Articles from the “Legislative Wrap-up” issue of Communiqué (September 2015), the publication of the Clark County Bar Association: COMMUNIQUE-Sept-2015-web
- “The Uber Bumpy Ride to Catch a Lyft” by Aviva Y. Gordon, Esq.
- “SB 306: Recent Changes to Homeowners’ Association Foreclosures” by Lindsay Demaree, Esq.
- “SB 484 – Changes to Probate and Trust Law” by Alan D. Freer, Esq. and Jeffrey P. Luszeck, Esq.
- “Nevada Tax Law Changes for 2015” by Robert D. Grossman, Jr., Esq. and Derek N. Hatch, Esq.
- “Legislative Update for Construction Defect Matters” by Joshua J. Hicks, Esq. and Alisa Nave-Worth, Esq.
- “Legislative Updates Affecting Guardianship Matters in Nevada” by Homa Sayyar Woodrum, Esq.
- “Nevada Becomes the Second State in the Country to Offer Research Animals a Second Chance” by Jennifer L. Braster, Esq.
© 2015 The following articles were originally published in COMMUNIQUÉ, the official publication of the Clark County Bar Association. (September 2015, Vol. 36, No. 9). ll rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.
The Uber Bumpy Ride to Catch a Lyft
By Aviva Y. Gordon, Esq.
At the tail end of the 2015 Legislative Session, Governor Brian Sandoval signed AB 175 into law. The legislation which permits Transportation Network Systems, like Uber and Lyft, that connect passengers with drivers through smartphone apps, came after substantial legal wrangling that preceded the legislative session and several false starts within the Legislature.
In October 2014, Uber started operating its hailing system in Nevada. Almost immediately thereafter, the Nevada Taxicab Authority and the Nevada Transportation Authority sought to terminate Uber’s activities. The Nevada Attorney General’s Office commenced legal action against Uber seeking injunctions in Washoe and Clark counties, as well as Carson City, since violations were occurring in all three jurisdictions. Given the multi-jurisdictional attack, Uber’s attorneys asked the Supreme Court of Nevada to determine which Court had jurisdiction to hear the matter. Ultimately, the Supreme Court decided that jurisdiction was with the 2nd Judicial District Court in Washoe County since that was where the first action was filed. The 2nd Judicial District Court immediately entered a preliminary injunction prohibiting Uber from conducting business within the State of Nevada.
Undeterred and actively supported by off-strip businesses, the Henderson Chamber of Commerce, as well as others who have long-complained about the lack of service provided by existing taxicab licensees, Uber moved its focus to the Legislature. During the 2015 Legislative Session, the legislation that would ultimately result in AB175 was killed, revived and killed again. A herculean push at the end of the Session was eventually successful.
Ultimately, both Legislative Houses came together and presented Governor Sandoval with a bill that allowed for a “Transportation Network Company” to legally do business within Nevada, under the authority of the Nevada Transportation Authority. Among other things, every Transportation Network Company or driver is required to have insurance in varying amounts from $25,000 to $1,500,000 dependent on whether the driver is providing transportation services or is merely logged onto the system, but not transporting a customer. There are additional insurance provisions to address when the driver is using his or her private vehicle completely outside of the services of the Transportation Network Company and mandated cooperation among all insureds and insurance carriers. Beyond carrying the requisite insurance, drivers must be at least 19 years old; have a valid driver’s license, be subject to annual review of driving history, and criminal background check every three years.
The legislation includes protections, beyond insurance coverage, intended for consumers. AB 175 mandates that the Transportation Network Companies must disclose the rates charged and the method of the calculation of fares on the company’s website or App. Furthermore, the company must provide the customer with an estimate of the amount of the fare prior to the passenger’s entry into the car. The companies and drivers may only accept electronic payment and not cash. There are other protections created to prevent deceptive practices or long hauling.
The right for the Transportation Network Companies to do business comes at a price which also affects the existing common carriers within the State. The Legislature provided that the Public Utilities Commission shall issue permits to both the Transportation Network Company as well as to the drivers. There are, of course, fees associated with the issuance of such permits which are based upon the gross operating revenue derived from the Company’s operations. In a broad effort to raise additional revenue, AB 175 amended Chapter 706 of Nevada Revised Statutes to create an excise tax on all common carriers (thus the Transportation Network Companies as well as existing taxicab and limousine services) of three percent of the total fare charged to a passenger. The “total fare” includes all fees, surcharges, technology fees, convenience charges for the use of a credit or debit card and any other amount that is part of the fare. The first $5,000,000 received from the excise tax, every two years, is designated to go to the State Highway Fund. The balance is to go to the State General Fund.
The legislation takes effect October 1, 2015. Between now and then, the Nevada Transportation Authority has the daunting task of creating the regulations that will be necessary to bring the Uber and Lyft to the streets of Nevada.
Aviva Gordon, Esq. has represented businesses throughout Nevada for more than 20 years in all aspects of strategic planning, transactions, business entity formation and maintenance, employment practices and litigation. She may be reached at AGordon@GordonLawLV.com. Note: This article will appear in the October 2015 print edition.
SB 306: Recent Changes to Homeowners’ Association Foreclosures
By Lindsay Demaree, Esq.
This legislative session, the Nevada Legislature passed Senate Bill 306. See https://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB306_EN.pdf. This bill amends NRS 116.3116 et seq. (the “Statute”), which authorizes homeowners’ associations to foreclose on property to recoup unpaid assessments. None of SB 306’s amendments alters the Nevada Supreme Court’s holding that the Statute affords association liens “superpriority” status. See SFR Investments Pool 1, LLC v. U.S. Bank, 130 Nev. Adv. Op. 75, 334 P.3d 408 (2014). Instead, the legislature opted to add comprehensive protections for junior lienholders and to clarify several foreclosure requirements.
Right to Cure and Right to Redeem
Perhaps the most significant addition is SB 306’s right to cure and right to redeem for junior lienholders. See SB 306, sec. 6. Under the amendment, a junior lienholder can cure an association’s lien before a foreclosure sale by paying the amount of the association’s lien that has priority over the junior lien. The junior lienholder may cure up to five days before the date of the association’s foreclosure sale and treat the cure amount as a debt due from the delinquent homeowner. While the association still may proceed with a foreclosure sale for any remaining portions of its lien, the sale will not extinguish the curing party’s lien.
If a junior lienholder does not cure, it may redeem the property for up to 60 days after an association foreclosure sale. Unlike curing, which merely keeps a junior lien intact, redemption gives the junior lienholder title to the property. To redeem, the junior lienholder must pay the foreclosure sale purchaser the purchase price and other costs related to the property. The redeeming lienholder must also pay off any liens that have priority over the redeeming party’s lien (other than the association’s foreclosed lien). After making these required payments, the redeeming party must serve the purchaser and association with a notice of redemption, certified copies of documents showing the redeeming party’s interest in the property, and an affidavit stating the amount due on the redeeming party’s lien. The association must then deliver to the redeeming lienholder a deed without warranty that conveys all of the unit owner’s title.
Amendments to Notice Requirements
SB 306 also amends the Statute’s notice requirements. See SB 306, sec. 2. An association’s notice of default and election to sell now must explain how the association calculated its superpriority lien, delineating the superpriority amounts attributable to delinquent assessments, costs to abate a public nuisance or maintain a home’s exterior, and costs to enforce the association’s lien. The legislature did not extend this change to an association’s notice of sale, however. The notice of sale must provide only “the amount necessary to satisfy the lien,” without differentiating between priority and non-priority lien amounts.
In addition, SB 306 requires a foreclosing association to mail a copy of the notice of default and election to sell, and a copy of the notice of sale, to each holder of a record security interest encumbering the property on which the association will foreclose. Before a foreclosure sale, the association (or its agent) must then record an affidavit identifying the secured parties and addresses to which the notices were mailed. To ensure notice is sent to a secured party’s correct address, the amendment requires certain financial institutions to provide the Nevada Division of Financial Institutions with a contact address, which an association must use.
Other notable changes include the following:
- The association can include costs of enforcing its lien as part of its superpriority lien, but SB 306 caps these costs at specific amounts.
- The three year statute of limitations and the nine month time frame for superpriority delinquent assessments are now determined by reference to the date on which the association records its notice of default and election to sell. This change eliminates vague references to the date that the association “institute[s] an action” or “proceedings to enforce” its lien.
- An association or its agent is not required to be licensed as a debt collection agency to collect delinquent assessments.
See SB 306, sec. 1.
SB 306’s revisions to the Statute apply to association foreclosures after October 1, 2015. See SB 306 sec. 9. While this legislation may not resolve the scores of association lien cases currently pending in Nevada courts, its clarifications and protections for lienholders should nevertheless curb future litigation.
Lindsay Demaree is an attorney at Ballard Spahr LLP, where she litigates homeowners’ association lien disputes and other issues for consumer financial services providers.
SB 484 – Changes to Probate and Trust Law
By Alan D. Freer, Esq. and Jeffrey P. Luszeck, Esq.
SB 484, which becomes effective October 1, 2015, makes various changes to probate and trust law. SB 484 was drafted by the Probate and Trust Law Section of the State Bar of Nevada. Although the bill provides omnibus amendments to NRS Titles 12 and 13, most provisions are designed to minimize litigation and reduce the cost and expense to the parties. Generally, these amendments fall into three broad categories: (1) clarifying and unifying existing law to reduce legislative ambiguity and promote consistency for the probate and trust administration process; (2) providing nonjudicial alternatives to trust and estate administration; and (3) continuing Nevada’s front runner status with respect to evolving areas of trust and estate law such as decanting and directed trusts.
1. Clarifying/Unifying Existing Law
Examples of clarification of existing laws are found in Section 3 of the bill (clarifying the effective date of a divorce or annulment on non-probate transfers for NRS 111.781) and 35 (expanding the definition of vexatious litigant). Likewise, Sections 13 and 64 clarify the legal effect of a pre-death declaratory judgment regarding the validity of a will and concerning the titling of trust assets. Similarly, several sections (4-11; 35.1-7) clarify definitions contained in NRS Chapter 132, including notable provisions defining an “interested person” and clarifying that a “domestic partner” possesses the same rights as a spouse.
Other notable amendments under this category include clarifications to Nevada’s presumptive undue influence statute (NRS 155.094 et seq). Most notably, SB 484 unifies the presumptive undue influence statute to cover not only transfers taking effect upon death, but also lifetime transfers.
Similarly, various sections of SB 484 (namely 25, 58-59, and 63) provide clarification concerning personal and in rem jurisdiction of the probate court.
Perhaps most notable under this category is the overhaul and unification of the intervivos and testamentary trust accounting statutes. Sections 70-84 of SB 484 completely revise NRS Chapter 165 and provide uniform accounting requirements for all trusts, including clarifying when a trustee has a duty to account, who is entitled to receive an accounting, and the timing and format of such accounting.
2. Non Judicial Administration Alternatives
In addition to clarification and unification, SB 484 also provided several amendments designed to provide parties nonjudicial alternatives to administer trust and estates and to resolve disputes. For example, with respect to probate administration, Sections 1 and 2 of SB 484 provide amendments to NRS 40.515 and NRS 111.365 to allow termination of a life estate in real property by recording an affidavit and providing a certified death certificate in lieu of the traditionally required court order. Likewise, Sections 18 and 19 amend NRS 144.010 and 144.020 by allowing the court or all interested parties to waive the requirement of preparing and filing an inventory or appraisal during probate administration.
Concerning trust administration, Section 45 of SB 484 provides new law to allow all current income beneficiaries of a trust to appoint a successor trustee without court approval in instances where trusteeship is vacant. Similarly, Section 47 of SB 484 adds new law to allow a trustee to terminate small trusts without court approval where the value is under $100,000. Additionally, Section 67 amends the notice of proposed action provisions of NRS 164.725 to apply to any aspect of trust administration and applies such provisions not only to a trustee, but also to trust protectors and trust advisors.
Regarding alternative dispute resolution, Section 60 of SB 484 provides new law to allow a trust or will to include binding arbitration provisions for any dispute other than the validity of such document. Likewise, Sections 61-62 also provide new law to allow nonjudicial settlement of disputes on other matters where all indispensable parties are in agreement.
3. Evolving Areas of Trust Law
Lastly, SB 484 provides several measures for estate planners to allow Nevada to stay at the forefront of evolving areas of trust and estate law. For example, Section 12 amends NRS 133.110 to allow for the disinheritance of a future spouse by name, which is commonly implemented in connection with prenuptial agreement planning. Likewise, Sections 40 and 41 modify NRS Chapter163 to add to the default powers of a trustee that can be included in a trust instrument. In the area of directed trusts, SB 484 clarifies current law pertaining to the liability of directing trust advisors and directed fiduciaries that are appointed in such directed trusts. Further, in the area of trust decanting, Section 57 amends NRS 163.556 to clarify who may decant a second trust, who may be beneficiaries of the decanted trust, and when such appointment is not allowed.
As stated above, most provisions of SB 484 are designed to effectuate the speedy settlement of estates, to minimize litigation, and to reduce the cost and expense to the parties. Due to the breadth of SB 484 it is impossible to go through each amendment in detail here. For a more detailed summary of the bill, the Executive Summary of SB 484 that was offered by the Legislative Committee of the Probate and Trust Law Section of the Nevada State Bar can be found at https://www.leg.state.nv.us/App/NELIS/REL/78th2015/ExhibitDocument/OpenExhibitDocument?exhibitId=15045&fileDownloadName=o0505_SB484_Catherine.OMara.pdf. The complete text of SB 484 can be found at http://www.leg.state.nv.us/Session/78th2015/Bills/SB/SB484_EN.pdf.
Alan D. Freer is a partner at the Las Vegas law firm of Solomon, Dwiggins & Freer Ltd., where he focuses his practice primarily on trust and estate litigation. Mr. Freer presently serves as co-chair of the Legislative Committee for the Probate and Trust Section of the Nevada State Bar.
Jeffrey P. Luszeck, Esq. is a partner at the Las Vegas law firm of Solomon, Dwiggins & Freer Ltd. His practice areas are primarily trust and estate litigation and small business litigation.
Nevada Tax Law Changes for 2015
By Robert D. Grossman, Jr., Esq. and Derek N. Hatch, Esq.
Earlier this year, the 78th Session of the Nevada Legislature approved the Nevada Revenue Plan. The Nevada Revenue Plan is a $1.4 billion tax package that consists primarily of four major tax changes extended over the next two years. The summary below provides a short overview of the most significant and applicable changes.
The Commerce Tax
The new “Commerce Tax,” effective July 1, 2015, is a gross revenue tax on many business entities with $4 million or more in annual Nevada gross revenues, less certain subtractions including distributions from pass-through entities, stock proceeds, and bad debts expensed on federal taxes, among others. The tax is collected annually (first return and payment due August 15, 2016 for fiscal year beginning July 1, 2015) and because the rate is based on the industry in which the business entity is “primarily engaged,” each business will be required to declare the industry they are primarily engaged in at the time of its first filing. Consequently, there are 26 different rates for the Commerce Tax ranging from 0.0151 percent to 0.331 percent. Industries already required to pay gross receipts taxes (gaming, mining, and insurance) are entitled to exclude any revenue subject to those taxes from the Commerce Tax. Lastly, businesses subject to the Commerce Tax will be entitled to a non-refundable credit toward their Modified Business Tax liability equal to 50 percent of their Commerce Tax liability beginning the first quarter after the first payment of the Commerce Tax is made. Businesses only have the immediately following four quarters to use up the 50 percent credit.
Modified Business Tax Expanded
The Nevada Modified Business Tax (MBT), a payroll-based tax, has been expanded and broadened to 1.475 percent (up from 1.17 percent) on wages that exceed $50,000 per quarter (down from $85,000). The MBT was previously scheduled to decline to 0.63 percent for businesses other than financial institutions beginning July 1, 2015. Mining companies and financial institutions will pay the higher 2 percent tax rate.
Live Entertainment Tax
Since it was approved by 20th Special Session of the Nevada Legislature in 2004, Nevada’s Live Entertainment Tax (LET) had been imposed on admission, food and beverage, and merchandise at venues where live entertainment is provided and admission is charged. In an effort to simplify a tax ladened with exemptions, a single 9 percent tax rate must now be charged on all admission fees to venues with live entertainment with an occupancy limit over 200 people. The 9 percent tax replaces the two previous rates. Food, beverages, and merchandise are no longer taxed. This revised LET will be effective October 1, 2015.
Passenger Transportation Tax
The Passenger Transportation Tax (PTT) is a 3 percent tax on all fares which includes any service charges, including credit card charges. The PTT applies to taxicabs, common motor carriers, and ridesharing companies such as Uber and Lyft.
Other Notable Changes
- Effective July 1, 2015, the excise tax charged on a pack of cigarettes will increased from .80 cents to $1.80.
- The annual state business license fee will increase from $200 to $500 per year effective July 1, 2015.
- This legislative session made permanent the .35 percent Local School Support Tax.
Robert D. Grossman, Jr. is a tax attorney at Tax Law Center, LLC, in Las Vegas, Nevada. Mr. Grossman has a B.A. in economics from the University of Virginia and a J.D. from the University of Florida. Mr. Grossman also has an LL.M. in taxation from New York University and was formerly a trial attorney for the IRS, Office of Chief Counsel, Tax Court Litigation Division, Trial Branch, in Washington D.C. Mr. Grossman left that office as a Senior Trial Attorney and has been in his own law practice for the last 40 years where he represents taxpayers before the IRS and in tax planning.
Derek N. Hatch is an attorney at Tax Law Center, LLC and represents clients before all federal and state tax agencies, including the IRS and Nevada Department of Taxation. Mr. Hatch previously served as a law clerk for the City of Henderson Attorney’s Office and the U.S. Attorney’s Office for the District of Nevada. Mr. Hatch is a graduate of Brigham Young University and received his law degree from Chapman University School of Law. Mr. Hatch also holds an LL.M. in taxation.
Legislative Update for Construction Defect Matters
By Joshua J. Hicks, Esq. and Alisa Nave-Worth, Esq.
Approaching Nevada’s 78th legislative session, the homebuilding industry had hopes that 2015 would finally be the year to bring meaningful reform to construction defect (“CD”) laws in the state. For 20 years, the Nevada State Legislature has been discussing and debating how to manage CD litigation, passing laws beginning in 1995 in an effort to alleviate some of the legal issues faced by homeowners and homebuilders navigating CD claims. These CD laws, commonly known as “Chapter 40,” were supposed to provide homeowners and homebuilders with an alternative to litigation—a process by which they could resolve CD claims without the costs and delays inherent in litigation. However, certain aspects of CD law were ripe for abuse. For example, Nevada law included attorneys’ fees and costs in the calculation of damages on CD claims, effectively creating an entitlement to fees and costs, even if grossly disproportionate to the actual damage to a home. Additionally, the definition of a “constructional defect” was broad and did not require any damage or even a threat of damage to a home.
Unsurprisingly, these and other aspects of Nevada CD laws turned a system that was supposed to promote early resolution into a system that incentivized litigation and delayed resolutions. A UNLV study found that the number of CD claims in Nevada was 38 times higher than the national average. Stephen P. Brown & Ryan Kennelly, The Nevada Housing Market: Prospects for Recovery 2013, UNLV Center for Business and Economic Research, Feb. 2013. A well-publicized case saw an award of attorney’s fees that were almost 20 times greater than damages awarded to homeowners. Aventine-Tramonti Homeowners Assn. v. Vanguard Piping System, Inc., et al., Case No. 08A555328 (8th Jud. Ct. Jan. 17, 2014). In extreme cases, criminals commandeered homeowner associations in order to file CD cases, collect fees and costs, and direct lucrative repair contracts to their associates.
The passage of Assembly Bill 125, which was signed into law by Governor Sandoval on February 24, 2015, ushered in meaningful changes to CD law. Attorneys’ fees are no longer an entitlement, but instead are treated the same way as in other civil matters. A constructional defect now requires either damage to a home or an unreasonable risk of damage to persons or property. The statute of repose for CD claims was set at six years. Homeowners associations can no longer bring CD claims except for common areas. A notice of defects must be specific and identify defects on a per home basis. Finally, certain types of indemnification provisions are no longer allowed in residential construction contracts, helping to ensure that innocent contractors are not trapped in litigation.
The common-sense reforms in Assembly Bill 125 will restore balance to construction defect litigation in Nevada. More importantly, homeowners with legitimate problems will have an avenue to an early resolution of those issues, and the original intent of the law will be restored.
Joshua J. Hicks, a shareholder at Brownstein Hyatt Farber Schreck, focuses his government affairs practice on representation before the Nevada State Legislature, local governments, and state government agencies. He practices in all aspects of Nevada campaign finance and election law, including all aspects of ballot initiatives.
Alisa Nave-Worth, a senior policy advisor and counsel at Brownstein Hyatt Farber Schreck, is a seasoned attorney and advocate and has extensive legal, political, and public policy experience in the state, which she brings to bear implementing and advocating legislative strategies before state and local agencies for a wide range of corporate clients.
Legislative Updates Affecting Guardianship Matters in Nevada
By Homa Sayyar Woodrum, Esq.
Guardianship is a legal framework for the substitution of an individual’s financial and/or personal decision making by reason of incompetence. Incompetence can be due to minority or a determination of incapacity (mental illness, debility, dementia, etc. as determined by medical guidelines). The party ideally protected has historically been referred to as the “ward” (the most recent statutory changes in Nevada use “adult” and “minor”), while the decision maker is the “guardian.”
In 2015 Nevada, two major public concerns about guardianship manifested in Assembly Bill 325 and Senate Bill 262.
AB 325, effective January 1, 2016 as adopted, tackled calls for requiring licensure and other regulation of people and businesses serving as “private professional guardians” – guardians who are not a friend or relative of the ward, a fiduciary, or Public Guardian. AB 325 adds new provisions to Title 54 of the NRS and is easy to read through as passed because it adds provisions to the NRS. (It also amends a provision of NRS 159 that is deleted by SB 262, so there is some uncertainty about how that will play out.)
SB 262, effective July 1, 2015, is more nuanced. It took on qualifications of guardians of adults, balancing competing petitions to serve, and also addressed a prior mandate that a guardian must reside in-state to qualify to serve.
The lion’s share of SB 262’s changes address NRS 159. Previously, adult and minor guardianship qualifications could be found in the same section, so the changes to the adult guardianship rules impact the minor guardianship rules in a stylistic fashion. In one notable oversight, out-of-state guardians of adults need to have resident agents, while the amendments are silent as to minor guardianships.
The In-State/Out-of-State Dynamic
SB 262 allows an out-of-state person, who is otherwise “qualified and suitable,” to serve as a guardian without an in-state counterpart as co-guardian by using an in-state registered agent. It remains to be seen how personal service of orders shortening time and the like will manifest, but an in-state registered agent for purposes of guardianship would be well advised to maintain communication with the out-of-state guardian so they can be located in an emergency.
When comparing the desire of an in-state prospective guardian and an out-of-state one, if the out-of-state one is “more qualified and suitable to serve” and being away from the ward’s place of residence would not impact the care or responsiveness to the adult’s needs because they are being supervised by a care provider or other person who supervises them on an ongoing basis or the newly appointed guardian will move to Nevada within 30 days of being selected, they may be selected over an in-state guardian. (Note: A nonresident guardian could be required to obtain training in or out of Nevada regarding guardianship responsibilities.)
Qualifications and Suitability
A court, where applicable, is to consider, regarding proposed guardian(s):
- Their ability to provide for the basic needs of the adult;
- Whether they have abused drugs or alcohol in the past 6 months;
- Whether they have been judicially determined to have committed abuse, neglect, etc. of a child, spouse, parent, or another adult (notably with discretion here for the court to disregard this if the best interests of the adult are served by the appointment);
- Whether they have a disability or are incompetent themselves; and
- Whether they have a felony conviction (this is another factor where the court has discretion where the appointment of the guardian would serve the ward’s best interests).
Preference is given to a proposed guardian nominated in the will of an estate plan while the adult was competent versus one nominated by another written instrument effectuated while they were similarly competent. So formality may make the decision for the court.
Similarly regarding preference by the court, guidance is given regarding which guardian is most suitable – this means if there are competing petitions, the following order of preference controls:
- A spouse or domestic partner of the adult;
- A child of theirs;
- A parent;
- A relative they have lived with for six months before the petition was filed or one nominated by power of attorney;
- A relative acting currently as agent;
- A sibling;
- A grandparent or grandchild;
- An aunt, uncle, niece, nephew, or cousin; or
- Any other person recognized as a familial relation.
Preference of Non-Nominated or Familial Relations
In cases where an adult ward is the last of their family alive or perhaps the adult ward has no family able to serve as guardian, the court may appoint a public guardian in the locale where the adult resides, a private fiduciary, or a private professional guardian These parties are on an equal footing with one another after in these types of cases. The equal consideration of these parties is new for guardianship in Nevada.
More Changes Ahead
The Nevada Guardianship Commission, helmed by Nevada Supreme Court Chief Justice Hardesty, had its first meeting on July 15, 2015 and will have further meetings leading up to the commission’s recommendations regarding guardianship administration at the end of the year. The ultimate goal is to strive for best practices in Nevada related to guardianship administration. In Clark County, Judge Steel (a member of the statewide commission) has solicited input from the guardianship bar about changes to rules in guardianship with an eye to improving statewide best practices and offering concrete measures to the Commission by the December 2015 deadline for recommendations.
According to Homa Woodrum’s 5 and 7 year old children, “lawyers help people.” She does her best to prove them right. ( WoodrumLaw.com)
Nevada Becomes the Second State in the Country to Offer Research Animals a Second Chance
By Jennifer L. Braster, Esq.
On June 2, 2015, when Governor Sandoval signed Senate Bill 261 (SB 261) into law, Nevada became the second state in the country to require research facilities to offer dogs and cats used for research for adoption before euthanizing these animals. Specifically, SB 261 requires, “A research facility that intends to euthanize a dog or cat for any purpose other than scientific, medical or educational research shall, before euthanizing the dog or cat, offer the dog or cat for adoption if the dog or cat is appropriate for adoption.” (Emphasis added).
Nevada joins Minnesota in requiring research facilities to offer research dogs and cats for adoption before euthanizing the animal. See Minn. H.F. No. 3172. Within weeks of Nevada’s passage of SB 261, Connecticut also passed similar legislation. Conn. Public Act No. 15-201.
SB 261 was dubbed the “Beagle Bill,” as beagles are often used as research animals due to their personalities. Senator Manendo, a strong supporter of animal rights in Nevada and one of the primary sponsors of the bill, lobbied strongly on behalf of the Beagle Bill. As he testified to at the hearings on this bill, 95% of research animals are beagles because their docile nature and “people-pleasing personalities” make them good subjects. SB 261: Hearing Before the Senate Comm. on Nat. Resources, 78th Sess. (Nev. Mar. 24, 2015) (statement of Sen. Manendo). Many of these animals are euthanized after the facility has no further purpose for the subject – even if healthy.
Charles River Laboratories, a major research facility in Northern Nevada, was the main opponent to the Beagle Bill. During the legislative hearings, a representative of Charles River Laboratories testified that it had never offered an animal for adoption out of its Nevada facility after completing the testing. Id. (statement of Robert Stachlewitz). The representative also testified that it has 50 dogs at its Reno facility. Id.
At one point during the session, SB 261 was substantially modified so that research facilities “may” offer their research dogs and cats for adoption, versus “shall.” Fortunately, when passed, the language of the Beagle Bill returned to “shall.” In an initial draft of the bill, the law limited research facilities from using an animal for testing for more than two years; however, that language was removed from the final draft.
It remains to be seen the impact of SB 261 on research dogs and cats in Nevada. SB 261 gives the facility discretion in determining if the dog or cat is appropriate for adoption. For many of the dogs at Charles River Laboratories, they are implanted with a telemetry device which allows for various measurements of the animal’s medical statistics, including blood pressure and heart rate. At the end of the study, the procedure to remove the device is “terminal.” Id. (Exhibit F). Thus, the legislation as written likely would not prevent the euthanasia of these dogs. However, once determined that an animal is an “appropriate for adoption,” the research facility must offer that dog or cat for adoption. Only time will tell how many research animals are given a second chance.
Jennifer L. Braster, Esq. is a founding partner of Naylor & Braster Attorneys at Law and one of the founding members of the Animal Law Section of the State Bar of Nevada. Jennifer practices primarily in the area of commercial litigation and has also represented clients with various animal law issues.