Minutes

Southern Nevada District Board of Health Meeting
January 25, 2007 - 9 a.m.

Clemens Room
Southern Nevada Health District Ravenholt Center
625 Shadow Lane
Las Vegas, Nevada

Chair Donna Fairchild called the meeting of the Southern Nevada District Board of Health to order at 9:01 a.m. and the Pledge of Allegiance was held. She also noted that she had been provided with the Affidavits of Posting and Mailing of Agenda meeting notices, as required by Nevada’s Open Meeting Law. The Affidavits are incorporated into these Official Minutes.

Board Members Present:

Donna Fairchild - Chair, Council Member, Mesquite
Steven Kirk - Vice Chair, Councilman, Henderson
Karla Burton - Councilwoman, Boulder City
Susan Brager - Commissioner, Clark County
Jim Christensen, MD - At-Large Member, Physician
Susan Crowley - At-Large Member, Environmental Specialist
Chris Giunchigliani - Commissioner, Clark County
Timothy Jones - At-Large Member, Business/Industry
Mary Jo Mattocks, RN - At-Large Member, Registered Nurse
Stephanie Smith - Councilwoman, North Las Vegas
Lawrence Weekly - Councilman, Las Vegas
Lon Empey - At-Large Environmental Specialist Alternate
John Onyema, MD - At-Large Member, Physician Alternate
Jimmy Vigilante - At-Large Business/Industry Member Alternate

Absent:

Joseph Hardy, MD - At-Large Member, Physician
Gary Reese - Secretary, Councilman, Las Vegas

Executive Secretary:

Donald S. Kwalick, MD, MPH

Legal Counsel:

Stephen R. Minagil

Staff: Dr. Lawrence Sands, Mike Walsh, Glenn Savage, Bonnie Sorenson, Veronica Morata-Nichols, Alice Costello, Angus MacEachern, Sylvia Claiborne, Dennis Campbell, Deborah Williams, Maria Azzarelli, Nicole Truax, Patricia Rowley, Brian Labus, Rory Chetelat, Nancy Hall, Kent Wirtz, Paul Klaus, Kay Godby, Laura Perkins, Mary Ellen Harrell, Patty O’Rourke-Langston, Stan Jensen, Craig Erskine, Jennifer Sizemore, Stephanie Bethel, Ann Markle, Susan Eiselt, Shelli Clark, Diana Lindquist, Jerry Boyd, Leo Vega, Forrest Hasselbauer

Attendance:

Oath of Office: New Board of Health Members – County Commissioners Susan Brager and Chris Giunchigliani

The oath of office was administered to Clark County Commissioners Chris Giunchigliani and Susan Brager. The Board welcomed the new members.

I. Consent Agenda: These are matters considered to be routine by the Southern Nevada District Board of Health and may be enacted by one motion. Any item, however, may be discussed separately per Board Member request before action. Any exceptions to the Consent Agenda must be stated prior to approval.. Any exceptions to the Consent Agenda must be stated prior to approval.

1. Approve Minutes / Board of Health Meeting: 12/14/06
2. Approve Payroll / Overtime for Periods: 11/18/06 – 12/01/06; 12/02/06 – 12/15/06; 12/16/06 – 12/29/06
3. Approve Accounts Payable Registers: #1054: 11/30/06 – 12/07/06; #1055: 12/08/06 – 12/14/06; #1056: 12/15/06 – 12/20/06; #1057: 12/21/06 – 12/27/06; #1058: 12/28/06 – 1/03/07
4. Petition #01-07: Approval of Members to the Family Planning Advisory Council
5. Petition #02-07: Approval of Lease Agreement for Space in Laughlin, Nevada
6. Petition #03-07: Approval of Additional Positions for Health Records

A motion was made by Member Kirk to approve all consent items; seconded by Member Mattocks and was unanimously approved.

II. Public Hearing / Action

1. Memorandum #01-07: Request for a Variance to District Emergency Medical Services & Trauma System Regulations Section 900.010 Ambulance Service: Critical Care Transport Services. Petitioner: American Medical Response.
   
   EMS & Trauma System Regulations state that an EMS registered nurse must have at least five years of nursing experience that includes a minimum of three years of critical care nursing experience to provide critical care transport services. Ms. Jennings does not have the required five years of nursing experience, but does have three years of nursing experience in the critical care setting. However, she has been licensed as a paramedic in Clark County providing advanced life support care since December 1994. Given her twelve years of paramedic experience, the EMS Office recommends a waiver of the requirement for five full years of nursing experience to allow her to provide critical care transport services for American Medical Response.
   
   Rory Chetelat, emergency medical services manager, recommended approval of the variance with the condition that Ms. Jennings must meet all other requirements listed in EMS & Trauma System Regulations Section 900.010
   
   Petitioner, Lorreta Jennings, American Medical Response was present and agreed to staff recommendations.
   
   Chair Fairchild asked if anyone from the public wished to speak. No one came forward, and Chair Fairchild closed the public hearing portion.
   
   A motion was made by Member Crowley to approve the variance request with specified conditions; seconded by Member Christensen and was unanimously approved.
   
   
2. Memorandum #02-07: Adoption of Amendments to District Emergency Medical Services & Trauma System Regulations Section 1600.000 Medical Advisory Board.
   
   Rory Chetelat, emergency medical services manager, recommended adoption of the proposed Amendments to the District’s Emergency Medical Services & Trauma System Regulations Section 1600.000 Medical Advisory Board.
   
   Member Giunchigliani asked about the number of franchised agencies. Mr. Chetelat stated there are 15 total permitted agencies, two franchised agencies and 6 fire departments. It was clarified that we are only working with the franchised agencies and the fire departments. The franchised agencies are Medic West Ambulance and AMR Ambulance. Member Crowley stated that in Section II, Letter I., “a single one (1) year term,” should be changed to one single calendar year.
   
   Chair Fairchild asked if anyone from the public wished to speak. No one came forward, and Chair Fairchild closed the public hearing portion.
   
   A motion was made by Member Giunchigliani to adopt the amendments with the language change to Section II, Letter I as listed; seconded by Member Brager and was unanimously approved.
   
   
3. Variance Request: To Operate a Food Establishment Not in Compliance with the District Board of Health Regulations 1996 Governing the Sanitation of Food Establishment (APN #139-34-111-064) Petitioner: TLC ENTERPRISES, INC. dba Four Queens Hotel & Casino, for TLC VENTURES, INC. dba Fremont Street Coffee Company.
   
   Staff recommended approval with conditions listed. The purpose of this variance is to allow an offsite portable unit. The Petitioners, Ken Johnson and Betty Medina were present and agreed to conditions listed.
   
   Chair Fairchild asked if anyone from the public wished to speak. No one came forward, and Chair Fairchild closed the public hearing portion.
   
   A motion was made by Member Smith to approve the variance request with listed conditions; seconded by Member Brager and was unanimously approved.
   
   
4. Memorandum #04-07: Application for Approval for Auburn Fibers, Inc. to Operate a Recycling Center Located at 3585 W. Diablo #2, Las Vegas, Nevada 89118.
   
   Staff recommends approval of a permit to operate a recycling center with conditions listed. Mr. Wayde Block, Petitioner, was present and agreed to conditions listed.
   
   Member Giunchigliani asked the petitioner what articles he is recycling. Mr. Block responded primarily paper and cardboard and a little bit of plastic. She asked the location. Mr. Block indicated the southwest side, Russell and Valley View area. Member Giunchigliani commended Mr. Block on his recycling efforts.
   
   Chair Fairchild asked if anyone from the public wished to speak. No one came forward, and Chair Fairchild closed the public hearing portion.
   
   A motion was made by Member Mattocks to approve with staff recommendations; seconded by Member Smith and was unanimously approved.
   
   
5. Memorandum #03-07: Adoption of the Solid Waste Management Authority Proposed Transfer Stations, Public Waste Storage Bin Facilities, and Construction and Demolition Waste Short Term Storage Facilities Regulations.
   
   Mr. Craig Erskine, environmental health supervisor and Mr. Dennis Campbell, environmental health manager addressed the Board. The adoption of these regulations is intended to protect the public health, safety and environment through preventive measures, and timely correction of public health and environmental risks and solid waste disposal issues relating to transfer stations, public waste storage bin facilities, and construction and demolition (C & D) waste short-term storage facilities. The regulations establish definitions; set minimum standards for the location, design, construction, operation, and maintenance of transfer stations, public waste storage bin facilities, and C & D waste short-term storage facilities; outline record keeping and reporting requirements; provide for enforcement; and include provisions for the issuance, suspension, and revocation of permits.
   
   Staff recommends approval of the adoption of each of the three proposed regulations governing 1) Transfer Stations, 2) Public Waster Storage Bin Facilities and 3) Construction and Demolition Waste Short-Term Storage Facilities.
   
   Member Giunchigliani asked about the new regulations impact on the public. Mr. Erskine stated that staff felt the regulations will enhance the public’s health and will prevent any environmental degradation to the properties which has occurred in the past with unregulated storage and processing yards being operated. Member Giunchigliani asked what changes take place in 120 days. Mr. Campbell stated that with existing facilities the impact would be minimal. The new regulations require facilities to have a closure plan which includes financial viability to ensure closure will be handled properly.
   
   Member Jones asked if the C & D process addressed the issue of handling asbestos. Mr. Erskine responded that asbestos is not allowed at any of these facilities and requires a separate waste transport permit before it can be moved from the site of origin.
   
   Member Smith and Chair Fairchild thanked Mr. Erskine and Mr. Campbell for their efforts regarding the proposed regulations.
   
   Chair Fairchild asked if anyone from the public wished to speak. Connie Harris, representing Harris Drop Box, LLC addressed the Board. Ms. Harris requested the Board approve and allow her firm to consolidate the C & D materials waste at one location to reduce trips to the landfill and thereby reducing expenses and truck time on the road.
   
   Chair Fairchild asked Mr. Erskine to respond to this request. Mr. Erskine responded that staff did take Ms. Harris’ request into consideration during the public hearing; however, it was felt that this type of facility is adequately allowed either as a transfer station or as a materials recovery facility (MRF), and that a consolidation facility was not needed at this point. It was indicated that the company may apply for a Materials Recovery Facility (MRF) permit or a transfer station permit. Member Smith stated they need to apply as a MRF; you cannot mix MRFs and storage bins. Mr. Erskine stated the local jurisdictions have specific requirements; land use; etc. Once they obtain approvals then staff will examine their application as far as the solid waste handling and disposal. Ms. Harris stated that her company, due to its size and the cost of the permit would be unable to apply as a MRF. Member Giunchigliani referred to the minutes of public hearing on this matter. She stated the question was raised during the hearing and was not addressed. Member Smith clarified that staff did record Ms. Harris’ concern during the public hearing and that it was noted for future discussion. Mr. Erskine stated that within the existing regulations there were adequate facilities at this time. Member Giunchigliani indicated the minutes did not reflect that this issue would be discussed at a later time.
   
   Mr. Minagil indicated the distinction here is the current regulatory scheme provides for facilities that put solid waste on the ground. The current regulations in effect deal with both MRF and transfer stations. The distinction is the new regulations deals with only the bins that come in on a temporary basis with no waste placed upon the ground. Once waste is placed on the ground it creates substantial issues. Then staff reviews any activity once the waste is on the ground. If it is processed, placed into another bin for storage; there is a current regulatory scheme for that called a transfer station. If the waste is going to be sorted there is another regulatory process for that called a MRF. The new regulation regarding C & D bins is designed for a much more limited type of operation where the waste does not go on the ground.
   
   Member Giunchigliani asked if given the size of the company, could they qualify as a MRF or transfer station. Mr. Erskine indicated that given the volume of C & D waste that Harris Drop Box is handling, they could fall under a MRF. It is up to the local authority having jurisdiction to determine if their property is large enough to meet the zoning requirements. Mr. Savage, director of environmental health services stated that photographs of materials being dumped on the ground by a variety of companies, including Harris Drop Box, will be passed to the Board members to see what some of these facilities are dumping out onto the ground. There are dust issues, as well as hazardous materials that enter into these facilities. They must be handled and disposed of properly. Often businesses will tell staff they wish to be a recycler. Staff will work with these businesses to help them with regulations. During further discussions, businesses then state they wish to do something else with the waste. Every time the community wishes to develop new waste transport methods, staff has been very helpful in assisting them in the entire process. Often the businesses are not sure what they want to do; staff assists them with their business plan so we can place them in the appropriate regulatory box which will assist the business in becoming successful. Zoning and land use decisions need to be made by the local jurisdictions. Often that can be a stumbling block as in the case of how much acreage can be used, whether they require buildings, etc.
   
   Member Crowley stated that some regulations cover facilities that are only covered under a franchise agreement. As it relates to land use, is a MRF or a transfer facility required to obtain a franchise agreement? Mr. Erskine responded that an MRF would not as long as the waste stream is construction and demolition waste. Chair Fairchild indicated that perhaps Ms. Harris would wish to work with Health District staff to follow the process and to request a variance and return to the Board with this request.
   
   Member Weekly indicated that perhaps information to the applicant was not communicated properly and that we assure this applicant that we are clear in our request for information and what category the applicant may fit into.
   
   Member Smith indicated the issue here is not the size of the business, but it is public health. There is clearly a public health issue when dust is spread in our community. While the Board appreciates the predicament and financial incentive of a small business, we should not dilute our regulations to fit something into a category that does not fit and that has health issues as well.
   
   Diana Odden, Office Manager of Developers Maintenance addressed the Board. Ms. Odden stated that she appreciated the predicament of Ms. Harris and Harris Drop Box. They are a small company as well and an MRF permit is extremely expensive. She indicated their cooperation with Health District staff to be in compliance as well as stay in business and protect the environment. Ms. Odden stated that businesses are all trying to reduce expenses by reducing dump fees. She concluded by stating their business is in compliance and wishes to remain in compliance.
   
   Member Jones stated we are adding a C & D category and have not changed the nature of anyone’s business requirement, but have added an opportunity for some of the larger companies which the smaller companies do not get to take advantage of. No additional burdens have been placed on the smaller companies. Mr. Erskine stated he felt that their opportunities have been expanded to operate their business more economically by allowing them to have short term storage site. The other consideration is that we cannot make our regulations any less stringent that the State of Nevada revised statutes and the Nevada Administrative Code.
   
   Mr. W. R. Bill Bailey representing A-1 Organics addressed the Board. Mr. Bailey indicated his company recycles green waste. Mr. Bailey wished to commend staff on putting the regulations together. Organic recycling actually uses live organisms and creates a biomass. This process uses a lot of acreage. The mass is enclosed in a vessel and put into agricultural bags and it is composted in those bags. This is a different process than most compost recycling methods. Mr. Bailey asked if it would be possible to include terminology in the documentation that takes into account the in vessel recycling process and which would allow their company to obtain food waste from the casinos? Mr. Bailey stated that he wished to communicate with Mr. Robert Coombs and assist him in removing the odors from his facility. He also stated his appreciation for the variance process and that he had to utilize this process at one time or another. Mr. Bailey thanked the Board.
   
   Elizabeth Nelson, representing BEC Environmental addressed the Board. Ms. Nelson indicated there is a group that is forming that is comprised of recycling businesses within the community. This group is trying to facilitate some of these issues within the regulations. If a business becomes a MRF, possibly other businesses could utilize that facility and still stay in compliance.
   
   Chair Fairchild closed the public hearing portion.
   
   A motion was made by Member Smith to approve the regulations as listed; seconded by Member Crowley and was unanimously approved.

III. Report / Discussion / Action

1. Recommendations from Chief Health Officer Succession Committee
   
   Chair Fairchild stated the succession committee met December 14, 2006, at 10 a.m. and reviewed the applicants and interviewed one applicant, Dr. Lawrence Sands. Chair Fairchild stated that Dr. Sands is highly qualified, a resident of Southern Nevada and Clark County, and brings fresh ideas and a passion for public health. It is recommended by the committee Dr. Sands be appointed to the assistant health officer position and would then become chief health officer in March 2007 when Dr. Kwalick leaves.
   
   Member Giunchigliani asked the salary of the assistant health officer. Dr. Kwalick indicated that Dr. Sands would receive a 5 percent increase from his current salary. The salary for the position of chief health officer would be a negotiated contract with board members.
   
   Member Giunchigliani stated that she wished to confirm that the salary for the chief health officer was negotiable and asked Dr. Sands’ current salary. Mr. MacEachern, human resources administrator, indicated his current salary range is approximately $150 – 175,000 annually in addition to the 5 percent position increase. Member Jones indicated the assistant health officer position exists solely for the transition and is not always filled. Dr. Kwalick indicated this position could become permanent should the growth continue the way it is.
   
   A motion was made by Member Smith to accept the succession committee recommendation; seconded by Member Jones. Member Giunchigliani abstained from the vote.

IV. Citizen Participation:

Chair Fairchild invited any individuals wishing to speak to come forward. No one came forward at this time and this portion of the meeting was closed.

V. Health Officer & Staff Reports

Dr. Kwalick invited Stephen Minagil, Legal Counsel, to update the Board relative to Question 5, the Nevada Clean Indoor Air Act. In summary, Mr. Minagil stated:

Question 5 placed the duty for enforcing the Nevada Clean Indoor Air Act upon health authorities and law enforcement, with criminal and civil penalties. All of the entities in Clark County who would be enforcing those provisions were sued by a group of business owners, mostly bar and tavern owners. A temporary restraining order against enforcement was granted because of questions regarding constitutionality. After two weeks the Court granted a preliminary injunction against criminal enforcement only. Thereafter the Court granted judgment for the plaintiffs, the people who sued, in favor of their position that there should not be criminal enforcement, that the law was unconstitutional in terms of a criminal statute. The Court also granted judgment for the defendants in the case on civil enforcement. The bottom line is that Question 5 and the Nevada Clean Indoor Air Act is in effect, fully in effect, except for a person who violates the Act cannot be cited into criminal court to be subject to a misdemeanor penalty. Misdemeanor penalties are a fine up to $1,000, but it could also be up to six months in jail. In the end, the only thing that was struck down is that a violator cannot be convicted of a crime.

The Court’s decision leaves the health authority as the sole enforcer of the Nevada Clean Indoor Air Act in Clark County. The Act creates responsibility in three areas: first, a person who smokes in a place where smoking is prohibited can receive a citation which carries with it a civil penalty. The employer can also receive citations as well under two situations: failure to post no smoking signs clearly and conspicuously at every entrance, and failure to remove ashtrays and other items of smoking paraphernalia.

The health district believes that the first method of enforcement is education. On the health district website are guides to assist affect business and the public. There is a guide for employers in general, a guide for restaurants and bars who are the most affected businesses in our community, and also a guide for child care facilities. The guides answer commonly asked questions about what the law means and provide information regarding enforcement. These guides, besides going on the website, besides being in the pocket of every health inspector who inspects restaurants and bars, are being mailed now to every permittee. There are approximately 16,000 food permits for probably 7,000 establishments. There are 7,000 pieces of mail going out now to 7,000 establishments with these guides, with a letter explaining about the law, asking them to call us and see if they have questions.

The Act says that the health authority shall issue citations for violations. The penalty of $100 does not go to the health district but rather to the state education fund. As of today, violators would cited into a civil court, sued in the District Court to recover $100 to pay to the state – not a very efficient remedy. An effort is underway to prepare regulations so that there exists a more efficient way to enforce and to provide the public, or smoker or the employer, with an opportunity to contest as required by due process. There exists a hearing officer process in the solid waste area. That type of a hearing mechanism can be established for persons who are alleged to have violated the Nevada Clean Indoor Air Act. It’s more efficient for the health authority and the community in general, instead of citing and suing and taking up time in front of the District Court, to have a hearing officer forum.

Staff is also looking at a mechanism to recover health district costs. The law does not provide for the health authority to recover costs from a violator; it only provides for the $100 civil penalty. It is believed that regulations can be crafted to provide for a mechanism so that the health district could collect an administrative fee, not an additional penalty, but a fee for the health district’s cost in having to enforce and bring this person into the hearing process.

The experience of other jurisdictions is that information and education to the community will eventually get everybody, like four lanes of a freeway getting into two, everybody’s going to get in line eventually and understand what the law means. There may be some recalcitrant business owners or recalcitrant individuals that will be dealt with once everybody is educated and once a hearing officer process is set up for an efficient remedy. What’s also happening now is that individual business owners, like bars and taverns, are now looking at their operations and deciding, since the legal challenges have been unsuccessful, how can we operate within the law and what do we need to do? Staff has met with representatives of the Nevada Tavern Owners Association, for example, and set up a system whereby they can come to the health district and meet with the plan review section of our Environmental Health Division and walk through what they need to do for their individual businesses.

Some issues that have arisen include for example, one facility that is exempt is a stand-alone bar if there’s only incidental food service, pre-packaged foods. Places in town that have full food service may want to be a night club, for example, or want to be a stand-alone bar after hours. The question is can they close their kitchen at 10pm and at 10:30 open up as a stand-alone bar/night club and permit smoking because they don’t have food service, they’re stand-alone, there’s no hallways into another place where there’s smoking is prohibited. The answer is going to be yes, that they would be able to do that because the law doesn’t preclude that. They can be a restaurant certain hours of the day; they can be a stand-alone bar perhaps after hours. A tougher issue is restroom access and hallway access and how can we get the people in the non-smoking area sufficiently segregated from a smoking area into restrooms that they may have to walk through the smoking area bar. Those are tougher issues for the businesses and staff is trying to work with them and explain the law and come with a way that they can do that under the law. But the bottom line is that affected businesses are coming to us and we’re going to talk with every single one of them that wants to talk on a case-by-case individual business basis.

Drafts of hearing officer process regulations are being prepared. Staff is also looking at amending the food regulations. Knowing that second-hand tobacco smoke is such a health hazard, staff is going to look at the food regs to see if there should be an affirmative obligation upon business owners to tell people you can’t smoke. Besides the signs, besides removing the ashtrays, the business would have an affirmative obligation to make the facility smoke-free. Remember before Question 5 the issue of who could control smoke was a state issue; now this law allows some local control. Those changes may appear on the March agenda, rather than the February agenda, because of the desire to have workshops to hear from all members of the community before proposed regulations are presented to the Board.

Chair Fairchild thanked Mr. Minagil and said that he represented this District and the Board very, very well, and that the Board appreciates everything he’s done.

VI. Informational Items

VIII. Adjournment

Chair Fairchild adjourned the meeting at 10:38 a.m.

SUBMITTED FOR BOARD APPROVAL

Donald S. Kwalick, MD, MPH, Chief Health Officer
Executive Secretary

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