MINUTES OF THE
SENATE Committee on Judiciary
Seventy-second Session
February 7, 2003
The Senate Committee on Judiciarywas called to order by Vice Chairman Maurice E. Washington, at 8:00 a.m., on Friday, February 7, 2003, in Room 2149 of the Legislative Building, Carson City, Nevada. The meeting was videoconferenced to the Grant Sawyer State Office Building, Room 4406, 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 Mark E. Amodei, Chairman
Senator Maurice E. Washington, Vice Chairman
Senator Terry Care
Senator Mike McGinness
Senator Dennis Nolan
Senator Dina Titus
Senator Valerie Wiener
GUEST LEGISLATORS PRESENT:
Senator Joseph M. Neal, Jr., Clark County Senatorial District No. 4
Senator Raymond D. Rawson, Clark County Senatorial District No. 6
STAFF MEMBERS PRESENT:
Nicolas Anthony, Committee Policy Analyst
Bradley Wilkinson, Committee Counsel
Jo Greenslate, Committee Secretary
OTHERS PRESENT:
R. Ben Graham, Lobbyist, Clark County District Attorney and Nevada District Attorneys’ Association - South
Stan Olsen, Lieutenant, Lobbyist, Las Vegas Metropolitan Police Department and Nevada Sheriff’s and Chief’s Association South
James F. Nadeau, Lobbyist, Washoe County Sheriff’s Office
Ronald P. Dreher, Lobbyist, Peace Officers Research Association of Nevada (PORAN)
Lynn Chapman, Lobbyist, Nevada Eagle Forum
Suzie H. Carrillo, Supervisor, Central Repository for Nevada Records of Criminal History, Department of Public Safety
Alfredo Alonso, Lobbyist, Lionel Sawyer & Collins, Nevada Resort Association, and Nevada Beer Wholesalers Association c/o Bonanza Beverage
Scott M. Craigie, Lobbyist, Nevada State Medical Association
Kendall Stagg, Lobbyist, Nevada Tobacco Prevention Coalition and American Cancer Society
Barbara Lee Hunt, RN, MPA, Lobbyist, Washoe County District Health Department and Washoe County District Board of Health
Kris Parraguirre, Tobacco Education Coordinator, The American Lung Association
Martin Herman, Lobbyist
Robin D. Camacho, Lobbyist, American Heart Association
Helen Foley, Lobbyist, Clark County Health District
Ashley Bauer, Carson City High School Student, Teens Against Tobacco Use
Maria Urbina, Carson City High School Student Body President, Teens Against Tobacco Use
Carolee Ames, Concerned Citizen, Volunteer, St. Rose Dominican Hospital, Henderson
Mary F. Lau, Lobbyist, Retail Association of Nevada
Peter D. Krueger, Lobbyist, NV Petroleum Marketers & Convenience Store Association
Van V. Heffner, President and Chief Executive Officer, Nevada Hotel & Lodging Association and Nevada Restaurant Association
Dawn Lofgreen, Prevention Specialist, Vitality Center, Nevada Tobacco Prevention Coalition
Mitzi Johnson, Girl Scouts of Frontier Council, Las Vegas, Nevada
Gayle Farley, Concerned Citizen
Don Henderson, Acting Director, State Department of Agriculture
Robert H. Beach, State Director, USDA-APHIS-WS, State Predatory Animal and Rodent Committee, State Department of Agriculture
Stephanie D. Licht, Lobbyist, Nevada Woolgrowers’ Association and Elko County Commission
Vice Chairman Washington opened the hearing on Senate Bill (S.B.) 26.
SENATE BILL 26: Establishes certain requirements relating to monitoring devices attached to exterior of vehicles to track movement or location of vehicles. (BDR 14-146)
Senator Joseph M. Neal, Jr., Clark County Senatorial District No. 4, remarked the proposed bill was to disallow certain established requirements relating to monitoring devices that attach to the exterior of vehicles to track the movement and location of vehicles. It would also make evidence gathered from use of these devices inadmissible in a court of law. Senator Neal referred to a Nevada Supreme Court case, Frederick Allen Osburn v. The State of Nevada, April 25, 2002, Exhibit C, that brought this issue to his attention, and stated in his opinion a public policy should be formulated regarding vehicle-tracking devices.
Senator Neal pointed out there were currently no guidelines regarding who had authority to attach the tracking devices, which vehicles should have devices attached, and whether the devices should be attached without certainty the person driving the vehicle had committed a crime.
In response to a question from Vice Chairman Washington, Senator Neal stated anyone who can purchase a tracking device could place it on a vehicle. For example, private detectives or jealous husbands could attach a tracking device. Senator Neal explained his position was that a person under suspicion should be made aware his movements would be tracked before attaching the tracking device.
Senator Care agreed there was no expectation of privacy as to the exterior of automobiles. He noted the interior of a car was a different matter, which was covered by the Fourth Amendment to the Constitution of the United States of America, Senator Care asked how law enforcement selected which cars to monitor.
Senator Neal pondered whether the use of tracking devices without drivers’ knowledge would be leading Nevada towards becoming a police state. Additionally, he questioned whether the use of such devices could be considered entrapment. In Senator Neal’s opinion, the use of tracking devices without drivers’ knowledge would be entrapment.
R. Ben Graham, Lobbyist, Clark County District Attorney and Nevada District Attorneys’ Association - South, remarked automobiles were not like homes, which have an extended area of privacy. He stated an automobile travels on public streets, parks in parking lots, and can be followed by someone on the ground or in the air. People walking by automobiles can look in and see what is on the seats. Regarding a homing device, Mr. Graham stated if the police had a reasonable suspicion a crime had been committed, the police may have a desire to follow a suspect’s vehicle from a safe distance for their safety, the safety of the public, and possibly the safety of passengers in the vehicle. Mr. Graham said the police had the right to follow a vehicle up to the driver’s house. Once the car was in the garage, and the driver went into the house, all evidence was no longer admissible without a warrant.
Mr. Graham explained entrapment takes an innocent person who had no prior propensity to commit a crime, and by outrageous government conduct, gets that person to commit a crime. He maintained following a car on a public street could not be considered entrapment. Mr. Graham expressed his opposition to S.B. 26. Additionally, he told Senator Neal if the Senator could outline any area where there have been abuses in the past, he would address those concerns.
Stan Olsen, Lobbyist, Lieutenant, Las Vegas Metropolitan Police Department and Nevada Sheriff’s and Chief’s Association, stated his organizations also opposed S.B. 26. He pointed out vehicle-tracking devices were important investigative tools for law enforcement throughout the State. Lieutenant Olsen remarked that as criminals become more sophisticated, law enforcement must use tools available to meet the sophistication of criminals. He stressed within most law enforcement agencies, vehicle-tracking devices were used only with approval of the supervisor, and only in conjunction with a crime under investigation at the time. Lieutenant Olsen said a device called the Technical Analytical Unit was used. Rank and file officers and detectives did not use the device, but had to request its use through proper channels. According to Lieutenant Olsen, the Technical Analytical Unit had complete control over use and operation of the vehicle-tracking system.
Lieutenant Olsen revealed use of the device was a public safety issue. If a car was followed visually, it took a minimum of six cars to perform a rolling surveillance. He stated the driver often drove erratically to determine if he was being followed, endangering officers and other drivers. Lieutenant Olsen explained the use of tracking devices allowed the operator to call out to officers such information as which street the person was crossing or turning onto, and which direction the vehicle was headed, without having to maintain immediate surveillance on the suspect. Lieutenant Olsen said the devices had to be applied to vehicles on public property. They could not be applied surreptitiously on private property. He concluded by saying the devices saved money and manpower.
Senator Care asked what would prevent an officer from using a tracking device outside the scope of his duties. He also inquired about the sophistication of the department’s guidelines and to what degree they were made public.
Lieutenant Olsen reiterated that within the Las Vegas Metropolitan Police Department (LVMPD), the Technical Analytical Unit was the one specifically designated to control and operate the devices. He also mentioned requests had to come through a supervisor and there was bureau policy, rather than department policy, because each bureau had specific policies regarding operation of tracking devices.
James F. Nadeau, Lobbyist, Washoe County Sheriff’s Office, stated the vehicle‑tracking device or “BirdDog,” was a valuable tool. He said these devices were sophisticated and expensive, and their use was narrowly defined by both departmental and divisional policy. Mr. Nadeau remarked there were a variety of uses for tracking devices, but they were not used on an everyday basis. In order to use the device, there had to be a high degree of investigative need. Mr. Nadeau continued, the devices were used in criminal investigations, narcotics cases, abductions, and other situations where someone was being investigated, but the case had not reached the level of probable cause or issuance of a search warrant. He expressed concern about changing the existing limitations.
Lieutenant Olsen added if the rural areas of Nevada were using vehicle-tracking devices, they were probably going through the Nevada Investigation Division, because the learning process was both expensive and time-consuming. His department had also used the devices on internal criminal investigations of police employees. Mr. Olsen said the most recent internal investigation resulted in the arrest of an officer who had committed armed robbery at a bar in southern Nevada. He emphasized the device was critical in proving the officer had lied during the investigation after he was arrested.
Mr. Graham referred to Mr. Nadeau’s mention of probable cause. He stated prior to obtaining a search warrant, the officers had to demonstrate facts and information sufficient to lead a reasonable person to believe a crime had been committed and the suspect probably committed it, or a crime had been committed and evidence existed in a particular place at a particular time. This was usually after the investigation had been in progress, but there still needed to be additional evidence gathered for probable cause. Mr. Graham noted the evidence gathered using the tracking device could also have exonerated the suspect.
Senator Neal remarked if the devices were going to be used without the knowledge of the person being tracked, the Legislature should be able to require placement of a statement into the investigative record, stating there was a suspicion of a crime having been committed by the suspect and the reason for that suspicion. He noted such a statement could be reviewed, in case of a trial, to determine if the suspect’s rights had been violated.
Ronald P. Dreher, Lobbyist, Peace Officers Research Association of Nevada (PORAN), stated his organization represented most of the peace officers of Nevada, and was opposed to S.B. 26 mainly due to law enforcement’s need of tools to perform efficiently. He pointed out the use of a transponder in law enforcement had proven effective over the past 20 years in fighting crime. Mr. Dreher noted he had never witnessed improper use of vehicle-tracking devices. He urged the committee to indefinitely postpone S.B. 26.
Lynn Chapman, Lobbyist, Nevada Eagle Forum, expressed her support for S.B. 26. She said she was concerned about the balance between law enforcement and the private citizen. Ms. Chapman also stated the Nevada Eagle Forum supported the Fourth Amendment to the Constitution of the United States of America as well as The Constitution of the State of Nevada. Ms. Chapman said her group was concerned about the rapid erosion of citizens’ rights. She said they did support the need for a search warrant and court order, but were concerned about abuse of power.
Mr. Graham added, in response to a query from Senator Neal, if a bug or a homing device was put on any vehicle, it was all part of the investigative reports, which were discoverable, provided to defense counsel, and any evidence found through this device was challengeable in court. According to Mr. Graham, if it was inappropriate, the court would suppress it.
Vice Chairman Washington closed the hearing on S.B. 26. He opened the hearing on S.B. 41.
SENATE BILL 41: Revises provisions governing release and use of limited personal information to certain supervisors of personnel involved in security of resort hotels. (BDR 14-110)
Senator Raymond D. Rawson, Clark County Senatorial District No. 6, stated Tim Donovan of the Security Chief’s Association requested S.B. 41. He said there were only two simple changes in the bill, but there was a significant policy decision. The bill was brought about by the need to define security procedures at resort properties in Nevada’s major industry. Senator Rawson mentioned two significant incidents, the first a serious shoot-out in Laughlin, resulting in a number of fatalities. The second incident was the attack on September 11, 2001, which had focused the nation on the need for being observant and aware of possible future attacks. Senator Rawson noted S.B. 41 allowed for designated security personnel, rather than anyone who works at a hotel property, to contact the Department of Motor Vehicles (DMV) to identify the owner of a registered vehicle. He explained this procedure would be followed when a car was cruising the resort parking lot and was spotted on the security camera, when an occupied car was seen in the shaded area of the property for an extended period of time, or if other suspicious activity was observed.
Senator Rawson explained the second change to S.B. 41 would allow designated hotel security personnel to access criminal history on a suspicious individual in order to determine if the police should be notified. He pointed out security personnel would be accountable to the law if they improperly used the information.
Senator McGinness inquired whether Senator Rawson was concerned about the amount of the fiscal note attached to the bill. He asked whether Senator Rawson thought the $5 charge per inquiry was adequate. Senator Rawson answered he was not concerned about the amount of the fiscal note since fiscal notes were estimates. He noted resort hotels comprised the prime portion of the economy in Nevada. He also referred to heightened security in the United States due to the impending war in Iraq. Senator Rawson emphasized the possible occurrence of a major event that could have been intercepted would, perhaps, devastate Nevada.
Senator Care stated for the purpose of laying legislative intent, there was nothing in the bill that would empower resort security personnel to be able to search a suspicious vehicle or hold it until law enforcement arrived. Senator Rawson agreed, and said it was his opinion security personnel only had the right to restrict individuals from entering resort property.
Senator Care expressed his concern regarding giving out information that was not public to certain members of the public, thereby making it public information. He asked whether that would make the information available to the press and therefore to the general public. Senator Rawson stated the question, “If information is disseminated to a police department, is the press allowed that information?” He noted it might be worth requesting counsel’s opinion on the matter.
Vice Chairman Washington requested an opinion from Bradley Wilkinson, Committee Counsel. Mr. Wilkinson stated he would research the issue and get back to the committee.
Senator McGinness asked Senator Rawson if the State of Nevada provided proprietary information to any other members of the public. Senator Rawson answered he was not aware any other public segment was allowed access to license plate information. Senator McGinness noted this would put a tremendous amount of responsibility on the Nevada Resort Association (NRA), and the NRA could become vulnerable to liability if the information obtained was misused.
Senator Care clarified once information was made available to certain segments of private industry it became public information. He pointed out for the same reason a resort owner would want information regarding the criminal record of a suspicious individual, so would the owner of a shopping center or a homeowners association, for example. Senator Rawson agreed many business owners would like the ability to access official information regarding suspicious persons. He noted this bill would limit access to designated and trained personnel.
Senator Nolan brought up the point the Central Repository for Nevada Records of Criminal History did not give all details of a person’s record. The example he used was of sexual offenders, saying when someone made an inquiry, the repository did not give out the suspect’s entire criminal record. Repository personnel would merely say, “This is a person you should be concerned with, and they should not be around children.” Senator Nolan suggested perhaps the same procedure should apply to S.B. 41, if passed.
Mr. Wilkinson pointed out Nevada Revised Statutes (NRS) 179A.110 provided:
No person who receives information relating to sexual offenses or other records of criminal history pursuant to this chapter may disseminate it further without express authority of law or in accordance with a court order. This section does not prohibit the dissemination of material by an employee of the electronic or printed media in his professional capacity for communication to the public.
Mr. Wilkinson commented security personnel who received information regarding a person’s criminal record could not, by law, disseminate it any further.
Lieutenant Olsen reported the Las Vegas Metropolitan Police Department and Nevada Sheriff’s and Chief’s Association both supported S.B. 41. He said the work performed by security personnel, particularly within the resort properties, was critical in keeping the public safe.
Mr. Nadeau, representing the Washoe County Sheriff’s Office, remarked the records division of Washoe County Sheriff’s Office was comfortable with the language in S.B. 41. He further stated repository personnel would like limitations added and planned to offer an amendment to the bill, and he would support the bill with the proposed amendment.
Vice Chairman Washington suggested the amendment be given to committee staff as soon as possible before the work session on S.B. 41.
Senator Nolan questioned whether the repository would be able to allocate required staff to handle additional telephone calls if the bill passed. Secondly, he asked if perhaps someone in the LVMPD would be able to screen outgoing information from the repository. Lieutenant Olsen remarked passage of S.B. 41 would impact personnel. He added the LVMPD had been working under manpower constraints for many years due to growth, and they would manage. Lieutenant Olsen stated the LVMPD would review the cost impact after it had occurred.
Senator Titus remarked, although she was quite concerned with security, S.B. 41 seemed to be Big Brother at its most extreme. She asked if there was evidence from resort hotels this bill was really needed. Senator Titus inquired about non‑resort hotels, such as the Econo Lodge. She agreed with Senator Care’s point that a lot of other businesses would want the same authority as the resort hotels to obtain personal information and expressed concern many people would have access to personal information, with the only condition being it was necessary to protect public safety. Finally, Senator Titus said over the years there had been instances of security guards committing crimes themselves. She questioned the wisdom of giving authority to private security guards to obtain individuals’ personal information.
Lieutenant Olsen said as far as security personnel causing problems, resorts had adopted an extensive background check and training program for security personnel for several properties. Regarding a facility such as the Econo Lodge, there was no on-site security and motel personnel ended up calling law enforcement anyway. He pointed out the difference with an establishment such as the Econo Lodge; there was no supervisor to call or authorize a subordinate to call and obtain personal information.
Suzie H. Carrillo, Supervisor, Central Repository for Nevada Records of Criminal History, Department of Public Safety, offered a small amendment to S.B. 41. She proposed adding a paragraph (t) to subsection 5 of NRS 179A.100, “pursuant to chapter 481 [of NRS] or as defined in [NRS] 481.” Subsection 1 of NRS 179A.100 says, “The following records of criminal history may be disseminated by an agency of criminal justice without any restriction pursuant to this chapter.” Ms. Carrillo stated law enforcement would have to provide any records they had locally where chapter 481 was only asking for registration, names, and so forth.
Alfredo Alonso, Lobbyist, Lionel Sawyer & Collins, and Nevada Resort Association, and Nevada Beer Wholesalers Association c/o Bonanza Beverage, stated although the Nevada Resort Association was not taking a position at this time, the board of directors was looking at the bill. In the post-September 11, 2001 era, there were many security concerns, particularly in the megaresorts where there were thousands of people in a building at one time. Mr. Alonso said resort security personnel did support S.B. 41. He stated a willingness to work with the bill sponsor and LVMPD to draft a mutually agreeable bill for all concerned.
Senator Care asked whether the Nevada Resort Association interpreted the bill to mean nothing in it permitted the resort to search the vehicle or hold the particular questionable vehicle.
Mr. Alonso replied he understood the intent of the bill was to obtain information, and it would be a cooperative effort with the police department.
Vice Chairman Washington closed the hearing on S.B. 41 and opened the hearing on S.B. 50, relating to tobacco products.
SENATE BILL 50: Authorizes state agencies and local governments to adopt more stringent restrictions governing tobacco and products made from tobacco than restrictions imposed pursuant to state law under certain circumstances. (BDR 15-260)
Senator Rawson stated he was currently chairman of the Task Force for a Healthy Nevada. He said the task force already heard testimony concerning the impact of NRS 202.249 on the ability of local governments to affect the use, sale, distribution, marketing or promotion of tobacco products. He continued, the statute prohibited any agency, board, commission, or political subdivision of Nevada from imposing more stringent restrictions than the State imposed by statute.
Senator Rawson remarked Nevada’s two most populated counties were concerned about their lack of ability to regulate tobacco products, and elected to place an advisory question on the ballot in the November 2002 election relating to local control of tobacco use. In both jurisdictions, the voters voted in the general election to advise the Nevada Legislature to change State laws that prohibited city and county governments from passing laws that restrict smoking to a greater extent than State law. Senator Rawson distributed a copy of the election results, Exhibit D, to committee members. He reported Clark County voted 57.3 percent in favor of the question:
Should the Clark County Board of Health be able to adopt regulations that are stronger than state law in order to protect people from secondhand smoke? (This does not include businesses that exclude persons under the age of 21.)
Senator Rawson advised the percentage of votes against the question was 42.7 percent. He said essentially the same question was asked in Washoe County, where the vote was 59.2 percent in favor, 40.8 percent opposed. He pointed out this was an advisory question only, but due to the high percentage of people expressing a desire for more local control over tobacco use, the task force heard testimony on the issue.
Senator Rawson said he would share comments from the school districts. He remarked school representatives stated Nevada’s preemption law continued to be a barrier to moving forward with any restriction in school districts and cited the recent example of the Clark County School District being prevented from passing a smoking ban on school campuses due to existing state law.
Senator Rawson distributed Exhibit E, titled “The Tobacco Industry on Why It Needs Preemption,” saying it was a quotation from the Journal of the American Medical Association in 1995, by a former Tobacco Institute lobbyist. He said members of the task force agreed the State preemption law prevented local governments from acting to reduce consumption and to protect nonsmokers from a significant health risk. Accordingly, Senator Rawson stated the task force recommended the Legislature amend NRS 202.249 to authorize local governments or other government bodies to impose restrictions on use, sale, distribution, marketing, or preemption of tobacco or tobacco products that were more restrictive than State statutes. He commented in particular, the advisory question pertained to boards of health.
Senator Rawson explained as he read the language of the bill, it used existing references to any agency, board, commission, or political subdivision. He said there might be concerns not all of those were elected bodies. He told the committee if it wished to restrict the bill to elected bodies, such as a school board or a county commission, acting on the advice of a board of health, it would be acceptable to the task force.
Senator Care remarked the second ballot question on the Clark County and Washoe County ballots prohibited smoking in certain places. He expressed his opinion the first question could not be discussed without discussing the second, which he noted passed by larger margins than the first. Senator Care referred to S.B. No. 258 of the 71st Session that covered the same subject. He said the bill prompted the question, “If we give you the authority, what will you do with it?” According to Senator Care, the response was a nebulous, “We are not sure; we are waiting for you to give it to us first.” Senator Care asked if Senator Rawson could give a more satisfactory response to the same question. Senator Rawson answered others could speak to the question, but he was not sure whether local board or commission responses could be predicted. He added there was a groundswell from the public requesting more stringent requirements.
Scott M. Craigie, Lobbyist, Nevada State Medical Association (NSMA), expressed the NSMA’s support of S.B. 50. He remarked the complete preemption of local governments in the area of tobacco and tobacco use was unique in public health law and had been held out separate and different from the way other areas had been managed. Mr. Craigie read parts of the last paragraph of his testimony, Exhibit F: “[S.B. 50] is reasonable and measured…. It permits local school districts, City Councils, County Commissions, library boards, and other entities to consider alternative policies for other settings.”
Mr. Craigie added passage of S.B. 50 was an important step in dealing with the single greatest cause of preventable illness and deaths in the State of Nevada. He said the physicians of the NSMA urged passage of S.B. 50. Mr. Craigie stated this bill was reasonable because it retained at the State level the exclusive authority to regulate businesses that exclusively served alcohol and gaming establishments. He concluded by remarking this was a measured step, which was an important concept to keep in mind.
Senator Care referred to a bill on cellular telephone use that would allow only the State to set parameters on the use of cell phones in vehicles; in other words, take away local government authority. He also mentioned a bill, slated to be heard the next day, that would allow certain counties to enact measures more stringent than State law on the use of firearms. He asked if Mr. Craigie knew what requirements would allow the Legislature to release existing authority to a local body on anything. Mr. Craigie answered he also represented Sprint, which was in the cellular telephone bill Senator Care referenced, and he believed there was consistency in what was happening on the cellular phone bill and the tobacco use bill. The problem with having the local entity define restrictions for the use of a cell phone, according to Mr. Craigie, became a serious and difficult enforcement issue. In all other areas, the local community would be able to offer choices without infringing on the consumer as they make decisions in other jurisdictions.
Kendall Stagg, Lobbyist, Nevada Tobacco Prevention Coalition and American Cancer Society, said in a state like Nevada, where there was local control over just about everything, including gaming, alcohol, and prostitution, it seemed absurd there would not be local control over tobacco. According to Mr. Stagg, preemption was nothing more than a tobacco industry relief measure. He mentioned part of the upcoming testimony from the American Cancer Society included an affidavit from a former tobacco industry lobbyist. In the affidavit, the lobbyist openly acknowledged preemption was the industry’s No. 1 political priority nationwide, and it was nothing more than a relief measure for big tobacco. Mr. Stagg submitted documents to the committee (Exhibit G. (Original is on file in the Research Library.), from the American Medical Association and The Journal of the American Medical Association, which discussed preemption in the tobacco industry.
Mr. Stagg answered a question asked earlier by Senator Care about what communities could do with local control, by suggesting local communities could ban smoking in arcades and allow school districts to adopt policies regarding tobacco use on campus. He remarked there were others present who would have actually liked to see the bill strengthened, and he urged passage of S.B. 50.
Senator Amodei asked if Mr. Stagg had a preference, knowing there would be several measures coming before the committee dealing with this issue, for one bill over another. He clarified he was asking Mr. Stagg this question in the context of efficiency of the committee. Mr. Stagg answered he had discussions with other sponsors of similar bills to bring the bills in line with each other so they could focus on one bill. He mentioned some of the documents on tobacco industry letterhead state tobacco industry lobbyists should pressure senators and advocates against smoking to compromise away the preemption part of their bills. Mr. Stagg added the tobacco industry would prefer a statewide ban on smoking to loss of preemption.
Senator Amodei requested clarification of Mr. Stagg’s answer to his question. Mr. Stagg answered no, he did not have a preference for one bill; there were benefits to both S.B. 50 and a proposed county bill regarding tobacco use.
Senator Titus mentioned she had heard Mr. Stagg say several times that preemption kept his organization from protecting children, and asked how preemption did that. Mr. Stagg answered inroads were being made to youth access and prevention. However, he pointed out state law typically set a minimum of protections, and local authorities were allowed to set more stringent measures that made sense for those areas. Mr. Stagg noted Nevada had three distinct geographic locations, and what would work in Clark County, would not necessarily fit in Fallon, for instance. Mr. Stagg said there were smoke-free school policies; however, the Clark County School District’s policy was not adopted due to preemption.
Senator Titus requested clarification that preemption would apply to penalties for selling tobacco products to minors. She asked if there were separate laws dealing with this aspect of tobacco law. Mr. Stagg replied Nevada had the most stringent preemption law in the nation; it preempted every aspect of tobacco issues. He added local municipalities were prohibited from making any rule, law, or regulation whatsoever dealing with tobacco.
Barbara Lee Hunt, RN, MPA, Lobbyist, Washoe County District Health Department and Washoe County District Board of Health, spoke in support of S.B. 50, with modifications to reflect the opinions expressed by 59 percent of Washoe County voters, who supported the ability of local authorities to adopt regulations stronger than State law in order to protect people from secondhand smoke. She submitted a letter in support of her testimony (Exhibit H). Ms. Hunt said her concern was with the language in section 2, subsection 5, paragraphs (a) and (c) of S.B. 50, which appeared to restrict local authority in areas such as grocery stores, restaurants, convenience stores, and other places frequented by children as well as adults. In closing, Ms. Hunt urged the committee to pass S.B. 50 with modification of the language as suggested, to reduce loopholes and define it more narrowly.
Kris Parraguirre, Tobacco Education Coordinator, The American Lung Association, stated Nevada had the highest rate of asthma in the country. She distributed Exhibit I. Ms. Parraguirre noted exposure to secondhand smoke would worsen the condition of any one of Nevada’s 64,000 asthmatic children. Ms. Parraguirre pointed out preemption prohibited Nevada’s communities from protecting its children from secondhand smoke. She urged passage of S.B. 50.
Senator Care asked whether Ms. Parraguirre was looking at smoking as an irritant or a health hazard, and if as a health hazard, how it was perceived in a restaurant or a government building.
Mr. Stagg answered, “Secondhand smoke is a serious health hazard.” He said the Environmental Protection Agency had listed secondhand smoke as a Class A carcinogen, which meant there was no known safe level of exposure to it in humans.
Martin Herman, Lobbyist, distributed his written testimony, Exhibit J, and stated he was a lung cancer survivor. He said both of his parents were heavy smokers, and he was subjected to secondhand smoke every day of his young life. His parents did not stop smoking until he was in his late teens. He became a musician, had his own band, and was once again exposed nightly to secondhand smoke. Mr. Herman developed lung cancer in 1998, even though he had never smoked cigarettes himself. His left lung was removed, and he underwent chemotherapy and radiation at an expense of over $125,000. He pointed out the high cost of health insurance premiums, which were often linked to the extensive treatment needed to combat the ill effects of smoking, as well as the costs to the State of Nevada for those who do not have health insurance. Mr. Herman urged the committee to rescind NRS 202.249 or “preemption.” He remarked in his opinion, the ability to enact laws regulating smoking should be relegated to local health departments rather than the political atmosphere of the State Legislature.
Robin D. Camacho, Lobbyist, American Heart Association, remarked the American Heart Association supported this and other bills, which protected children from secondhand smoke. She said last session the Senate passed a bill, which would have allowed those in charge of schools and public buildings to ban smoking, but it died in the Assembly Committee on Judiciary. In Ms. Camacho’s opinion, neither last session’s bill nor S.B. 50 went far enough. She told committee members they had the ability to pass meaningful legislation to prevent children from being exposed to secondhand smoke, and she urged them to do so.
Helen Foley, Lobbyist, Clark County Health District, stated the Clark County Health District applauded Senator Rawson and his efforts over the past several sessions to propose meaningful pieces of legislation towards reducing the use of tobacco in Nevada. Ms. Foley remarked this bill was not the bill proposed in response to the advisory questions of Clark and Washoe counties. She said that bill would be introduced next week. Ms. Foley pointed out one of the issues in the bill she believed to be problematic was the broad definition of a gaming establishment. She said it banned any type of local control over any kind of gaming establishment. Ms. Foley stated she agreed with the ban when it related to nonrestricted gaming establishments, but disagreed with it as it related to convenience and grocery stores. She said these were areas where the Clark County Health District would like to remove all use of tobacco. Ms. Foley would like to see tobacco use restricted to nonrestricted gaming establishments.
Vice Chairman Washington mentioned a bill passed one session that mandated restricted areas in grocery outlets for smoking, and asked what was different from the restrictions formerly imposed. Ms. Foley answered when the legislation requiring restricted smoking areas in grocery stores passed, it allowed two slot machines turned backwards to be considered a wall to prevent tobacco smoke from entering the rest of the shopping area. She explained in most grocery stores in Nevada, the gaming area was right in the front of the store, and there was no way to escape tobacco smoke that had permeated into the rest of the store. Ms. Foley said even with sophisticated ventilation systems, not all carcinogens from the smoke went up the vents. According to Ms. Foley, secondhand smoke caused 30 times as many lung cancer deaths as all related air pollutants combined. Ms. Foley called for banning tobacco smoke in all but exclusively adult‑frequented locations.
Senator Care mentioned the ballot issues regarding tobacco use made no mention of smokeless tobacco, and asked if S.B. 50 referred only to the smoke from cigarettes, cigars, and so forth. Ms Foley answered affirmatively, adding the bill referred only to a ban on secondhand smoke.
Ashley Bauer, Carson City High School Student, Teens Against Tobacco Use, introduced herself and Maria Urbina, saying they were speaking in favor of S.B. 50. She read her testimony, Exhibit K.
Maria Urbina, Carson City High School Student Body President, Teens Against Tobacco Use, read the second part of Exhibit K, in support of S.B. 50. After testifying, Ms. Bauer and Ms. Urbina gave the secretary two handouts from “Americans for Nonsmokers’ Rights,” which were included in Exhibit K.
Carolee Ames, Concerned Citizen, Volunteer, St. Rose Dominican Hospital, Henderson, said she strongly supported S.B. 50. Ms. Ames stated tobacco had devastated her life. She told of her acute peripheral artery disease and eight vascular surgeries totaling approximately $750,000. Ms. Ames believed this bill was critical to protecting other Nevadans and urged the committee to pass S.B. 50.
Mary F. Lau, Lobbyist, Retail Association of Nevada, spoke against S.B. 50. Ms. Lau remarked there was public policy to consider, and public policy included health issues. She said when talking about tobacco and preemption, the tobacco companies had not been in this issue since 1995. According to Ms. Lau, retailers and tobacco companies came to the table in 1995, and funds through the federal system were at risk then. Ms. Lau said she believed the legislation passed in 1995 was good, and as a result Nevada sold tobacco in responsible ways. She commented retailers were asking for the ability to responsibly sell an adult product. Ms. Lau emphasized retailers did not want tobacco given or sold to children, and they had taken every step to ensure the success of the program to end underage smoking. She defended retailers’ rights to make responsible business decisions regarding allowing tobacco use on their properties.
Mr. Alonso stated on behalf of thousands of customers throughout the State of Nevada who echoed the Retail Association of Nevada’s remarks, what had been heard today was a debate on smoking, and that was not what the issue was about. He clarified the issue was policy regarding who determined what route the State would go with respect to smoking in its businesses. Mr. Alonso disagreed with remarks made earlier in the hearing of no local control over smoking. He remarked current law stated it was illegal to smoke in a public elevator or a public building of any kind. He also pointed out under section 3, subsection 2, paragraph (b) of S.B. 50 it stated, “… may designate separate rooms or portions of the area which may be used for smoking.” He emphasized the word “may,” and said for the most part, there was no smoking allowed in public buildings, which included schools. He reiterated this was not a policy issue on smoking, but on what businesses can do with their own businesses.
Peter D. Krueger, Lobbyist, NV Petroleum Marketers & Convenience Store Association, stated his organization’s position was the same as expressed by others who had testified against S.B. 50, but said he believed it important to restate that current law allowed business owners, business managers, and people in charge of facilities, to make a decision. The current law was working, asserted Mr. Krueger. He said under current law, the only people being penalized for selling tobacco products to underage people were retail clerks and business owners. Mr. Krueger stated he would like to see all bills regarding this issue consolidated into one, and said his organization would offer amendments to prohibit the sale to, and use of, tobacco products by minors.
Van V. Heffner, President and Chief Executive Officer, Nevada Hotel & Lodging Association and Nevada Restaurant Association, remarked he also served as a tourism commissioner for Nevada. Mr. Heffner reported the Nevada Hotel & Lodging Association (NHLA) represented 115,000 rooms and 182 hotel casinos and properties. He said NHLA also represented over 700 restaurants statewide, employed over 160,000 employees, and was the number one employer in Nevada. Mr. Heffner offered his opposition to S.B. 50 and encouraged the committee to not preempt the State to authorize State agencies and local governments to adopt more stringent restrictions. He remarked Nevada would be greatly impacted with such a decision in light of Nevada’s reputation for freedom of choice. Mr. Heffner also asserted passage of S.B. 50 would create confusion and economic challenges for each person in Nevada due to the variety of jurisdictions with differing policies throughout the state.
Mr. Heffner said he served on Nevada’s Food Safety Task Force, addressing public policy on food safety and security. He stated one of the greatest challenges on the Food Safety Task Force was to reach a consistent policy among four different health district departments, all with different policies. He strongly urged the committee not to remove the preemption.
Senator Care told of the voters of Henderson rejecting a bond issue for libraries, and Clark County voters saying “no” to the creation of a trust fund for the homeless. He continued, statewide voters rejected sales tax exemptions for the sale of agricultural machinery and certain racing equipment. Senator Care pointed out if the Legislature were bound by the results of ballot questions, they would not be raising taxes; yet he had the idea they would be raising taxes this session. Senator Care asked how Legislators should respond to their constituents when they had undeniably overwhelming ballot results. Mr. Heffner commented in his opinion it was about education. He said there were two misleading items on the ballot in the general election. One said all public buildings in Nevada are nonsmoking including schools, and it stated so in the law and in S.B. 50. According to Mr. Heffner, when people were voting on the ballot question, it listed all public buildings and schools, which was very misleading. He stated we all must educate ourselves, our children and our grandchildren, and offered to help in any way to educate people regarding this issue.
Ms. Lau remarked another reason she would like to see all smoking-related bills held was so they might be debated together. She noted S.B. 50 did not specifically address the advisory questions on the ballot in the November 2002 election. Ms. Lau said in her opinion, hearing all related bills together would clear up confusion and help all concerned determine what the current law was and what changes were being proposed. Vice Chairman Washington requested Ms. Lau have her staff outline what had been done since 1995, so the committee would have an understanding of the statutes that have passed.
In response to Senator Care’s question about how to respond to his constituents, Mr. Krueger stated one of the things the committee could do was tell their constituents they dealt with the issue of youth access one more way, by prohibiting the sale to and use of tobacco products by underage children.
Senator Nolan stated he disagreed somewhat with Mr. Alonso’s comment that the committee could have this discussion as a policy issue without discussing the behavior and characteristics of people who smoke. He asked what the foreseeable impact on business would be if this bill did pass. Mr. Krueger answered the way S.B. 50 was written, his convenience stores, because they were gaming establishments, were exempt. Mr. Alonso responded any agency, board, commission, or political subdivision of the State would be able to make such a decision. He noted this would include homeowners associations. This bill could create a situation where smoking would be allowed in a county, but not in a homeowners association within the county. Mr. Alonso maintained passage of S.B. 50 could be confusing to a state with a tourist economy such as Nevada, where the law changed as tourists traveled from city to city and county to county.
Vice Chairman Washington apologized to Dawn Lofgreen for overlooking her name on the sign-in sheet, and asked her to step forward to testify in favor of S.B. 50.
Dawn Lofgreen, Prevention Specialist, Vitality Center, Nevada Tobacco Prevention Coalition (NTPC), testified she had traveled from Elko to represent the Vitality Center, the NTPC, and most importantly, Elko County and rural Nevada. She asked if Nevadans wanted someone from the outside coming in and controlling what goes on in their homes. She answered, “no, of course not.” Ms. Lofgreen stated tobacco control should be at the local level, because what works in one community does not necessarily work in all rural communities. She reported in Nevada alone, 31,000 living children would die from tobacco use. In 1999, Nevada had the highest percentage of current smokers of any state in the nation. Ms. Lofgreen told the committee by supporting S.B. 50 they would be contributing to the well-being and future of Nevada. She added, secondhand smoke caused approximately 3,000 lung cancer deaths and 35,000 heart disease deaths in nonsmokers every year. She concluded by urging passage of S.B. 50 to “clear the air.”
Mitzi Johnson, Girl Scouts of Frontier Council, Las Vegas, stated the Girl Scouts of Frontier Council were members of the Nevada Tobacco Prevention Coalition, and she was at the hearing to speak in favor of S.B. 50. Ms. Johnson remarked young girls were the fastest-growing population of new smokers due to targeted marketing. She said she appreciated the opportunity to make a local impact. Ms. Johnson commented she became involved in this issue due to a giant billboard just outside the middle school her daughter attended. She pursued the source of the large smoking ad and found nobody had the right to make laws regarding this type of advertising due to preemption. Ms. Johnson concluded by stating local control was important and urged the committee to vote for S.B. 50.
Vice Chairman Washington closed the hearing on S.B. 50 and opened the hearing on S.B. 40.
SENATE BILL 40: Prohibits discharge of firearm from structure, vehicle, vessel or aircraft under certain circumstances. (BDR 15-887)
Senator Mark E. Amodei, Capital Senatorial District, remarked he was requested to introduce S.B. 40 by a constituent. He said it emanated from the fact existing statutes in NRS 202.285 made it illegal to discharge a firearm at or into any room, barn, or structure. Senator Amodei continued, Nevada did not have a prohibition against discharging a firearm out of any of those things. Therefore, the bill drafters had drafted an amendment to NRS 202.287, which was the next section in the “Crimes Against Public Health and Safety” chapter that attempted to make it illegal. He stated the operative lines were on page 1 of the bill, line 4, which stated, in effect, a person who is inside and who willfully and maliciously discharges a firearm from a structure, as opposed to into it, which was present law in NRS 202.285. Senator Amodei said there was also some cleanup in terms of “aircraft, vehicle, those sorts of things,” which would make such conduct specifically illegal.
Senator Amodei said he had been approached for a friendly amendment to S.B. 40 by a lobbyist who had concerns about the workings of the State Department of Agriculture and the State Board of Sheep Commissioners. He commented he did not object to the amendment, to be added to subsection 3 on page 2 of S.B. 40, as a new paragraph (d). He advised he would submit the language to committee counsel in the event the committee passed the bill.
Gayle Farley, Concerned Citizen, submitted her written testimony (Exhibit L) and remarked S.B. 40 piggybacks onto NRS 202.285, which was the law stating if a person shot a gun into a building, it was a felony; if a person was in a building and shot a gun out of the building, it was a misdemeanor. Ms. Farley informed the committee the reason she was at the Legislature was because her daughter was murdered on October 22, 1999, by a man who had pointed a gun at people several times, but never went to jail, and had shot a gun at his ex-wife in the house at one time and never went to jail. Ms. Farley declared the man did not go to jail due to the fact the law was written too leniently to deal with discharge of a weapon from inside a building. She requested the committee review and pass S.B. 40.
Don Henderson, Acting Director, State Department of Agriculture, expressed his appreciation for Senator Amodei’s submission of the proposed amendment, and stated his opinion the proposed amendment would address his department’s concerns. Additionally, Mr. Henderson said the way the bill was currently worded would prohibit an important activity of his department, that of animal damage control, found in chapter 567 of NRS. He concluded by offering to provide additional information as needed.
Robert H. Beach, State Director, USDA-APHIS-WS, State Predatory Animal and Rodent Committee, State Department of Agriculture, stated he was at the meeting to answer questions concerning the need for his suggested amendment, Exhibit M. Mr. Beach gave an example of why his amendment was necessary. He was working at the Exotic Newcastle Disease Project, where his employees were required to use firearms to collect escaped animals at the site. Mr. Beach said exempting certain state and federal workers whose jobs required the use of firearms would allow them to do their jobs.
Stephanie D. Licht, Lobbyist, Nevada Woolgrower’s Association and Elko County Commission, stated she also served as the executive secretary of the sheep commission in the past. She remarked the ability to control predators was important to Nevada, especially in light of the Sage Grouse Conservation Project.
Mr. Henderson stated he talked to Terry Crawforth, with Nevada Division of Wildlife on February 6, 2003, who expressed concerns about the existing bill and said the proposed amendment would not address those concerns.
Vice Chairman Washington closed the hearing on S.B. 40. He turned the meeting over to Chairman Amodei.
Chairman Amodei requested a motion to introduce Bill Draft Request (BDR) 1‑934, BDR 16-1005 and BDR 15-760 to the committee:
BILL DRAFT REQUEST 1-934: Makes various changes to provisions governing juries. (Later introduced as Senate Bill 73.)
BILL DRAFT REQUEST 16-1005: Authorizes State Forester Firewarden of Division of Forestry of State Department of Conservation and Natural Resources to determine amount of wages paid to certain offenders in conservation camps. (Later introduced as Senate Bill 72.)
BILL DRAFT REQUEST 15-760: Authorizes person who holds permit to carry concealed firearm issued by another state to carry concealed firearm in this state under certain circumstances. (Later introduced as Senate Bill 74.)
SENATOR MCGINNESS MOVED TO INTRODUCE BDR 1-934, BDR 16‑1005, AND BDR 15-760.
SENATOR WASHINGTON SECONDED THE MOTION.
THE MOTION CARRIED UNANIMOUSLY.
*****
Chairman Amodei adjourned the meeting at 10:33 a.m.
RESPECTFULLY SUBMITTED:
Jo Greenslate,
Committee Secretary
APPROVED BY:
Senator Mark E. Amodei, Chairman
DATE: