MINUTES OF THE
SENATE Committee on Commerce and Labor
Seventy-second Session
April 10, 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 10, 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
GUEST LEGISLATORS PRESENT:
Assemblywoman Christina R. Giunchigliani, Assembly District No. 9
STAFF MEMBERS PRESENT:
Scott Young, Committee Policy Analyst
Courtney Wise, Committee Policy Analyst
Kevin Powers, Committee Counsel
Maryann Elorreaga, Committee Secretary
OTHERS PRESENT:
James J. Jackson, Lobbyist, Cingular Wireless
Helen A. Foley, Lobbyist, T-Mobile and Marriage and Family Therapists
Alfredo Alonso, Lobbyist, Southern Wine and Spirits
Dino DiCianno, Deputy Executive Director, Department of Taxation
Robert G. Whittemore
Dorothy B. North, Lobbyist, President, Board of Examiners for Alcohol and Drug Counselors
Scott Craigie
Carl B. Linvill, Administrator, Nevada State Office of Energy, Office of the Governor
Donald Soderberg, Chairman, Public Utilities Commission of Nevada
Fred L. Hillerby, Lobbyist, State Board of Nursing and Board of Dental Examiners of Nevada
Chairman Townsend opened the work session on Senate Bill (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)
James J. Jackson, Lobbyist, Cingular Wireless said the proposed amendment under tab A of the work session document (Exhibit C. Original is on file in the Research Library.) was the final version of the bill. Language regarding denial of a design application based on aesthetics had been changed. He said there had been some concern expressed about the language, which addressed right‑of‑way, but the intent was to give providers of wireless communication services the ability to approach local governments for access. Chairman Townsend said he had reviewed the proposed changes. He said it was important for local governments to deal with local issues, such as the design issues.
Senator Hardy asked if the new amendment conflicted with the amendment submitted by Clark County. Mr. Jackson said those concerns had been dealt with in the bill.
Helen Foley, Lobbyist, T-Mobile and Marriage and Family Therapists, said they had worked directly with Clark County employees that dealt with rights-of-way. The legislation had been modified to reflect their concerns.
SENATOR O'CONNELL MOVED TO AMEND AND DO PASS S.B. 426.
SENATOR CARLTON SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NEAL WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend closed the work session on S.B. 426 and opened the work session on S.B. 373.
SENATE BILL 373: Revises certain provisions governing importation of liquor. (BDR 32-858)
Alfredo Alonso, Lobbyist, Southern Wine and Spirits, said the amendment (Exhibit D) had one change, section 1, subsection 2, paragraph (d), had been deleted but should be put back in the amendment.
Dino DiCianno, Deputy Executive Director, Department of Taxation, said, as he had testified previously, section 1, subsection 2, paragraph (d), gave the Department of Taxation a quick and efficient method for cross-checking between a shipper and a supplier.
Chairman Townsend said he understood the effort made by Senator Schneider to solve a problem and he also understood the issues brought up by Mr. DiCianno. He asked if Senator Schneider agreed with the change in the language.
Senator Schneider said he had concerns with paragraph (d) being put back in the bill. He said providing the number identifying the railroad car, truck, or other conveyance used was the main problem with United Parcel Service (UPS). Senator Schneider said UPS could and would provide a tracking number to the Department of Taxation any time that information was needed. Mr. DiCianno said if the Department of Taxation could see shipping logs of suppliers, the requirement in paragraph (d) was not necessary.
Kevin Powers, Committee Counsel, said, "I certainly know the issue is we are going to remove paragraph (d) of the former subsection 2 from the bill. The question is are we adding additional language?"
Senator Schneider said the tracking numbers that UPS had were all computerized and could be available at any time, and asked if additional language was needed in the law. Mr. DiCianno said there were provisions for regulations within the original language and within the amendments that would cover the issue.
Mr. Powers said, "I concur, Mr. Chairman, that would be an appropriate way to take care of the issue."
Senator Hardy said he wanted to be assured the bill would allow for shipping out of Nevada as well. Senator Schneider said he thought it did. United Parcel Service would be looking at the amendment right away; if they noted any problems they could be handled on the Senate Floor.
Mr. Alonzo and Mr. DiCianno said they would follow-up on the bill when it was passed to the Assembly.
SENATOR SCHNEIDER MOVED TO AMEND AND DO PASS S.B. 373.
SENATOR O'CONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NEAL WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend closed the work session on S.B. 373 and opened the work session on S.B. 351.
SENATE BILL 351: Requires licensure or certification for persons who counsel compulsive gamblers. (BDR 54-123)
Senator Carlton reported on the subcommittee meeting on the bill. She said things had gone very well and the bill had been rewritten to address certification of professionals who treat the problem.
Courtney Wise, Committee Policy Analyst, said section 10, subsection 2, of the amendment describes how persons holding other licenses may obtain a certificate to work with problem gamblers. Licensees under chapter 641of Nevada Revised Statutes (NRS), psychologists, and chapter 641C, Alcohol and Drug Abuse Counselors were inadvertently left out of the bill.
Robert G. Whittemore said he represented the Nevada State Psychological Association and supported the bill. He commended the committee for correcting a gross mistake. He said in the past, people could be certified as counselors based solely upon the possession of a high school diploma.
Ms. Foley said they had used the development of the Board of Examiners for Alcohol and Drug Abuse Counselors as a model. She said they wanted to be sure counselors currently practicing in their field would be able to become certified as problem gambling counselors.
Dorothy B. North, Lobbyist, President, Board of Examiners for Alcohol and Drug Counselors, said she was pleased with the outcome of the meeting and the bill as written.
Senator Carlton suggested the board be named the Board of Alcohol, Drug, and Gambling Counselors.
SENATOR CARLTON MOVED TO AMEND AND DO PASS S.B. 351.
SENATOR O'CONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR NEAL WAS ABSENT FOR THE VOTE.)
*****
Chairman Townsend closed the work session on S.B. 351 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 said there was some confusion about the composition of the five-member commission. He had been told the Transportation Services Authority (TSA) would merge with the Public Utilities Commission of Nevada to form the five-member commission.
Scott Craigie shared his experience as the Chairman of the Public Service Commission of Nevada in the 1980s. He said mixing the disciplines of transportation regulation and utility regulation would not work. One budget is funded by the mill assessment and the other by an assessment on transportation. Additionally, there were two different regulatory structures involved. He said it would undermine the commission to bring the TSA back in.
Carl B. Linvill, Administrator, Nevada State Office of Energy, Office of the Governor, said he agreed merging the two boards would be a mistake.
Chairman Townsend was concerned the committee did not have sufficient information when voting on the bill.
Chairman Townsend opened the work session on S.B. 193.
SENATE BILL 193: Clarifies coverage of industrial insurance for members of Nevada Legislature. (BDR 53-782)
Chairman Townsend said Senator Schneider had introduced the bill to clarify whether or not Legislators were covered, for the purposes of workers' compensation, while engaged in any function reasonably related to their legislative offices. He said Assemblywoman Christina R. Giunchigliani, Assembly District No. 9, had submitted a proposed amendment to the bill to further clarify the issue.
Senator Schneider said the amendment from Assemblywoman Giunchigliani clarified coverage for teachers. The position of the school district was that teachers were not covered during extracurricular activities because they were not paid for participating in those activities. He said teachers are salaried employees, and are paid for any work-related activities.
Chairman Townsend said teachers did not volunteer to participate in extracurricular activities; the administrators assigned those duties.
Scott Young, Committee Policy Analyst, said the provision the amendment would address was (NRS) 616A.265. He said the language at issue was the exception in the definition of "injury" and "personal injury" which said, "An injury sustained by an employee while engaging in an athletic or social event sponsored by his employer shall be deemed not to have arisen out of or in the course of employment unless the employee received remuneration for participation in the event." He said Ms. Giunchigliani's amendment addressed teachers and the requirements they attend certain functions as part of their employment. Mr. Young said the request for the amendment was the result of an instance when a teacher sustained an ankle injury while attending a school-sponsored athletic event. The teacher was not compensated for a work-related injury because of the language in NRS 616A.265. He said the amendment should only address teachers, not employees in general. Ms. Giunchigliani said Mr. Young's statement captured the situation exactly and applying the amendment only to teachers was adequate.
Mr. Powers said:
Mr. Chairman might I ask if Scott were to work with Ms. Giunchigliani to define exactly which employees of the school districts we want to be covered by this change in the law. I'm assuming we're only talking about, we're not talking about college and community college employees, we're just talking about high school and below. There are teachers, there are administrators, there are counselors, and there are teachers' aides.
Ms. Giunchigliani said school principals usually chaperoned dances along with teachers. She said teachers and administrators should be included.
Chairman Townsend asked if a nonteaching full-time employee of a school district would be covered if injured at an extracurricular event. Mr. Young said coverage was determined by whether or not the employee was compensated for attending an event. If an employee were not paid for participation in an event or activity, the employee would not be considered to be in the course and scope of employment under NRS 616A.265.
Mr. Powers said, "Mr. Chairman for the purposes of the amendment, I would just offer that we use the term, an 'employee of a school district'."
Senator Carlton asked if she were to be injured during practice for an upcoming Legislative softball game, would she be covered.
Mr. Powers said,
I'd like the committee to turn to the first page of the bill S.B. 193, lines 11 and 12, if at the time of the injury the Legislator was performing any act or was engaging in any function that was reasonably related to his legislative office. That's fairly broad language and I believe that it would be interpreted to cover the softball game being played by the Legislators because that's reasonably related to their legislative office. However, since sporting events and recreational events sponsored by the Legislature are not specifically listed in the non-exhaustive list at the end of the section there's always the potential for interpretation to read this more narrowly than I believe it should be read. It's always advisable in some circumstances to provide more clarity in the law.
Senator Neal asked if legislative office was defined in the constitution.
Mr. Powers said:
Yes it is Senator Neal. The duties of the legislative office are specified in the constitution but the language 'as reasonably related to his legislative office' and also 'his public service as a Legislator,' those are fairly broad categories. It does not say anything specifically about sporting or recreational activities. What this provides is guidance to the hearings and appeals officers for the industrial insurance hearing division to give meaning to what 'performance of a Legislator' is they have to provide that guidance based on what I consider to be fairly broad language.
Senator O'Connell asked if the insurance would be something the Legislators would have to pay for. Senator Schneider said there was no fiscal note on the bill because Legislators were covered under workers' compensation. The amendment would clarify when they were covered.
SENATOR SCHNEIDER MOVED TO AMEND AND DO PASS S.B. 193.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Townsend closed the work session on S.B. 193 and reopened on S.B. 102.
Senator Shaffer said he was requesting reconsideration of the vote on S.B. 102, based on the previous testimony of Mr. Craigie.
SENATOR SHAFFER MOVED TO RESCIND THE PREVIOUS ACTION TAKEN ON S.B. 102.
SENATOR O'CONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR CARLTON VOTED NO.)
*****
Chairman Townsend said the amendment would be changed by removing the effective date of July 1, 2003, which would result in leaving the membership of the board at three.
Mr. Powers said:
Mr. Chairman, maybe I can provide some clarification for the committee. What we could be doing in S.B. 102 is one, repealing those provisions of A.B. No. 661 of the 71st Session that expand the commission to five members effective October 1, 2003. Additionally, to address some of Ms. Clark's concerns, we can ensure that any final action taken by the commission must be taken by no fewer than two members of the commission. Her concern was certain language in chapter 703 that allows one commissioner to act when there is a vacancy on the commission. We could take those two actions and conform S.B. 414 and S.B. 102.
Chairman Townsend said the commission would be left at three members and one commissioner could not decide a case. Mr. Linvill said he thought the proposal was reasonable.
Senator O'Connell asked how long it would take to find an alternate commissioner if a commissioner was unable to participate in a hearing. Mr. Linvill said it would be desirable to find an alternate as soon as possible. He said there was a small pool of candidates available. Senator O'Connell asked if it would be prudent to have alternate commissioners following cases so they would be familiar with the issues.
Chairman Townsend said a commissioner should know if he or she could rule on an issue at the time a case was filed. An alternate could be appointed before the discovery process was initiated or testimony was taken.
Donald L. Soderberg, Chairman, Public Utilities Commission of Nevada, said there would be some instances when commissioners would know early on recusal would be appropriate. He said, more often, the need for recusal or the unavailability of a commissioner became apparent shortly before a vote.
Chairman Townsend said the bill would ensure one commissioner would not render decisions.
Senator Neal asked if the commission's decisions were influenced by the fact their budget was funded by the mill tax. Mr. Soderberg said the commission is able to adjust the mill assessment, within a range, on an annual basis. If collections go down, the assessment could be raised. If revenues went up, the assessment could be reduced; therefore, the commission did not have a vested interest in its decisions.
SENATOR SHAFFER MOVED TO AMEND AND DO PASS S.B. 102.
SENATOR O'CONNELL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATORS NEAL AND CARLTON VOTED NO.)
*****
Chairman Townsend closed the work session on S.B. 102 and opened work session on S.B. 273.
SENATE BILL 273: Requires contractor or his representative to be present at certain inspections conducted at residence or appurtenance that is subject of claim for constructional defect. (BDR 3-252)
Chairman Townsend suggested the language in section 1 be amended to read, "a contractor or his representative must be notified a time and location for an inspection had been set."
Senator Schneider said he thought the change was acceptable. He said contractors should be given the opportunity to participate in an inspection.
Senator Hardy asked if the language in section 1, line 5, clarified a home owner could conduct an inspection as long as it was not part of a claim under NRS 40.600.
Mr. Powers said:
Senator Schneider and I discussed this language. What we were doing is replacing section 1 with the language, 'If an owner of a residence or appurtenance or a home owners association that is responsible for a residence or appurtenance or representative of such an owner or home owners association has hired, contracted with, or paid any person to inspect the residence or appurtenance to obtain information related to any condition or damage which has the potential to resolve in a claim for constructional defect, the person shall not conduct the inspection of the residence or appurtenance unless the contractor who is allegedly responsible for the condition or damage has been provided with notice of the inspection and a reasonable opportunity to be present or to have a representative of the contractor present when the inspection is conducted.' The point here is that at the point you hire someone to come inspect your home for that purpose.
Senator Hardy said the change made sense. When a claim had been filed under chapter 40, any information was subject to the rules of discovery.
Senator Neal asked why it would be necessary to have the builder present at an inspection conducted by a qualified inspector. Senator Schneider said lawsuits had been filed against builders who had not had the opportunity to view alleged defects or had the option to repair them.
Senator Neal asked for a definition of "reasonable opportunity to be present" in the new language.
Mr. Powers said:
It would have to be under circumstances that provided the contractor with a realistic opportunity to be present at the inspection. Because these things turn on the facts and circumstances of each case, we have to create an objective standard that can be applied for the circumstances.
A discussion between the committee members took place regarding the imposition of a time limit for scheduling an inspection.
Mr. Powers said, "Mr. Chairman, I suggest we keep the reasonable opportunity language but we also provide that the inspection may not be conducted earlier than 3 working days after the date that the notice is provided."
Senator Hardy said he thought the amendment would provide home owners with an opportunity to understand more than one side of a story. Lawsuits were not necessarily appropriate or needed.
Chairman Townsend said repairs would be made sooner if contractors were present at inspections and saw defects first hand.
SENATOR SCHNEIDER MOVED TO AMEND AND DO PASS S.B. 273.
SENATOR NEAL SECONDED THE MOTION.
THE MOTION CARRIED. (SENATOR CARLTON VOTED NO.)
*****
Chairman Townsend closed the work session on S.B. 273 and opened the work session on S.B. 132.
SENATE BILL 132: Requires licensure of persons engaged in certain activities relating to control of mold. (BDR 53-235)
Senator O'Connell read from a proposed amendment to the bill (Exhibit E). She said the Division of Industrial Relations would establish requirements for licensure of workers to inspect and test mold. She referred to section 10, subsection 4, and asked if "may" should be changed to "must."
Senator Neal said he thought subsection 4 should be left to read "the division may adopt such other regulations as necessary."
Mr. Powers said:
My comments are essentially consistent with Senator Neal's. As the language reads, 'they may adopt other regulations as are necessary to carry out the provisions.' It's a discretionary standard. It could be 'must adopt' as are necessary but they still have to make that initial determination that the regulations are necessary to further carry out the provisions of the bill and the bill requires them to adopt a series of regulations as well, so there will be a regulatory process. This just gives them additional power to fill in the gaps that the bill doesn't explicitly provide, within the limits of the Legislative authority.
SENATOR NEAL MOVED TO AMEND AND DO PASS S.B. 132.
SENATOR CARLTON SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
*****
Chairman Townsend closed the work session on S.B. 132 and opened the work session on S.B. 131.
SENATE BILL 131: Requires certain insurers to disclose coverage for control of mold in property insurance policies and to offer coverage for control of mold. (BDR 57-221)
The committee discussed the need for interim committee or subcommittee meetings to further study the issues of inspections for mold and mold abatement.
Chairman Townsend asked if a lightly structured amendment could be included which would define the members of a committee, for example three members from the Assembly Committee on Commerce and Labor, three members from the Senate Committee on Commerce and Labor, and any other committees with jurisdiction. He said the number of meetings to be held, and so forth, could be suggested.
Mr. Powers said:
Well, I might make the recommendation, Mr. Chairman, you could always add it to the amendment of S.B. 132 and that way it will go along with that bill, and would be considered in conjunction with that bill.
Chairman Townsend said that would not be a good idea because S.B. 132 would process normally. If a study bill were to be processed, it would have to go to the Senate Committee on Legislative Affairs. He asked if it could be done in S.B. 131.
Mr. Powers said, "That would be fine, Mr. Chairman. I just misinterpreted what you were requesting. I apologize."
Chairman Townsend said the motion should be to re-refer the bill to the Senate Committee on Legislative Affairs and Operations to create an interim committee consisting of three members from each House, from the appropriate committees of jurisdiction, to study the issues enumerated in the bill.
SENATOR CARLTON MOVED TO AMEND, DO PASS, AND RE-REFER TO SENATE COMMITTEE ON LEGISLATIVE AFFAIRS AND OPERATIONS S.B. 131.
SENATOR O'CONNELL SECONDED THE MOTION.
THE MOTION PASSED UNANIMOUSLY.
*****
Chairman Townsend closed the work session on S.B. 131 and opened the work session on S.B. 310.
SENATE BILL 310: Makes various changes relating to certain occupational boards and commissions. (BDR 54-223)
Senator Carlton said the most contentious issue in the bill was the matter of the safety net provider. Concerns expressed were of removing a professional from the board and putting a safety net provider in that place. She said she had stated there was nothing to prohibit the professional member from also being the safety net provider. She said the Board of Medical Examiners had three public members. One of those members would be the safety net provider on that board.
Fred L. Hillerby, Lobbyist, State Board of Nursing and State Board of Dental Examiners of Nevada, said it was becoming more and more difficult to find people to serve on boards.
Chairman Townsend, Senator Carlton, and Mr. Hillerby discussed possible language for the amendment to clarify the composition of boards. Senator Carlton said the Great Basin Primary Care Association was compiling a list of potential board members.
Mr. Hillerby proposed an amendment, applicable to all boards that would require boards to implement procedures, which would prevent a board member from participating in activities concerning the license of a family member.
Chairman Townsend asked if language could also be added which required disclosure of a familial relationship between a licensee and an employee of a board member.
Mr. Powers said, "Yes Mr. Chairman, your statement was much broader in that it applied to financial interests outside of the board itself."
Chairman Townsend and Senator Schneider engaged in a brief discussion of the fiscal note on S.B. 371. The fiscal note was for the staff of the commission; the money would come from the recovery fund set up for the repair of defective houses.
SENATE BILL 371: Creates Constructional Defect Commission and revises various provisions governing actions resulting from constructional defects. (BDR 54-251)
Mr. Young said the money had been collected for individual home owners who would qualify for reimbursement from the fund. A home owner would have to go to court, win a judgment, and prove the contractor was insolvent before reimbursement would be made.
Chairman Townsend said more information was needed about the amount of money in the fund and how the fund was administered, so the bill could be processed.
Senator Schneider asked if there was an interim committee that could address the issues of workers' compensation set down in S.B. 292. He said the process had become more burdensome to injured workers since privatization.
SENATE BILL 292: Directs Legislative Commission to appoint subcommittee to study impacts of recent privatization of industrial insurance program. (BDR S‑784)
Chairman Townsend recommended the bill be amended as a whole, with a request for a standard interim commission to study the issues of injured workers, which have resulted from the transition to the marketplace.
There being no further business, Chairman Townsend adjourned the meeting at 9:55 a.m.
RESPECTFULLY SUBMITTED:
Maryann Elorreaga,
Committee Secretary
APPROVED BY:
Senator Randolph J. Townsend, Chairman
DATE: