MINUTES OF THE
SENATE Committee on Commerce and Labor
Seventy-second Session
April 3, 2003
The Senate Committee on Commerce and Labor was called to order by Chairman Randolph J. Townsend, at 7:00 a.m., on Thursday, April 3, 2003, in Room 2135 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4412, 555 East Washington Avenue, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
COMMITTEE MEMBERS PRESENT:
Senator Randolph J. Townsend, Chairman
Senator Warren B. Hardy II, Vice Chairman
Senator Ann O'Connell
Senator Raymond C. Shaffer
Senator Joseph Neal
Senator Michael Schneider
Senator Maggie Carlton
STAFF MEMBERS PRESENT:
Scott Young, Committee Policy Analyst
Courtney Wise, Committee Policy Analyst
Kevin Powers, Committee Counsel
Johanna Downey, Committee Secretary
Maryann Elorreaga, Committee Secretary
OTHERS PRESENT:
Harvey Whittemore, Lobbyist, Southern Wine and Spirits
Dino DiCianno, Deputy Executive Director, Department of Taxation
Rick Halbardier, Co-owner and Winemaker, Tahoe Ridge Vineyards and Winery
Kathy Halbardier, Co-owner, Tahoe Ridge Vineyards and Winery
Carl Linvill, Administrator, Nevada State Office of Energy, Office of the Governor
Dave Noble, Assistant General Counsel, Regulatory Fund, Public Utilities Commission of Nevada
Thelma Clark, Lobbyist, Nevada Silverhaired Legislative Forum
Helen A. Foley, Lobbyist, T-Mobile
Robert Gastonguay, Lobbyist, Nevada State Cable Telecommunications Association
Marsha L. Berkbigler, Lobbyist, Charter Communications
Mark H. Fiorentino, Lobbyist, Churchill County Communications
Bill J. Slentz, President, Oasis Online
James J. Jackson, Lobbyist, Cingular Wireless
Dan Musgrove, Lobbyist, Clark County
Laura B. Altschul, Lobbyist, T-Mobile
Margaret A. McMillan, Lobbyist, Sprint Nevada
Fred L. Hillerby, Lobbyist, Verizon Wireless
The Honorable Nancy M. Saitta, Department 18, Eighth Judicial District
Gail J. Anderson, Administrator, Real Estate Division, Department of Business and Industry
Danny McLaughlin, Safe Homes Nevada
Ronald P. Dreher, Lobbyist, Peace Officers Research Association of Nevada
Robert A. Ostrovsky, Lobbyist, Employers Insurance Company of Nevada
Trey Delap, Deputy Executive Director, State Board of Osteopathic Medicine
K. Neena Laxalt, Lobbyist, Nevada Board of Veterinary Medical Examiners
Chairman Townsend opened the hearing on Senate Bill (S.B.) 373.
SENATE BILL 373: Revises certain provisions governing importation of liquor. (BDR 32-858)
Senator Schneider said S.B. 373 would make it easier for common carriers to comply with reporting requirements of the Department of Taxation when importing wine and allow Nevada businesses to ship wine out of the State. He said United Parcel Service (UPS) had discontinued delivering liquor to Nevada because of the reporting requirements imposed by the Department of Taxation.
Harvey Whittemore, Lobbyist, Southern Wine and Spirits, said he supported the intent of the bill, but proposed some changes. He read proposed amendments from a prepared document (Exhibit C). Mr. Whittemore suggested adding "… by common or contract carrier …" to the heading. He recommended other changes which were contained in Exhibit C. He said the intent was to provide clear and precise direction to the Department of Taxation and obligate the consignor to forward a signed statement of delivery to the Department of Taxation.
Chairman Townsend asked Senator Schneider if he agreed with the amendment. He said he would like to review the suggested amendment with Scott Young, Committee Policy Analyst, before agreeing to include it in the bill.
Senator O'Connell asked why shipping liquor in or out of Nevada was a problem. Mr. Whittemore said Nevada allows importation for personal use, with a limit. The interest of the State of Nevada was to be sure taxes were collected on imported liquor. He said a system of regulation was necessary to avoid loss of tax revenue and to avoid the importation and sale of counterfeit liquor.
Dino DiCianno, Deputy Executive Director, Department of Taxation, said the amended language in section 1 removed an efficient means of administering and enforcing the excise tax on liquor.
Mr. Young said UPS representatives had stated they would be happy to transport liquor products into Nevada, but the reporting requirements in Nevada Revised Statutes (NRS) 369.450 were too burdensome so they had elected not to ship the product. They had a provision in their tariff that gave them the authorization to refuse to carry such products and to destroy them. The tariff is the contract between UPS and the customers for whom they ship. He said UPS had provided a list of 10 states where they freely transported alcoholic beverages in and out of state. For UPS it boiled down to the reporting requirements in Nevada were so burdensome, they had chosen not to service the Nevada market.
Senator Schneider suggested a meeting between himself, Mr. Whittemore, Mr. Young, and a representative from the Department of Taxation to work on the bill. He said there was not a large amount of money at risk; the shipping of special wines was a boutique industry. He said most people made most of their wine purchases from large distributors.
Mr. Whittemore said the bill was not designed to change the obligation to pay tax. The intent was to streamline the shipping process. He said the Department of Taxation retained the authority to adopt regulations under section 1, subsection 2, of the bill.
Rick Halbardier, Co-owner and Winemaker, Tahoe Ridge Vineyards and Winery, said although he was able to bring wine into Nevada through the federal bonding process, he supported the bill for both importing and exporting of alcohol. He said carriers such as UPS were not willing to ship wine out of Nevada; therefore, he had to transport his product to California and have it shipped from there. Mr. Halbardier referred to the information packet submitted to the committee (Exhibit D) and gave a brief history of grape growing and wine making in Nevada. He explained the agricultural benefits of growing grapes as opposed to row crops or grasses. Local farmers would have an opportunity to diversify; grapes needed less water for irrigation; there would be a higher monetary return than with other crops. He said the expansion and growth of the industry could develop multilayers of tax revenue for Nevada. He said it would be important to have export facilities in place when tourists visited the wineries and purchased wine, purchased wines on the Internet, or by mail order.
Kathy Halbardier, Co-owner, Tahoe Ridge Vineyards and Winery, said to be able to operate as a boutique winery and form a wine club the shipping issue needed to be resolved. They could not continue to drive cargo to California to be able to ship it to their customers.
Chairman Townsend closed the hearing on S.B. 373 and opened the hearing on S.B. 414.
SENATE BILL 414: Repeals prospective increase in number of commissioners comprising Public Utilities Commission of Nevada. (BDR S-1255)
Carl Linvill, Administrator, Nevada State Office of Energy, Office of the Governor, said he opposed the bill because increasing the number of commissioners from three to five would cost $1.3 million over the biennium. He said any additional workload could be accommodated by a utilities hearing officer at a cost of $250,000.
Senator O'Connell asked Mr. Linvill to address the problem of the lack of opportunity for two commissioners to discuss an issue if there were only three commissioners on the board. She also asked if most public utility commissions were comprised of five members because of that problem. Mr. Linvill said policy-advising staff and staff in the office of the general counsel could discuss issues with commissioners. He said he did not know if most commissions had five commissioners.
Dave Noble, Assistant General Counsel, Regulatory Fund, Public Utilities Commission of Nevada, said problems caused by the inability of the commissioners to discuss issues off the record had been overcome with the participation of the policy advisors and the general counsel's office. He said the agendized discussions had improved because everything the commissioners discussed was on the record.
Thelma Clark, Lobbyist, Nevada Silverhaired Legislative Forum, said a five‑member commission would not cost the State any money. The money to pay the extra commissioners would come from the mill tax. She said it was preferable to have five commissioners voting on rate cases that involved large sums of money.
Vice Chairman Hardy closed the hearing on S.B. 414 and opened the hearing on S.B. 426.
SENATE BILL 426: Establishes statewide procedures for approval of applications for placement, construction or modification of facilities for personal wireless communications. (BDR 58-1286)
Helen A. Foley, Lobbyist, T-Mobile, gave a brief history of mobile and wireless communication services in Nevada. She said it had been difficult to provide excellent service to wireless customers because some communities had refused to allow wireless companies to build cell sites. Ms. Foley said the suggested amendments to S.B. 426 addressed the problem.
Chairman Townsend recessed the hearing on S.B. 426 and opened the hearing on S.B. 429.
SENATE BILL 429: Makes various changes relating to high-speed Internet access service, broadband service, video programming service and community antenna television systems. (BDR 58-1072)
Chairman Townsend said the bill draft request was originally drafted on behalf of a local Internet provider, which had become S.B. 400. It had become the vehicle to resolve issues with the cable industry under S.B. 429.
SENATE BILL 400:Makes various changes relating to telecommunication service and broadband service. (BDR 58-261)
Robert Gastonguay, Lobbyist, Nevada State Cable Telecommunications Association, referred to a document listing recommended amendments (Exhibit E) as a work in progress.
Marsha L. Berkbigler, Lobbyist, Charter Communications, said the intent of the bill was to establish parity within the cable business in Churchill County and Fallon. She said Charter Communications held the franchise for Churchill County, Fallon, and the Fallon Naval Air Station since the early 1970s. She said Churchill County Communications, the local telephone company, was also a cable provider. Churchill County Communications, as a municipally owned phone company, was exempt from Public Utilities Commission of Nevada and Federal Communications Commission (FCC) oversight. Ms. Berkbigler said the position of Charter Communications was Churchill County Communications should be required to meet the same requirements. She said the proposed amendments in Exhibit E adequately addressed the concerns of Charter Communications.
Senator Hardy asked how long Charter Communications, or its predecessor, had been a cable provider in Churchill County. Ms. Berkbigler said the cable business had been there since the early 1970s. Mr. Gastonguay said he was aware of cable providers at least back to 1981. He said the different companies that provided cable service were Teleprompter, Group W, TCI, AT&T, then Charter Communications.
Mark H. Fiorentino, Lobbyist, Churchill County Communications, introduced the administrators of Churchill County Communications and gave a brief history of the company. He said the company had 100 employees and contributed approximately $1.8 million to the county budget. The bill was very important to the company. He said the company wanted to cooperate and be part of the process leading to fair regulations for all providers of cable services.
Chairman Townsend encouraged the representative from Charter Communications and Churchill County Communications to continue to meet, try to agree on language for the amendments, and present the proposed amendments to the committee the following week.
Senator Neal asked if there had been multiple companies providing cable services in Churchill County or if there had been several owners of one company. Chairman Townsend said there had been multiple owners, over time, of one of the companies.
Bill J. Slentz, President, Oasis Online, said his company was a privately-owned Internet service provider in Fallon and the largest competitor of Churchill County Communications for dial-up Internet access. He said Churchill County Communications was not only competing with the private sector, but had also made attempts to purchase all the other Internet service providers in the area. He said if the goal of the Legislature was to allow the needs of Nevada residents to be met primarily by the private sector, he would like that same consideration to be extended to dial-up Internet access in the bill.
Chairman Townsend thanked Mr. Slentz for his insight on the matter and suggested he participate in the discussions with Charter Communications and Churchill County Communications.
Chairman Townsend closed the hearing on S.B. 429 and reconvened the hearing on S.B. 426.
James J. Jackson, Lobbyist, Cingular Wireless, submitted proposed amendments to the bill (Exhibit F) and said all of the major wireless companies had been working on the document in an effort to establish a Statewide uniform standard on cell-siting. He said the value of wireless communication became apparent on September 11, 2001, when landlines were locked up and wireless communications became necessary for ongoing communications with emergency personnel. Mr. Jackson said Cingular Wireless felt government support of expansion of wireless services would greatly benefit the citizens of Nevada.
Senator O'Connell declared she leased property to a facilitator for Western Wireless.
Chairman Townsend asked if Clark County had reviewed the proposed amendments.
Dan Musgrove, Lobbyist, Clark County, said he had not seen the amendment but had spoken with the drafters and felt the concerns of Clark County had been addressed in the bill. He said he might have some language regarding structural and design standards that should be incorporated into the bill. Clark County had an expedited process, which probably accounted for their success in putting up over 239 towers in the past 5 years.
Chairman Townsend asked if someone could install a cell site on private property without county authorization. Mr. Musgrove said authorization would be needed, but if it was not intrusive and did not bother neighbors it would probably be authorized. He said Clark County had been a model for allowing expansion of wireless services.
Senator Neal asked what information would be available to a zoning authority to enable it to determine if environmental effects were up to standard.
Laura B. Altschul, Lobbyist, T-Mobile, said every wireless carrier must meet stringent federal standards to be able to operate cell sites. They must register with the FCC and are monitored by the FCC. Senator Neal asked if there were any investigations done to ascertain federal standards were being met, after a facility had been established. Ms. Altschul said the issues of emissions and radio frequency were only within the purview of the federal government, but any citizen or elected official could request information about any site from the FCC.
Margaret A. McMillan, Lobbyist, Sprint Nevada, and Fred L. Hillerby, Lobbyist, Verizon Wireless, both said they supported the bill.
Chairman Townsend asked if structural design standards were included in the language of the bill. Ms. Foley referred to Exhibit F and said those concerns were addressed in section 12, in an attempt to model them after Clark County. Chairman Townsend asked if the wording provided enough flexibility. Mr. Musgrove said it seemed to, but since he was not an expert in the field, he would like to have Kevin Powers, Committee Counsel, or someone in Clark County review the bill and his proposed amendment (Exhibit G).
Chairman Townsend recommended the amendment be drafted and copy be provided to Mr. Musgrove for review by Clark County. Mr. Musgrove thanked Chairman Townsend.
Chairman Townsend recessed the hearing at 8:45 a.m., reconvened at 9:02 a.m., and opened the hearing on S.B. 371.
SENATE BILL 371: Creates Constructional Defect Commission and revises various provisions governing actions resulting from constructional defects. (BDR 54-251)
Senator Schneider said the current mediation process for the resolution of construction defect cases was prolonged and expensive, because of the involvement of attorneys. Estimated repair costs are based on "maximum repair" costs at the request of attorneys when actual repair costs were often much less. He said it could take 3 to 5 years for a case to get to court, causing owners of defective homes to wait years to get repairs made. He said insurance companies had told him they often do not trust their attorneys to act in their best interest and he felt some home owners were being preyed upon because of the large sums of money involved in construction defect cases. Senator Schneider said a Construction Defect Court, staffed by three judges, had been established in Clark County.
Senator Schneider explained establishment of a Constructional Defect Commission, to replace the Construction Defect Court, would streamline the process and benefit home owners. He said the commission would consist of three experts from the construction industry and four consumers, appointed by the Governor. He explained the proposed duties and procedures of the commission, as defined in sections 1 through 20 of the bill. He said S.B. 371 was not a right-to-repair bill, it was a requirement-to-repair bill. The bill removed incentives for trying to make money from home owners and expedited repairs of defective homes.
Chairman Townsend referred to section 24, subsections 3 and 4, which listed educational requirements that needed to be met before applications for original registration, renewal, or reinstatement licenses could be approved. He said it was important for licensees to be fully aware of construction defect laws. He asked Senator Schneider if he had included section 8, subsection 11, because of a personal experience. Senator Schneider said he attended a meeting on construction defects and the attorney making the presentation refused to allow the ombudsman to attend the meeting, citing attorney-client privilege, even though several home owners had requested the ombudsman be present. He said home owners should be able to invite whomever they want to attend meetings.
Chairman Townsend said there were two components to the bill, first, the establishment of the commission and secondly, the educational requirements for licensees. He asked if there was anyone to testify about either component.
The Honorable Nancy M. Saitta, Department 18, Eighth Judicial District, said her testimony was meant to be educational. She clarified judges do not align themselves with defense or plaintiff lawyers. To do so would be an ethical violation. Judges must be impartial regarding cases before them. She also stated many construction defect cases involved hundreds of homes so destructive testing could not be done on each one. In those cases the process of extrapolation was utilized.
She said she was one of the three judges on the Construction Defect Court and explained the process for moving construction defect cases through the court system. She said they had been successful in eliminating cases because the three judges were intimately involved with all the construction defect cases, since they see the cases no less than once a month. Attorneys are therefore required to appear in court and explain what progress had been made in the previous 30-day period. One-half of the cases in the inventory had been eliminated in the past 18 months.
Judge Saitta said the court maintains a neutral position regarding the establishment of a commission as contemplated by S.B. 371. She said she would be available to provide education and statistics related to the court process in place in Clark County.
Senator Schneider asked how long it took to move a case through the court. Judge Saitta said it took approximately 2.8 years. The goal of the court was to reduce that to 18 months.
Senator Schneider then asked how settlement conferences worked and if home owners were made whole as a result. Judge Saitta said the judge and the mediator would meet and identify the scope of work and range of repairs and agree on a settlement, which goes into court for approval. A 30-day duty to pay would be included in the good-faith settlement motions. She said she would presume home owners were comfortable with the settlements. The repair was the important consideration.
Senator Shaffer asked if the court had any control over the insurance companies' attendance at court. Judge Saitta said the court could order insurance companies to appear at settlement conferences. In the past, those orders had sometimes been ignored. She said the court gave equal attention to home owners, insurance companies, contractors, and subcontractors, which had resulted in positive responses and cooperation from insurance companies.
Senator Schneider said, unlike medical malpractice cases, the consumer in a construction defects case could be made whole. The home could be repaired, no matter how bad the defect. The purpose of a commission would be to make sure a house was repaired. There would be no argument over the price of the repairs; they would just be made. The builder and subcontractors could use the court system to determine liability for the repairs.
Gail J. Anderson, Administrator, Real Estate Division, Department of Business and Industry, addressed sections 24 through 34 and expressed concern about the education requirements for registration for owner-developers. She said the registration process did not include issuing permits, licenses, or certificates. Part of the registration process required a review of documents including a copy of the owner-developers' license issued by the State Contractors' Board. She said since the State Contractors' Board issued licenses, perhaps the education requirements could be part of their licensing requirements rather than those of the Real Estate Division, which had no education requirements for owner‑developer registration. Ms. Anderson expressed concerns about responsibilities of licensees if construction defects were overlooked and not reported; what would qualify the Real Estate Division to investigate a complaint in such a matter; and what kinds of educational courses would be included under the bill?
Chairman Townsend suggested Ms. Anderson discuss her concerns with Senator Schneider.
Senator Shaffer asked how long a contractor would be responsible for construction defects. Senator Schneider said the 10-year limit was still in the bill.
Danny McLaughlin, Safe Homes Nevada, testified in opposition to the bill. He said the establishment of a commission would deprive Nevadans of their constitutional right to have construction defect issues heard by a jury of their peers. He did not want members of the State Contractors' Board deciding the cases. He said judges had graduated from law schools and had many years of experience as attorneys. He read section 8 and said the State Contractors' Board would teach the law and procedure to members of the commission so they can act like judges. Let the contractors take courses to learn to build homes correctly and leave judging to qualified people. He asked where the money would come from to pay for the commission that would replace the whole judicial branch of government in construction defect cases. He said taxes already support the court system.
Senator Schneider said the purpose of the bill was to encourage repairs, not litigation. Additionally, the commission would be under the purview of the Governor, not the State Contractors' Board. He said he did not think a home owner should have to go to court to get repairs done. Repairs could be accomplished faster and simpler through a commission. Funding for the commission would come from an existing account and fees assessed from builders, not from taxes.
Chairman Townsend closed the hearing on S.B. 371 and opened the work session on S.B. 102.
SENATE BILL 102: Revises provisions relating to the Public Utilities Commission of Nevada. (BDR 58-968)
Chairman Townsend referred to the work session documents folder (Exhibit H, Original is on file in the Research Library.) under tab A, and read proposed amendments to S.B. 102. He said the bill was requested for Thelma Clark. She had recommended that the effective date be changed to passage and approval; to increase the commission to five members; and the Governor would appoint the chairman.
Ms. Clark said she did not understand section 6, subsection 2, line 9.
Scott Young, Committee Policy Analyst, said:
I think I might be able to clarify. In the bill as written there are parallel sections, taking into account the increase that was put into effect last session. In section 6, if that law was to take effect and you went to five commissioners, then you would be operating under section 6. If you were to pass S.B. 414, those sections in S.B. 102 that relate to five commissioners would never go into effect.
Ms. Clark said she would like to see a five-member commission. The members needed to be able to discuss issues; that could not be done if there were only three members.
Chairman Townsend said section 4, subsection 3, would allow the Governor to appoint an acting commissioner if a commissioner was unable, for any reason, to participate on a specific matter before the commission and required the acting commissioner to meet the same qualification standards as a commissioner.
SENATOR NEAL MOVED TO AMEND AND DO PASS S.B. 102.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION FAILED. (SENATORS TOWNSEND, O'CONNELL, CARLTON AND HARDY VOTED NO.)
*****
The committee members entered into a discussion of the proposed amendment. Clarification was made regarding the appointment of the chairman of the commission, terms of office, and the number of members of the commission.
Senator Carlton said she would like to change her vote. Chairman Townsend asked for the correct procedure.
Mr. Powers said, "If I understand everything that just occurred, the vote on Senator Neal's motion to amend and do pass failed. The Chairman can entertain another motion to amend and do pass."
Chairman Townsend said the motion by Senator Neal was to adopt the amendments, which included the bill to be effective upon passage and approval; the increase to five members would become effective upon passage; the member from the public would not automatically become the chairman, the Governor would appoint the chairman; the member from the public would be required to meet the standards under NRS 703.030; and the requirements for the replacement of a commissioner who was unavailable for any reason.
Mr. Powers said, "Mr. Chairman could we make the effective date July 1, 2003? It would be practically impossible for the Governor to appoint two additional members to the commission if the bill was effective upon passage and approval."
SENATOR CARLTON MOVED TO AMEND AND DO PASS S.B. 102.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS TOWNSEND, O'CONNELL, AND HARDY VOTED NO.)
*****
Chairman Townsend closed the work session on S.B. 102 and opened the work session on S.B. 240.
SENATE BILL 240: Revises various provisions relating to benefits payable to surviving spouses and children of certain police officers and firemen. (BDR 53-696)
Chairman Townsend said the intent of the bill was to eliminate the remarriage penalty for surviving spouses of police officers and firefighters killed in the line of duty. It would not apply to those surviving spouses receiving benefits under the current law. The bill would apply on a prospective basis.
Ronald P. Dreher, Lobbyist, Peace Officers Research Association of Nevada, submitted a proposed amendment (Exhibit I) and said it was his understanding the bill would pick up those surviving spouses whose spouses had been killed in the line of duty.
Chairman Townsend said the committee had been advised the problem with retroactive coverage was no premium had been collected or reserves set to cover the risk. Implementing the bill prospectively would not present a problem because the risk could be covered by payments of premium. He asked if the bill covered all surviving spouses.
Mr. Powers said, "Mr. Chairman we are only dealing with the remarriage portion of the bill right now, sections 1 and 2."
Chairman Townsend said there had been prior testimony presented to the committee, which explained if the provisions were prospective, the risk could be covered by premium payments. There was no coverage for risk that had already occurred.
Robert A. Ostrovsky, Lobbyist, Employers Insurance Company of Nevada, said Chairman Townsend had correctly interpreted the testimony.
Mr. Powers said:
Chairman Townsend, to help to frame the discussion I would just like to say the proposal is the remarriage penalty would not apply to a surviving spouse of a police officer who was killed in the line of duty on or after the effective date of the act. The term prospective is not necessarily being used as technically accurately as possible here.
Chairman Townsend said, according to the bill, those who would lose a spouse on or after the effective date of the act, would not have a remarriage penalty according to the bill. That would carve out the previous problem of a lack of premium being collected.
Mr. Powers said, "There would be a category. Those surviving spouses receiving benefits at this moment would still be subject to the remarriage penalty."
Chairman Townsend asked if it would be possible to add a provision that would allow a surviving spouse to reapply for benefits, if a remarriage dissolved within a certain amount of time. Could that be included in actuarial calculations?
Mr. Ostrovsky said any change made in the factors considered would require a recalculation of anticipated claim expenditures. He said it would be difficult to say what the impact would be.
Chairman Townsend said the bill would do two things. It changed the remarriage penalty for surviving spouses of police officers and firefighters who died, in the line of duty, after the effective date of the act. It would also allow for application for the extension of health care benefits.
Senator Hardy asked for clarification of the law. He said if someone is killed in the line of duty, the surviving spouse and any minor children received benefits. If the surviving spouse remarried, he or she would receive a lump-sum payment equal to 2 years' compensation benefits. The children would continue to receive benefits regardless of the marital status of the surviving spouse, up to a certain age. He asked if the proposed amendments only addressed the elimination of the lump-sum payment and allowed the surviving spouse to continue to collect benefits for the rest of his or her life.
Mr. Dreher said the children would not receive an additional amount of compensation. The full benefit was paid to the surviving spouse who used the money to help support the children. If a surviving spouse remarried, the minor children would continue to receive up to 66 2/3 percent of the salary of the deceased parent.
Mr. Powers said:
I think I need to clarify something for the record, Mr. Chairman. As I understood it, Mr. Ostrovsky was making a proposal. Here is what is going on. In sections 1 and 2 of the bill, as the bill is currently written, it applies to any surviving spouse whose spouse was killed in the line of duty before the effective date of the act and the surviving spouse has not remarried before the effective date of the act. Then after the effective date of the act, that surviving spouse is not subject to the penalty. So the bill currently does apply, as written, to surviving spouses whose spouse was killed before the effective date of the act. As I understood Mr. Ostrovsky's proposal, if you made the bill apply only to those surviving spouses of police officers killed on or after the effective date of the act, then the insurance companies could form a better actuarial prediction.
Mr. Ostrovsky said he had not made a proposal, he had responded to the Chairman. He had not seen the line-of-duty amendment, but he thought the bill would create two classes of surviving spouses. One would be entitled to the benefit until their death and the other would be surviving spouses of firefighters or police officers who were not killed in the line of duty.
Senator Carlton said the bill actually created three categories. The two described by Mr. Ostrovsky plus all other employees that were not police officers or firefighters.
Chairman Townsend recessed the work session at 10:39 a.m. and reconvened at 4:50 p.m.
Chairman Townsend opened the work session on S.B. 395.
SENATE BILL 395: Revises provisions governing court reporters. (BDR 54-548)
Mr. Young said he had received a proposed amendment to the bill (Exhibit J) and asked that it be reviewed. The amendment deleted both "repeatedly" and "deliberately" from section 12.
SENATOR O'CONNELL MOVED TO AMEND AND DO PASS S.B. 395.
SENATOR SHAFFER SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SCHNEIDER AND CARLTON WERE ABSENT FOR THE VOTE.)
*****
Chairman Townsend closed the work session on S.B. 395 and opened the work session on S.B. 281.
SENATE BILL 281: Revises provisions relating to osteopathic physicians. (BDR 54-985)
Trey Delap, Deputy Executive Director, State Board of Osteopathic Medicine, said he would answer any questions the committee members might have about the amendment.
Mr. Young referred to the memorandum to Senator Carlton in the work session document (Exhibit H) and said it contained answers to questions Senator Carlton had about the scope of practice of osteopathic physicians.
SENATOR O'CONNELL MOVED TO DO PASS S.B. 281.
SENATOR HARDY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SCHNEIDER AND CARLTON WERE ABSENT FOR THE VOTE.)
*****
Chairman Townsend closed the work session on S.B. 281 and opened the work session on S.B. 427.
SENATE BILL 427: Makes various changes relating to veterinarians. (BDR 54‑472)
Chairman Townsend read from the proposed amendment in Exhibit H.
K. Neena Laxalt, Lobbyist, Nevada State Board of Veterinary Medical Examiners, said Senator O'Connell had asked for section 15, subsection 2, to be eliminated from the proposed amendment. Therefore, Mr. Powers and the deputy attorney general representing the board were asked to discuss the language in the bill.
Mr. Powers said:
In my discussions with the deputy attorney general who represents the board, the idea of adding the language in subsection 2 of the proposed amendment is to make it clear in the law that establishing the burden of proving actual injury that the testimony of lay witnesses, those who actually witnessed any injury to the animal could be proffered into evidence to support proof of actual injury.
Chairman Townsend asked if someone took their pet to a professional and remained in the room while treatment was rendered, if that person would be the lay witness referenced in the proposed amendment.
Ms. Laxalt said she believed the concern was there had to be actual injury witnessed at the time of the injury.
Senator Hardy said he thought the injury was death of the animal.
Mr. Young said:
I think, though, there was a threshold issue with the bill as introduced that probably is not being resolved by this amendment. What subsection 1 of the existing language provides is that proof of actual injury need not be established where the charge is deceptive or unethical professional conduct. The board's contention was that by stating proof of actual injury is not required in those types of violations does not imply that it is required for other types of violations. Other parties have said it is required for other types of violations. By adding the language in subsection 2, the Legislature seems to be impliedly recognizing that proof of actual injury is required for all other types of violations. If that is where we are headed, it would probably be best if we make that explicit in the chapter. So the first policy question is whether or not proof of actual injury is necessary for other types of violations. Once you make that threshold policy decision, then this standard would provide the board with the ability to use lay witnesses to establish proof of actual injury. If we want to make sure that actual injury does not mean death, then we can specify that in the bill as well. We can define actual injury to be any type of physical harm to the animal including, but not limited to, death.
Ms. Laxalt said the way Mr. Powers explained it is exactly the way it should be.
Chairman Townsend said he thought the intent was to clarify what information was needed to impose discipline on a licensee. As Senator Hardy had stated, death should not be the only injury that could result in disciplinary action by the board.
Ms. Laxalt said the amendment included a change in the language in NRS 638.145 from "satisfactory proof" to "a preponderance of the evidence."
Chairman Townsend asked if the proposed amendments to section 15 addressed the concerns articulated during the hearing.
Mr. Powers said:
I don't believe it addresses all of the board's concerns, as far as the type of violations that require proof of actual injury. I believe if we take the language that we see on the page and we modify it in such a way that with the condition precedent that (this is just drafting off the top of my head) in any proceeding before the board in which proof of actual injury is an issue, proof of actual injury can be established through the testimony of opinion of lay witnesses. For the purposes of this section actual injury does not require proof of death, or something to that effect. Or actual injury includes any type of physical injury to the animal including, without limitation, death. Something to that effect.
SENATOR HARDY MOVED TO AMEND AND DO PASS S.B. 427.
SENATOR O'CONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR SCHNEIDER WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend closed the work session on S.B. 427 and reopened the work session on S.B. 240.
Chairman Townsend said there were two issues in the bill. One was the remarriage penalty and the other was to include two surviving spouses in the provision of health care insurance.
Mr. Young asked if making the amendment effective upon passage and approval would speed up the process of getting coverage for the surviving spouse of Officer Sullivan.
Mr. Powers said, "That would accelerate the process."
SENATOR CARLTON MOVED TO AMEND AND DO PASS S.B. 240.
SENATOR HARDY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR O'CONNELL VOTED NO. SENATOR SCHNEIDER WAS ABSENT FOR THE VOTE.)
*****
Senator O'Connell presented an update on the findings of the subcommittee regarding S.B. 131 and S.B. 132. She said she thought the committee might want to request an interim study. The issues identified by the subcommittee were a need for someone to supervise testing for mold and someone or a division to oversee remediation of mold. She said the issue was extremely complex.
SENATE BILL 131: Directs Legislative Commission to appoint subcommittee to conduct study relating to mold in structures. (BDR S-221)
SENATE BILL 132: Requires licensure of persons engaged in certain activities relating to control of mold. (BDR 53-235)
Chairman Townsend asked which authority should be utilized in the study. Senator O'Connell said the State Board of Health needed to be involved because there were no national standards for Nevada to consider.
Senator Hardy said there was some model legislation in other states, but he agreed the issue should go to an interim committee.
Chairman Townsend asked if there was any model legislation in any national organizations that could be put into S.B. 131 or S.B. 132 for the use of an interim committee.
Senator Hardy said he found some in Texas and Arizona that just dealt with the issue of minimum qualifications for a mold-remediation specialist.
Chairman Townsend asked if the State Board of Health should be given authority to draft a regulation on the issue. Senator O'Connell agreed the health department needed to be given the authority to come up with certification requirements.
Mr. Young said:
Just a suggestion based on some of the information we heard, as staff, in subcommittee and looking at some of the proposals from other states, there seemed to be a belief among the people that addressed the subcommittee that we, meaning the State of Nevada, and many jurisdictions perhaps do not have the resources yet in terms of the scientific knowledge to develop health standards. The focus of the testimony was that we should perhaps look at licensing the labs or the people that do the testing to determine if mold is present, and then secondly, look at licensing the people that do the actual remediation. Although I'm not that familiar with what the health department does, I believe perhaps they might be capable of handling the issue of the labs and certification of those who identify or test for the mold. I'm not sure they would necessarily have the background and expertise to look at the remediation issue. Unfortunately, the contractors' board and the department of industrial relations both felt that they were not in a position to do that either. But I'm not sure that assigning that portion of the responsibility to the health department would be feasible. I wish I had a solution for that, but I don't at present.
Mr. Young said he would get back to the committee with information from Texas and Arizona for consideration by the committee.
Chairman Townsend said the processing of S.B. 102 rendered S.B. 414 moot.
SENATOR O'CONNELL MOVED TO INDEFINITELY POSTPONE S.B. 414.
SENATOR HARDY SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS SHAFFER AND SCHNEIDER WERE ABSENT FOR THE VOTE.)
*****
There being no further business, Chairman Townsend adjourned the work session at 5:32 p. m.
RESPECTFULLY SUBMITTED:
Maryann Elorreaga,
Committee Secretary
APPROVED BY:
Senator Randolph J. Townsend, Chairman
DATE: