dissenting:
Respectfully, I dissent.
Although I agree with the majority’s holding that an administrative regulation can in some instances cure a constitutionally defective statute, I disagree with the majority’s conclusion that NAC 607.200 cures NRS 338.160(5).
The majority correctly recognizes that due process requires, at a minimum, an opportunity to be heard. For this proposition, the majority cites Armstrong v. Manzo, 380 U.S. 545 (1965). That opinion goes on to say, however, that the opportunity to be heard “is an opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong, 380 U.S. at 552.
Neither NRS 338.160(5) nor NAC 607.200 provides an affected party á hearing. The majority holds that NAC 607.200(3) does provide an affected contractor a hearing, and that this hearing must be held promptly following a retention.. As the case at bar illustrates, this is not the understanding of the Commissioner, who, even by the time of oral argument, had failed to hold a hearing in this matter.
Even were a hearing provided, NRS 338.160(5) is nonetheless defective because the hearing need not be provided within a meaningful time (as evidenced by the case at hand). At some *132point in time, failure to conduct a post-deprivation1 hearing becomes a constitutional violation. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 547 (1985). The deprivation now facing Universal could be perpetual.
In Barry v. Barchi, 443 U.S. 55 (1979), the United States Supreme Court addressed the requisites of a post-deprivation hearing. Barchi, a horse trainer, was accused of allowing his horse to be drugged. Under the statutory scheme, this could result in a license suspension; the New York State Racing and Wagering Board suspended Barchi’s license for fifteen days. Barchi was entitled to a post-suspension hearing, but the statute specified no time in which this hearing was to be held. Rather than pursue the hearing, Barchi filed suit alleging that the scheme violated due process. Barry, 443 U.S. at 57-61.
The Court recognized that the summary suspension did not affront due process. Id. at 63. It concluded, however, that due process was violated because “the provision for an administrative hearing, neither on its face nor as applied in this case, assured a prompt proceeding and prompt disposition of the outstanding issues between Barchi and the State. . . . Once suspension has been imposed, the trainer’s interest in a speedy resolution of the controversy becomes paramount . ...” Id. at 66.2
Even if NAC 607.200 does mandate a hearing, the hearing could be any time, perhaps never. In this case, for instance, the initial deprivation was imposed in March 1991. Now, nearly two years later, there has been no hearing and the issue remains unresolved. Although it may be argued that Universal has yet to suffer a final deprivation, it has surely suffered, and continues to suffer, an injury. An indeterminate deprivation of this sort is intolerable.
I appreciate the burden the Commissioner would face if required to promptly grant hearings. Indeed, our state’s current fiscal situation would probably prevent the Commissioner from hiring the personnel necessary to investigate and preside over the necessary hearings. I also applaud the legislature for its resolve in passing this laudatory legislation and attempting to protect the workers of this state from less than scrupulous employers.
Nonetheless, as it stands, the entire burden is now borne by a *133perhaps innocent subcontractor, with no relief in sight. In short, due process is not satisfied by the current regulatory scheme. For this reason, I dissent.
Universal concedes that due process does not require a hearing prior to an NRS 338.160(5) retention.
A distinguishing factor between Barry and the instant case is that trainers such as Barchi had “no opportunity to put the State to its proof until they [had] suffered the full penalty imposed.” Barry, 443 U.S. at 66. Universal, on the other hand, can probably obtain some sort of review somewhere along the line. The problem, however, is that we do not know when.