvenile Justice Programs Office
Peter Krueger, Nevada Petroleum Marketers Convenience Store Association
Paul Enos, representing Retail Association of Nevada
Colin Haynes, Las Vegas Metropolitan Police Department
Ben Graham, Nevada District Attorneys’ Association
Bonnie Parnell, representing National Alzheimer’s Association
Thelma Clark, Nevada Silver Haired Legislative Forum
Kristin Erickson, Washoe County District Attorney’s Office
Vice Chairman Oceguera:
Good morning, ladies, and gentlemen. Let’s bring the Assembly Committee on Judiciary to order. [Roll called]. This morning we’re going to start out with A.B. 98. Who’s going to present that?
Assembly Bill 98: Authorizes governing body of city to create department of alternative sentencing. (BDR 16-609)
Karen Kavanau, representing Nevada Judges Association:
[Introduced herself.] The author of this bill, Judge Larry Sage from Sparks Municipal Court, couldn’t make this morning’s hearing, so I get to try and sub in for him. The intent of this bill is simply to allow a city, as well as a county, to establish an alternative sentencing department. The bill is quite lengthy because it defines a lot of things that are undefined. For example, it talks about the department and its duties. It talks about the officers of that department, the chief, the assistant chief, their duties, [and] their level of authority. The bill goes on to talk about what happens in certain instances to a probationer who’s under the supervision of the alternative sentencing department. The intent is simply to add the authority for a governing body of a city to establish an alternative sentencing department. Thank you.
Vice Chairman Oceguera:
That was a pretty quick explanation. Does anyone have any questions for Ms. Kavanau? Mr. Brown.
Assemblyman Brown:
Looking over this earlier, I see at Section 18, court means justice’s court; that would be the county. I know in the early section it discusses court and means municipal court. Is this in existence, then, with the counties?
Karen Kavanau:
It’s my understanding that there are county alternative sentencing departments in existence today. I did note the same wording in Section 18. I think what they’re trying to do is, say, in a judge’s court, I don’t think that in this sentence they’re limiting it in any way. We might ask Ms. Lang if she could comment on that, because I just checked with her to ask her the same question.
Risa B. Lang, Committee Counsel:
Thank you. I think that in Section 18 we’re talking about the alternative sentencing programs in the counties now, so they are referring to the justice’s courts, whereas the new program is for the cities and they would take place in the municipal courts. I think that’s what the distinction is there.
Assemblyman Brown:
So currently, we do have it in the justice courts?
Karen Kavanau:
Yes, sir, we do.
Assemblyman Brown:
Section 14 deals with taking into custody if they have violated subsection 3, “After making an arrest, the chief, assistant or other peace officer shall immediately notify the sentencing court of the arrest…” I was interested in the procedure. I guess if they have probable cause the chief or the chief’s assistant can just take that person into custody; there’s no need for a warrant. Is that the standard right now in all other situations with [the Division of] Parole and Probation, do you know?
Karen Kavanau:
I’m sorry; I cannot answer that question. I do not have that information but I could get it for you.
Assemblyman Brown:
I’d be interested. I wondered for instance, in that subsection 3 of Section 14, the “…officer shall immediately notify the sentencing court of the arrest,…and shall submit a written report setting forth the act that constituted a violation…” I imagine they take them generally into custody and then the person is sitting there, I would imagine, in lockup without a warrant. It seems there…I just wonder if there are some due process issues where somebody can just kind of yank them off the street. But perhaps, that’s the current practice. I know as a probationer that the person has some limitations on their lifestyle and so, maybe that’s just part of the program.
Vice Chairman Oceguera:
Mr. Brown, I think that Ms. Lang would like to try to clear that up a little bit for us. [Mr. Brown agreed.]
Risa Lang:
All of these provisions are copied directly out of [Nevada Revised Statutes NRS] 211A, so that is the current practice in the alternative sentencing departments that exist today.
Assemblywoman Buckley:
I was wondering if you could just comment a little bit more on the need for this bill. City offenses, misdemeanors, it just seems like creating a whole other department and bureaucracy at a time when we’re in a budget crisis and aren’t starting a lot of brand-new programs. I’m just wondering about the timing and the need.
Karen Kavanau:
I really can’t respond to that except that I read this as enabling language, not mandatory, so I think it would be up to the governing body to decide whether they could afford it, or not. I think the intent is simply to mirror what is happening in the counties.
Assemblywoman Buckley:
Thank you. Maybe we could get, if we’re getting some information back, maybe we could also get that, what cities are considering this, what the proposed costs are, what they feel the need is; that would be helpful. Thank you.
Karen Coyne, City of Las Vegas:
Good morning, Mr. Vice Chair, Mr. Chair, and Committee members. [Introduced herself.] I was looking for a clarification, just to ensure that this was not going to affect any of the existing programs in municipal court alternative sentencing because we have had successful programs in place within the City of Las Vegas Municipal Court system since 1975. I, too, had the question as to the need to create different provisions, so I guess the only thing I’d like to go on record saying is that I’d be grateful if we could just clarify, and maybe the intent of the bill is as was stated, that this is not to change any existing programs, but just to enable those who don’t have them to do so. Just for some information, during the calendar year of 2002, we referred out of municipal court 3,688 persons to alternative sentencing programs. It’s very successful.
Vice Chairman Oceguera:
Mr. Chairman?
Chairman Anderson:
Thank you, Mr. Vice Chair. How did you go about, how did you fund those particular kinds of programs?
Karen Coyne:
Sir, I apologize. I do not have the answer for that. The alternative sentencing program’s been in place since 1975 and I’m not exactly sure what the funding mechanism is. I can certainly obtain that and get back with you.
Chairman Anderson:
Thank you.
Assemblyman Brown:
This maybe goes to Ms. Buckley’s question a little bit. I just am unfamiliar with the topic, generally speaking. So you’ve had this program for quite some time. What kind of violations are being sent, what is the nature of the probation and supervision? Is it usually and always in their home, or is there a supervised work and community service? If you could help me a little bit with that, I would be much appreciative.
Karen Coyne:
All of the above, actually. We do have house arrests [and] there are court programs. One of probably the most notable is the one for domestic violence. We offer educational classes to offenders to help them redirect some of their anger and enhance their social skills in dealing with some anger management issues. There are also DUI [driving under the influence] courses, traffic court; there are a variety of programs. I can get you a list.
Assemblyman Brown:
That’d be great.
Assemblyman Carpenter:
I imagine, I don’t know, but under Section 20 of this proposed bill, it says, “If the county in which a municipal court is situated does not have a department of alternative sentencing, the municipal court may contract with a qualified person to administer a program…” That’s probably the way Las Vegas is doing it, and so I’m wondering why other cities that may want to set up this program, why they don’t do it under the program rather than go to a whole new [system]. Maybe that isn’t a question. Maybe you’re the wrong person to ask, but I think it did provide before that a city could do this.
Karen Coyne:
Our program is actually an in-house program. We operate it with city employees just to clarify the contractual issue that you raised. I don’t know if that’s helpful.
Assemblyman Carpenter:
Is there another section of the law that specifically, where Las Vegas can do this but nobody else? They had to have a way to do it.
Karen Coyne:
As far as I am aware, I believe that this was established through the judges within the municipal court system.
Vice Chairman Oceguera:
I think Ms. Lang can help us again.
Risa Lang:
I’m not sure if this answers the question, but currently in [NRS] 211A, it deals with all misdemeanors, which would be both misdemeanors, and in municipal court and justice’s court so the department of alternative sentencing within a county would actually handle the misdemeanors going through municipal court and justice’s court, which is, I’m assuming, how it’s working in Las Vegas. What this bill does, it separates out the municipal court violations so that you can have a department of alternative sentencing that just handles violations within the city. In Section 20 like you identified, it would allow them to go through the department of alternative sentencing of the county in cities where they don’t have a department established. So it just kind of separates it out, so there’s two separate programs. Does that help?
Assemblyman Carpenter:
Yes, thank you. I think we’re getting a little more clarification, but I guess we really don’t have exactly what the need is if other places can do it.
Vice Chairman Oceguera:
Also not speaking but checked on A.B. 98, Nicholas Matteis; I don’t see him out there, actually. Anyone speaking against A.B. 98? Any other questions from the Committee on A.B. 98? Seeing none, I close the hearing on A.B. 98.
Chairman Anderson:
Thank you, Mr. Vice Chair. Let’s turn our attention to Assembly Bill 108, which provides for criminal penalties for selling and distributing alcoholic beverages. Good to see you, sir.
Assembly Bill 108: Provides that Attorney General has concurrent jurisdiction with certain agencies to investigate and prosecute sale or distribution of alcoholic beverage to person under 21 years of age. (BDR 15-436)
John Albrecht, Deputy Attorney General, Office of the Attorney General:
Good morning, everyone. [Introduced himself.] The bill, A.B. 108, I draw your attention to subsection 4, which is actually on the back of my copy. Currently, state law authorizes the local law enforcement agencies to enforce our state law that prohibits the sale of alcohol to minors. The Nevada Office of Juvenile Justice Programs has a grant program where they distribute money to local law enforcement agencies to discourage alcohol use by minors in a number of ways, including the conduction of compliance checks on retail stores. Many local law enforcement agencies conduct these alcohol compliance checks; some are hesitant to do so, and this bill would give the Attorney General concurrent authority to conduct alcohol compliance checks at those retail stores. In those cases where local law enforcement, for whatever reason, declined to conduct them, we would ask that the Office of Juvenile Justice Programs give the state Attorney General’s Office the funding that would otherwise go to that agency.
Right now, many of you are aware, we conduct tobacco compliance checks on the same stores. We conduct probably over 4500 in a year, so we’re very experienced in the conducting of compliance checks in this way. To clarify, we would only conduct compliance checks in a jurisdiction if the local law enforcement agency declined to conduct them. To clarify that, there’s going to be an amendment offered by the Nevada Sheriffs and Chiefs Association, and the Attorney General’s Office doesn’t oppose that amendment.
Chairman Anderson:
Mr. Albrecht, has the Attorney General’s Office had problems in this area in the past in trying to get compliance from the local law enforcement?
John Albrecht:
We don’t distribute the money. What happens is the Office of Juvenile Justice Programs calls me up, probably every 6 to 12 months, and doesn’t say a local law enforcement agency declines; they say that they’re hesitant to do that and would we possibly consider doing them. And the answer has to be we wouldn’t do them because we don’t have the authority. This would just give us the authority if all of these other facts would fall into place.
Chairman Anderson:
So the Committee recognizes what’s going to take place here, if you’re going to send a young person out, the local law enforcement agency finds somebody, usually in one of their programs, or even maybe a sworn officer who has a particularly youthful appearance, but somebody clearly under the age of 21, goes out and purchases alcohol as part of almost a sting operation. I know they just did a huge one in Reno this last week. The local officer, then, has the opportunity to cite those stores, usually the clerk who has the individual responsibility. Are you telling me that in some jurisdictions, they do not have the ability to do that, because either they don’t have a youthful person who is willing to do that or there’s a difficulty finding somebody in the local community who’s not well-known? In a small town here in Nevada, you probably would know every kid who’s over 21 years of age. Definitely the ones that are in high school; your kids are probably going to school with them. I’m trying to figure out why the Attorney General wants, other than the functionality of dollars.
John Albrecht:
There may be a number of reasons why a local law enforcement agency declines to conduct compliance checks, and I think all of them would be good, sound reasons. There may be that they have other priorities and this is a low priority. I also want to emphasize that the alcohol compliance check program is part of a community’s activities to discourage under-age alcohol use. It’s everything that goes on in that community: the schools, the churches, the non‑profit organizations. This is just one part of it, and what we want to do is just make us available if a local agency wants us to; we’re available.
Chairman Anderson:
I’m still in a quandary as to what you’re going to do that the local agency cannot do with this new…other than the dollars that you say are coming along here. I’m trying to figure out why and how this is going to complement, or hurt, a local law enforcement agency. Mr. Olsen.
Lieutenant Stan Olsen, Nevada Sheriffs and Chiefs Association, and Las Vegas Metropolitan Police Department:
Thank you, Mr. Chairman, Committee Members. [Introduced himself.] One of the issues that came up is last year there was a case in Pershing County where they did a sting. They used a person who was significantly altered to look older than he was. It went to the [Nevada] Supreme Court. The [Nevada] Supreme Court struck down part of the existing law. We are trying to fix that now on the other side with Senate Bill 91. It has not come out of committee yet; it’s due to go to work session.
So after that, some of the agencies, particularly in the rurals [counties], were a little hesitant in moving forward until that particular issue was addressed. Again, as I stated, we’re trying to address it now. The other thing is that there do come times when the agencies have the time to do it; something’s going on in a particular community. The AG’s [Attorney General] Office may want to do it, which is why we’re not opposing the bill with this amendment that I have submitted here. Most of the rurals were concerned that they did not have first right of refusal on these type of enforcement activities, and in talking with the AG’s office, we came up with an agreement with this particular language. I hope that answers your question as far as the hesitation.
Chairman Anderson:
We haven’t taken up your amendment yet, so now that you’re here, Mr. Olsen, on behalf of the Nevada Sheriffs and Chiefs Association, we’ll accept the amendment, which has already been distributed [(Exhibit C)]. “The Attorney General shall not exceed his authority under this subsection in any jurisdiction unless the appropriated law enforcement agency files with the Attorney General a declaration permitting the Attorney General to do so.” In other words, the Attorney General only gets to come in if the local law enforcement agency invites them or says it’s OK, is that what you’re saying?
Stan Olsen:
Yes, that’s correct. If they want to do a compliance check and a local agency, whatever agency that is, doesn’t have the time to do it, then they would file that it’s OK [and] go ahead and do it.
Chairman Anderson:
I’m trying to imagine, in my own mind, why the local sheriff agency, as you’ve indicated, does not want to have one of these compliance checks because he doesn’t have the resources to do it, he doesn’t have the ability to do it, because of personnel, somebody with an older appearance who is indeed under 21 years of age. I guess, because there’s other activity going on at that particular location that may be more criminal in nature, they don’t want to have their investigation there to be disrupted? What happens if the Attorney General recognizes that there’s a problem in a community and the local sheriff or police decide that they don’t want it, but don’t give a stated reason?
Stan Olsen:
I would, and I’m no attorney, but I would guess that that would indicate some possible corruption and it can be addressed through a different direction. I can’t see that happening. The sheriffs in all the counties have been actively involved in this; they’re given grant money. If I recall, in the case of the [Las Vegas] Metropolitan Police Department, I think it’s $5,800 a year.
Kathy Bartosz, Juvenile Justice Programs Office:
[Speaking from the audience] It’s $37,000 a year.
Stan Olsen:
Excuse me; it’s $37,000. After these types of operations, that doesn’t go a long way. We do them ourselves, also outside of that grant money. Again, there’s not a lot of money, but then there’s also not a lot of resources, as you stated. Whether the resources are law enforcement or the resources are an underage person that isn’t known in the community, they both can be a factor. But most of the sheriff’s agencies actively take part in this based on the resources available at the time and what’s going on in the community.
Chairman Anderson:
Questions for Mr. Albrecht or Lt. Olsen? Who wrote the amendment, Mr. Olsen?
Stan Olsen:
I and the Attorney General’s Office together crafted it.
Chairman Anderson:
So, we’ll make sure that the bill drafter cleans it up and polishes it. Questions from the Committee? Mr. Carpenter.
Assemblyman Carpenter:
Yes, thank you, Mr. Chairman. The statute that you want to amend talks about if you’re selling or giving or whatever; it doesn’t say anything about sting operations. Maybe that’s part of it. In tobacco, doesn’t the Attorney General’s Office do all of them? I think there’s a little difference in the tobacco and the alcohol. Tobacco you only have to be 18 to buy, if I remember right, and here the age to buy alcohol is 21. I may be wrong, but this all talks about that you can’t sell it to someone. I thought that you were talking about that if somebody, in fact, did sell it to an underage person, someone under 21, this talked about the prosecution of that person if the district attorney didn’t want to prosecute [the seller] then the Attorney General could come in. I do not understand how the sting operation suddenly came into this part of the law. Maybe I’m reading it wrong.
Chairman Anderson:
It’s the Chairman’s problem. Mr. Albrecht?
John Albrecht:
The tobacco law was amended back in 1995 and created whole sections on the procedures that had to be followed by the Attorney General, or any other law enforcement agency, that conducted a compliance check regarding the sale of tobacco to someone under 18. There’s no parallel law that describes the procedure. All there is is the law that says it’s against the law to sell or distribute to someone under 21. You could do this by creating another section that would just say the Attorney General has concurrent authority over [NRS] 202.055. You could create another section; I was just trying to make it easier. It may be clearer if you want to create another section, but there’s no procedure in the alcohol law that describes how we conduct a compliance check. We are tacking it onto the prohibition on the sale or distribution of alcohol, but there is no other law that describes how the compliance check would be conducted. We do have that in the sale of tobacco to underage people.
Assemblyman Carpenter:
I think that’s my concern. In the tobacco situation, there’s a whole procedure of who can do it and who can’t do it and how they have to look and the whole nine yards. Basically, it gets down that the poor clerk is the one that’s going to bear the brunt of it. That’s what I’m concerned about; what kind of a procedure are you going to do? Because when you’re conducting these sting operations, I think you have to have a set of rules that you have to follow so that people will know what to expect, and under this, I just don’t see any, so that’s what really concerns me.
John Albrecht:
All I can say is I agree with you. As a practical matter, if these were given to the Attorney General’s Office, we would follow, as close as we could, our tobacco compliance check protocol because we’re law enforcement and we do things the same way over and over and over. Not because the law would say so, but just because that’s the way we would do things.
Chairman Anderson:
Well, Lieutenant, apparently we have somebody who’s more knowledgeable about this than even you; apparently there’s more of a problem than we anticipate with the particular bill than just broadening the question to include the Attorney General’s Office. I don’t think we have a problem with broadening. And reading the statute, as it currently exists, the $500 fine here is really directed toward the institution, the company that has to establish a policy. It seems to me that we kind of modified this in terms of the Internet sale of alcohol, which we were terribly concerned about here a few sessions ago. Now, by adding the [amendment] without really hitting the bone of the problem, Mr. Olsen, am I to understand, then, that the Senate bill is going to deal with this?
Stan Olsen:
Mr. Chairman, Senate Bill 91 deals with the specific law, and what it’s trying to deal with on A.B. 108, line 2, where it says, “Every person who knowingly…” The term “knowingly” was struck down by the Court, so we’re attempting to correct the wording so that the enforcement can still be done and it doesn’t leave the clerk hanging when they really didn’t know, or had reason to believe, it was legitimate. I can explain to you how we do it in Metro; I can’t, unfortunately, explain how it’s done in other jurisdictions, but I’m sure it‘s the same way.
Chairman Anderson:
There may be an advantage to developing here, in this particular bill, a set of protocols that would be similar to those that we have in the tobacco statute, if we are to move forward with a piece of legislation, so that the Attorney General and the local law enforcement agency and the clerk at the store would have a recognition of what was expected to take place. There may be an advantage there; I think Mr. Carpenter’s concerns are in that area, as are mine.
Stan Olsen:
We’re available to work with Mr. Carpenter on some wording to reach that comfort level.
Chairman Anderson:
Thank you very much. I’m trying to find, is this Ms. Bartosz?
Assemblyman Mortenson:
Mr. Chair, Mr. Olsen volunteered to say how Metro accomplishes their investigation. Would the Chair be willing to let us hear that?
Chairman Anderson:
Well, we’ve got a couple more people and another bill, but if it takes just a few seconds, Mr. Olsen, for Mr. Mortenson’s edification.
Stan Olsen:
Thank you, Mr. Chair. Mr. Mortenson, we have a cadet program within the Metropolitan Police Department. Our individuals are hired. They’re full-time police employees, they are civilian employees, but they are many times in uniform, and they take reports and we use them for other things. They are anywhere from age 17 up to about 21, just under. If they’re within six months of their twenty-first birthday they’re rotated into the Police Academy, so none of them have reached the age of 21. What we do is use those individuals. We look them over to make sure they look young; there are some of them that can grow a better beard than me, and those individuals are not used. Then they go in whatever store it is to purchase alcohol; the clerk should then card them and turn them away. We don’t use false ID, anything like that, or if we do, it’s very obvious false ID, but to my knowledge, we never have. If the clerk successfully, for lack of a better term, passes the test and doesn’t let the kid buy the alcohol, then the officer’s immediately go in and issue an “atta boy,” as we call it, which is a letter saying “Thank you for doing a good job,” etcetera. If the clerk doesn’t bother to card the individual, then the clerk is cited and the owner of the store or general manager is notified.
Chairman Anderson:
Mr. Olsen, Las Vegas Metropolitan, or the Clark County Sheriffs Office, does several types of sting operations other than in this area. We don’t statutorily require a process by how you identify those other kinds of sting operations, do we?
Stan Olsen:
To my knowledge, no, and I know we do stings up through and involving organized crime figures, or narcotics individuals, or even homicides, but to my knowledge, no. There are certain court guidelines already laid out as to what you can and can’t do to avoid entrapment issues, and those are followed. But I don’t believe that there are specific NRS [sections] that say what you can and can’t do.
Chairman Anderson:
Mr. Albrecht, the only reason we do them for tobacco is because the feds require it?
John Albrecht:
You told us what to do and we did it.
Chairman Anderson:
The feds told us what to do and we did it.
John Albrecht:
No, the feds told us to conduct compliance checks, and the [Nevada] Legislature set up guidelines for how those tobacco compliance checks are to be conducted and we follow those guidelines; we follow your law.
Chairman Anderson:
For those of you who are looking for the citation, NRS 202.2496, “Random inspections to enforce compliance with [NRS] 202.2493 and 202.2494, “assistance of child in conducting inspection[s].” Maybe we can fix this, all by making a reference back to [NRS] 202.2496. All right. We’ll take care of that. Any other questions for these two? Thank you very much. Ms. Bartosz, have you signed in?
Kathy Bartosz:
[Identified herself.]
Chairman Anderson:
OK, I’m sorry, Ms. Bartosz. Did you wish to speak on this issue?
Kathy Bartosz:
No, sir, I was just here to answer any questions that may be with regard to this project. [Identified herself for the record.] I oversee the enforcing of the underage drinking laws project for the state through the Juvenile Justice Programs Office.
Chairman Anderson:
Did one of them misstep and you were going to try to pull them out?
Kathy Bartosz:
No, not yet. A few of them have come close to the edge there, but we’re still in a learning curve in some areas.
Chairman Anderson:
Thank you very much. Mr. Krueger, in support of the legislation.
Peter Krueger, Nevada Petroleum Marketers Convenience Store Association:
[Introduced himself.] We’re the trade association that represents the vast majority of convenience stores, of which there are some 1,000 stores in the state. We are, as the Chairman mentioned, in support of this bill primarily because this is a very serious matter. I think we would all agree that consistency in running these sting operations, do them timely, do them every time, is as we see it, besides a way of rooting out problems in our store, is good merchant education. Just like in all our lives, as we get busy doing all the things that a clerk, a store owner, and a manager have to do: counting the change, keeping the shelves stocked, being nice to their customers, and preventing the underage sale of age-restricted products, which in this state are alcohol and tobacco, primarily. We need a program that is done consistently.
Currently—I don’t have the data, I’ve talked to Ms. Bartosz about it—I’m unclear how many stings in alcohol we run a year; I think we need that information. But we see this bill as an opportunity, as stand-by authority, that only when a local law enforcement agency is unable, for many of the reasons that are mentioned—the Chairman mentioned one that affects a lot of our rural stores. In the town of Ely [Nevada], as an example, [there is] no one who is not known in the community. So it presents a problem in actually getting these kinds of things done. So we support this legislation.
As far as the amendment is concerned, my only concern with the amendment, and I think it would be interesting to hear from Lt. Olsen, is how often this would be done. I can understand that it’s a pretty serious jurisdictional matter between the two forms of law enforcement, local and the Attorney General, but, nevertheless, I think that doing these stings is an overriding compliance. We, just as everyone else in the state, want to prevent the underage sale of alcohol or tobacco. It is interesting that, in the alcohol statute, it is illegal to buy, possess, or use alcohol, whereas, in tobacco, it is not. We also support the idea that Mr. Carpenter is, I believe, getting at, and the Chairman is, where we would have some more specific criteria, because not only is the clerk in these stings fined, and fairly substantially in our industry for what they make, but also a liquor license is on the line in many jurisdictions. Metro is one of the more aggressive jurisdictions in challenging my members, the storeowners, when they have multiple stores, whether they’re going to keep that liquor license, or at least have it suspended for a period of time. So this is a very, very serious matter. We support the bill [and] have questions only because we’re concerned that the amendment is written such that a local law enforcement agency could file a declaration so that it wouldn’t change what’s happening on a daily basis. That’s my testimony, and if there are questions, I’d be happy to answer them.
Chairman Anderson:
Questions for Mr. Krueger? I see none, sir, thank you. Anybody else wishing to testify on Assembly Bill 108? A simple little piece of legislation.
Paul Enos, representing the Retail Association of Nevada:
Good morning. [Introduced himself.] We’d just like to say that we’ve learned, through experience, how beneficial these stings are in preventing tobacco sales to minors, and also alcohol. There’s a balance of quality consideration and success. The buy rate for tobacco since the AG has been conducting this sting has gone down from 69 percent to 12 percent. However these local governments choose to work this out is fine with us; we just want to say that we support the bill and we are very satisfied with the success of the tobacco stings.
Chairman Anderson:
Have you had an opportunity to review the amendment that was suggested?
Paul Enos:
Yes, and like I said, we’re fine; however the governments choose to work it out is fine with us.
Chairman Anderson:
So the Retail Association is conceptually in support of this, obviously, because you don’t want businesses to be selling to underage people, either.
Paul Enos:
Correct.
Chairman Anderson:
Very good, thank you very much. Mr. Sherer, you may have knowledge in this area.
Assemblyman Sherer:
Yes, I do. The biggest thing I look at is, the more [compliance checks], the better it does for us. We usually get it done maybe twice a year, and that’s about it, and it should be done more, but we pass every time with flying colors. I’m glad, but as you can tell, being in an out-of-town area, somebody comes in new, it’s real easy to check him or her. So it would be nice to have somebody that’s more local.
Chairman Anderson:
Well, at least with the tobacco discussion in the past it’s been the fact that there’s a certain stigma that becomes attached to you if you are in a local community that you may not want one of your local kids doing something like this. The larger the community, it’s easy for them to blend in; people may not recognize that it’s going on, and therefore there’s an advantage to it. Any other questions on Assembly Bill 108? Anybody wishing to testify on the bill? Let me close the hearing on A.B. 108. I would ask Mr. Olsen and others to take in mind the Chair doesn’t believe that the way the amendment is written is going to quite fly. I would think that maybe we need to work out some reference to the questions that are in [NRS] 202.2496 that might be helpful to us if we need to expand a definition.
Let’s turn, then, to the third bill of the day, Assembly Bill 126. I open the hearing on Assembly Bill 126. Ms. Pierce, good morning.
Assembly Bill 126: Revises definition of “exploitation” for purposes of provisions concerning abuse of older person and for purposes of provisions concerning civil liability for exploiting older person or vulnerable person. (BDR 15-879)
Assemblywoman Peggy Pierce, District No. 3, Clark County:
Good morning, Chairman Anderson, and Committee members. [Introduced herself.] Thank you for hearing this important bill to further protect our seniors. A.B. 126 is needed because the current definition of exploitation fails to achieve the protection that the law was originally designed to give to the elderly population of our state. The current law was aimed at protecting those seniors who, for reasons often beyond their control, find themselves in a position where they are no longer fully able to handle and manage their own finances. With me today is Stan Olsen, and in Las Vegas, Colin Haynes, an abuse and neglect specialist with the Las Vegas Metropolitan Police Department. With your permission, Mr. Chairman, I’ll turn it over to them.
Chairman Anderson:
Thank you, Ms. Pierce. Mr. Olsen, how do you want to handle [this]? Do you want to move to Clark County first, or do you want to start?
Stan Olsen:
Mr. Chair, with your permission, after I thank Ms. Pierce for bringing this legislation for us, I’d like to go to Colin Haynes down in Las Vegas; he’s the expert and he handles these cases on a daily basis. But we do want to go on record of saying this is important and we really appreciate Ms. Pierce bringing this forward for us.
Colin Haynes, Las Vegas Metropolitan Police Department:
Good morning, thank you very much. [Introduced himself.] I am an abuse and neglect specialist. I’m responsible for the investigation of financial exploitation cases involving seniors. What I found during the four years that I’ve been handling these cases is a pattern of activity occurring in so many cases that the current definition fails to effectively cover them. What I’ve found, quite frequently, is that many seniors reach a point in their lives where they have no choice but to reach out to the people they trust most and ask those people to assist them in managing their finances. Frequently, this may be due to a physical limitation on their part or to cognitive impairment, such as the onset of a dementia issue, that prevents them from effectively managing their own affairs. When these situations occur, they may be as simple as handing over their ATM [automated teller machine] card and their PIN [personal identification number], so that the person they trust can grocery shop for them. It may go as far as adding people’s names to their bank accounts, or even creation of legal documents, such as trusts, living wills, and powers of attorney that empower an individual to act for that senior.
Once that person is in that position of trust, if they then abuse their position, if they then take advantage of the access and the control that they have, and they simply pilfer the money, they take the assets and use them for their own benefit with no regard for the senior’s needs, that would seem to be exploitive; that, in its essence, would seem to be exploitation. Unfortunately, the current definition precludes those scenarios, which are very common scenarios, from being considered exploitive. The current definition requires that the individual act to obtain control through deception, intimidation, or undue influence, and as I’ve just described, more often than not, the scenario is that the person doesn’t act at all; they’re given control. They‘re approached by the senior because the senior trusts them, and they are given that access and that control. The proposed changes to the definition would include those situations as being an exploitive act if that individual then takes that position of control, takes that position of trust, and abuses it for their own benefit. Thank you. [Submitted (Exhibit D) as part of his testimony.]
Chairman Anderson:
The question of intentional is, I guess, the operative term here: “intentional breach of duty.” Recognizing…I presume you’re not an attorney, sir?
Colin Haynes:
No, sir, that’s correct. I’m an investigator with the police department.
Chairman Anderson:
So if [a fiduciary] has a responsibility and intentionally does something, his intent is to help the older person, and it turns out that that in exercising that obligation, it turns out to be a bad investment, what then are [the fiduciary’s] responsibilities? An intentional act is my concern here. That’s a pretty broad definition in my opinion, and it was not his intent to defraud somebody, but was his intent to act, so I’m a little concerned; could you help us out a little?
Ben Graham, Nevada District Attorney’s Association:
[Introduced himself.] I talked with Lt. Olsen, and I appreciate Ms. Pierce bringing this matter. The thing that I wrote down as we’re listening to this is fiduciary duty of a friend, and that’s kind of the issue we’re involved in. What duty does a friend have as a fiduciary? And I think what you might have here is a situation where it may start out not to be exploitive. But I think if you could put something in here that would [stipulate] “for primary benefit” of the person that’s doing the exploiting so that you would have to show that it wasn’t just a bad investment, that they benefit somehow, inured to them or was to inure to them, as opposed to the benefit of the ward or the friend, I think.
Chairman Anderson:
Are you telling us you think that we need [an] additional language amendment here?
Ben Graham:
To get around your concern, today saying, “Trust me” works pretty well. But on down the line, we never know who’s going to be doing it, and I think that if we are concerned, as the Chairman indicated, you don’t want to prosecute somebody just for bad judgment, because two people have bad judgment, the friend and the person being exploited. What we’re looking at is a problem of them misusing that position of trust of a friend for their own benefit. If we could craft something along those lines, that might narrow it down.
Chairman Anderson:
Let me talk to my other attorney. Ms. Buckley?
Assemblywoman Buckley:
I like the bill and can see where the examples given do create a loophole that needs to be fixed, so I appreciate the opportunity to look at this. I think the Chair brought up a very good point, and I’m wondering, also, if we need to put in here “with the intent to permanently deprive the older person of the ownership used…for the benefit of the person doing that action.” That way, we would get intent in, because I’m wondering, the way it’s worded here, “that causes the person to be permanently deprived” doesn’t track the intent language, and we might want to do that just to make sure it’s a tight definition. But I think this is a very worthy area and hope that we’ll take a pencil to it and get the best language we can. I recall struggling over the original language of this when it was brought a couple of sessions ago by the Attorney General’s office, I think, not that long ago. So, thank you, Mr. Chairman.
Chairman Anderson:
Ms. Lang, do you need to help us out here? I think that maybe I breached a topic that maybe we have a conclusion to. Ms. Lang, you want to clarify the bill?
Risa Lang:
I’d be happy to try, Mr. Anderson. Exploitation is broken down in this bill, as you can see, so that there’s two separate paragraphs. The first one would be the situation in which someone obtains the trust and confidence of the older person, and I guess that’s where we’re talking about the person may be a friend or the neighbor or the relative. In that one, we’re talking about someone who, through deception, intimidation, undue influence, with the intent of permanently depriving the older person, takes possession of his money, assets, or property.
In the second paragraph, we’re talking about someone who has an actual duty to that older person so they’re in a fiduciary capacity. In that one, we have a slightly different standard because of that fiduciary duty. In that one, it says that they take it and causes the person to be permanently deprived and it’s an intentional breach of duty, so the duty is set forth, they’ve intentionally breached it and it’s caused a person to be permanently deprived. That’s why the language is slightly different in those two paragraphs, so I hope that helps in this discussion.
Assemblyman Carpenter:
Yesterday we had a bill in here changing how guardians are appointed, and what I was getting at is also emphasized in the bill that we have before us today, which I thoroughly agree with, but it also talks about exercising power of attorney and appointment of a guardian. Appointment of a guardian isn’t something that needs to be taken lightly, and so that’s why I was concerned yesterday on the bill that was presented because it seemed to me like it kind of took away some of the authority that the county commissioners had. So I just want to bring up that when we talk about guardians, whether I appoint one, or somebody appoints me as one, or county commissioners or whoever does it, it’s a real trust that you have to put in those people. I think that these things are all kind of tied together, and I hope I didn’t get too far off the subject.
Chairman Anderson:
I agree, entirely. The question is, I think that many of us are named in trust documents. People that have no other family…I know that I’ve found myself being asked by members of my church to serve in that capacity where they have no children. I don’t know what all those obligations are going to be as they grow older, and as I grow older, I recognize that the reality is that you don’t want to make a mistake in your advice or your counsel to them. At the same time, you take it as a very serious responsibility. I know I do. Mrs. Angle.
Assemblywoman Angle:
Thank you, Mr. Chairman. I have some concerns about this, mostly because I’m in this position. As you said, when you get older you get into these places. I have a grandmother-in-law who has Alzheimer’s, and so we take care of her. Now, she thinks she’s abused, and that’s part of the dementia that she’s in. She thinks she’s abused and some of the outside family members also think that she might be abused or be taken advantage of because they’re not living there, daily with her, and don’t see the actual problems with her dementia. My concerns with this is, who brings the charge, how do we decide—how is that determined? And I guess it’s just so loose for me here, that anything could be construed as abuse.
I also have on my other side, my father has given me his power of attorney, and I manage his financial affairs. Now, my brothers don’t have any problem with that, but they might, and so they could come in and say something like, “You’re abusing your power to have control over Dad’s stuff.” I’m just wondering where in this law there’s some protection for that person who actually takes those kinds of duties on. They’re not exactly pleasant duties and there are things that come into play here that are not fun to deal with. I guess, with family relationships and also, as the Chairman said, in friendship relationships, sometimes you do something just because you want to help out. Those things aren’t seen as very kindly sometimes. I guess I’m looking for the protection for that person who puts himself out there in a kind of precarious place.
Chairman Anderson:
Officer Haynes, having dealt with this issue in the law as it currently is, and with this suggested language, did you help craft the language, sir?
Colin Haynes:
Yes, I did.
Chairman Anderson:
So you think this is going to help you with your investigation? How do you make the screen between the intentional [exploitation] and the person who has given advice and is being accepted here? Or do you?
Colin Haynes:
The points are very valid and I’ve seen them come up in many of my investigations; disputes between family members who are on opposite sides of the fence, and somebody is in that position, so it’s not an unusual scenario. I think the answer would be in both paragraphs a and b. The test of it is intent; both of them include, what is the intent of the individual? Is it an intentional breach of duty versus poor advice? There are many situations that I’ve dealt with where individuals in a position of control have made poor decisions. They think they’re making good decisions, and with hindsight, they probably realize they were, but there was no intent on their part to permanently deprive their ward, the person that they’re responsible for, of anything.
The protection and the test of whether or not it’s bad decisions versus malicious and intentional abuse comes with the fact that both those paragraphs contain that it’s their intent to permanently deprive, or obviously they’ve placed the intent word in a different position. In paragraph b, which is my primary concern, it’s that intentional breach of a duty versus a poor decision, somebody who intentionally sets out to take action that deprives a senior, rather than making a decision on behalf of the senior that subsequently turns out not to have been the best decision.
When doing an investigation, from a practical approach, a lot of the test of how we approach these crimes comes down to how the money was ultimately used. There’s a big difference between somebody who’s taking substantial assets over a short period of time and gambling, which is not an uncommon occurrence, as you can imagine, in many of the cases I handle, versus somebody who uses the money over a period of time and the ward’s needs are being met appropriately, and the money is being used by that individual appropriately. I hope that answers some of your concerns.
Assemblywoman Buckley:
I guess my concern with the language is that “breach of duty” is a technical term under the law, and you have to have a duty in order to breach it. The only way to get a duty, generally, is through a power of attorney or guardianship. I have no duty to Assemblyman Conklin, for example, if he gives me all his money. That term doesn’t arise under the law unless there’s a formal statute creating that duty. I guess sitting here, I just kind of sketched out, maybe we would be better looking at something like any act by a person who has the trust and confidence of an older person, the same language we had last time, or any use of power of attorney or guardianship for a person who converts money, assets, or property for their own use with the intent to permanently deprive the older person of that property. They’re gambling it, so it gets at they don’t have to obtain control, they can just obtain the goods and property, so you clear up the loophole but don’t get into this legal battle later about whether someone really had a duty. We define in there that it’s personal use and get rid of the bad investments, and it’s just really somebody just spending somebody else’s money. That might be something to look at as well.
Ben Graham:
This has really gotten to be a heart-wrenching thing as I look around with my friends and think of my own experience with older parents and families that many of us are facing at this time. From a criminal law standpoint, you want to cover the bases like Ms. Buckley said, so that we don’t get into an abusive process situation. We hear weekly of people who are complaining about the new wife, or the daughter, or whoever; it goes on and on and on. I think we’d like to work with Ms. Buckley and Ms. Pierce and your staff to get at what the real problem is and not to be too broad. I would think probably we would be real reluctant to prosecute in many of these situations, but if we make it clear, then that would give us better guidelines.
Chairman Anderson:
Any other questions for this group from the Committee? Thank you very much, Ms. Pierce, for bringing forth an important piece of legislation to close up a loophole in the law. Ms. Parnell.
Colin Haynes:
Excuse me, sir, I’m sorry to interrupt, in Las Vegas there’s Thelma Clark, a Silver Senator with the National Silver Haired Congress, who is here in the room who would like to speak, if that’s, on this issue.
Chairman Anderson:
We’ll take Ms. Clark. She hadn’t signed in, but we’ll take Ms. Parnell and then we’ll get to Ms. Clark. Thank you very much for alerting us that she was there.
Colin Haynes:
Thank you, sir.
Bonnie Parnell, representing National Alzheimer’s Association:
[Introduced herself.] Thank you, Mr. Chairman and members of the Committee, and I will be brief. I would first like to commend Assemblywoman Pierce for sponsorship of this very important piece of legislation. However it ends up, and I wish you well with the amendment process, I think we would all agree at this point in time that however we get there, we need to get there. When I was sitting in the back listening to the discussion, I do want to bring up a point that currently in statute, we can go after someone who is intentionally preventing the older person from receiving his visitors, mail, or telephone calls, for example. So when we put it in perspective, I think someone who is exploiting an older person, a very vulnerable person sometimes, oftentimes with Alzheimer’s or other dementia-related conditions, when somebody is taking advantage of that person’s money or property, we would certainly want to have that addressed in statute as well. So I come to you today on behalf of the Alzheimer’s Association in support of Assembly Bill 126, and I wish you well in your amending process. Thank you.
Thelma Clark, Nevada Silver Haired Legislative Forum:
[Introduced herself.] Good morning, Mr. Chairman and the Committee. [Identified herself.] I’m testifying today because this was one of our first three priorities when we gave our priorities to the Governor and to the Legislative Committee. We want to thank Assemblywoman Pierce and all the sponsors of this legislation, and also Mr. Haynes for working on it. We just wanted you to know that we support it and I think Assemblywoman Buckley had a good suggestion. That’s all I needed to say, but I wanted you to know that we do support it. There are 21 of us and we voted on it. Thank you.
Chairman Anderson:
We’re well aware of, at least the Chair is aware, of the hard work of the Silver Haired Legislators. I have a constituent who is in your group; she reminds me on a regular basis if I get too far out of line, although I have to say that we miss having you up here, Ms. Clark, to remind us which way we’re going.
Thelma Clark:
You’re doing a good job.
Chairman Anderson:
Thank you very much. Any questions for Ms. Clark? Ms. Erickson, did you wish to speak on this particular piece of legislation?
Kristin Erickson, Washoe County District Attorney:
[Speaking from the audience.] No, thank you. I’m just offering my support.
Chairman Anderson:
The Washoe County District Attorneys’ Association, and I presume the state district attorneys’ association supports this legislation. Anybody else feel a compelling need to speak on Assembly Bill 126? Anybody speaking in opposition? Anybody else want to get on the record? Let me close the hearing on Assembly Bill 126. Assembly Bill 126 is clearly a piece of legislation that we all feel, at least the Chair feels, very supportive of. And I believe Ms. Buckley and Mr. Carpenter feel that we need to be careful in addressing the issues here and mindful of our responsibility to guardians, so we’ll kind of pull this back and see if we can work out a small amendment to the bill to close what we perceive to be a potential harm. We won’t have it on this Wednesday’s work session, but we will have it in an upcoming work session. There are a couple of things that I need to do with this today before we run off.
For the freshman members, the Senate amended Assembly Bill 10 on their side, which was the “sheep shearing” bill. They used it as an opportunity to recognize another section of the statute that had not been brought to our attention; that is, to add, in their amendment, when we’re dealing with a pay phone, that currency or other monetary instrument [includes] “through the use of calling card, credit card, or debit card,” so they merely amended the bill, because it also happened to deal with those kind of transactions, to update it. The Chair did not see a problem with the amendment and I was going to concur with the amendment and so indicate on the Floor today. I bring it to you only just so you’ll know that in most cases, if I don’t see there’s a big problem after talking with both Legal and my researcher, if we talk about it and it doesn’t conflict, I usually just go ahead and concur so that we can move them along more quickly. If there is a problem, then we’ll bring it back here, and we’ll have an opportunity to, I’ll bring it to your attention. I just wanted to tell you that if anybody has a problem or wants to see the amendment, it will be on the Floor in your yellow folder.
Over the last couple of meetings last week, this happened a couple of times, and I bring it to your attention because it always is a very difficult issue. Please recognize, and I’m not going to recommend that you all get out your Mason’s Manual and immediately begin to read it, but I want to bring to your attention Section 760.4 of Mason’s Legislative Manual, which indicates that it is a breach of order to debate or to notice what has been said on the same subject in the other house. I’ve noted on a couple of occasions that people have been pulling up legislation specifically from the Senate side and quoting from that particular piece of legislation, or how the vote went. It’s OK to make reference to a piece of legislation that’s going on in the other house that we might want to bring to our attention; however, remember that in order to keep our legislative process clean, that we operate separately from that other group of people, and that other group of people, in the other house, need only be referred to as “the other house,” or a similarly numbered issue. So, for the integrity of our house to operate entirely independently of the other house, so I only bring that to your attention because it’s now happened a couple of times and I don’t want us to get too far out of line. So if I start making a big thing about it, it’s because I made the mistake of reading [Mason’s Manual] one time.
Next, the work session we’ll be having tomorrow. It is the intention of the Chair to look at: Assembly Bill 13, which is a death penalty bill; Assembly Bill 14, which is also a death penalty bill; Assembly Bill 54, access to child’s record, for which we have an amendment that I believe satisfies some of my concerns were worked out; Assembly Bill 78, crimes against a child; Assembly Bill 95, category E felonies; Assembly Bill 100, the limits on justice courts—I believe that we’ve been able to work out some of the discussion on that piece of legislation—and Assembly Bill 151. Seven pieces of legislation. In addition to that, we will have a regular hearing to begin the day on a very warm, generous topic: the Uniform Commercial Code. And for those of you who have never watched paint dry or the universe in operation… Questions? Something we need to do here in the Committee? Questions for the researcher to be looking at, concerns from Committee members? I feel bad when we’re out of here by 9:30. I feel like I haven’t done my job for the day, loading you up. Just as a point of clarification, we’ll be talking also tomorrow a little bit about Assembly Bill 55. There’s some issues that have come forward on Assembly Bill 55, which we’ve already taken action on, and I want to make sure that we have an opportunity to bring some clarification to it before the amendments come forward. Anything else? With that, we are adjourned [at 9:35 a.m.].
RESPECTFULLY SUBMITTED:
Carrie Lee
Committee Secretary
APPROVED BY:
Assemblyman Bernie Anderson, Chairman
DATE: