[Rev. 11/21/2013 9:25:21 AM--2013]

CHAPTER 91 - COMMODITIES

GENERAL PROVISIONS

NRS 91.010             Purpose; construction.

NRS 91.020             Definitions.

NRS 91.030             “Administrator” defined.

NRS 91.040             “Board of trade” defined.

NRS 91.050             “Commodity” defined.

NRS 91.060             “Commodity contract” defined.

NRS 91.070             “Commodity Exchange Act” defined.

NRS 91.080             “Commodity Futures Trading Commission” defined.

NRS 91.090             “Commodity merchant” defined.

NRS 91.100             “Commodity option” defined.

NRS 91.110             “Financial institution” defined.

NRS 91.120             “Offer” defined.

NRS 91.130             “Person” defined.

NRS 91.140             “Precious metal” defined.

NRS 91.150             “Sale” and “sell” defined.

NRS 91.160             Administration.

NRS 91.170             Cooperation with other agencies.

NRS 91.180             Effect on chapter 90 of NRS.

UNLAWFUL ACTS

NRS 91.190             Sale or purchase of commodities prohibited; exceptions.

NRS 91.200             Persons exempted.

NRS 91.210             Transactions exempted.

NRS 91.220             Prohibited activities of commodity merchant and board of trade.

NRS 91.230             Fraudulent conduct.

NRS 91.240             Applicability of NRS 91.190, 91.220 and 91.230.

NRS 91.250             Liability of principals and agents.

ENFORCEMENT; REMEDIES; PENALTIES

NRS 91.260             Regulations and orders.

NRS 91.270             Orders: Procedure.

NRS 91.280             Orders: Judicial review. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 91.280             Orders: Judicial review. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 91.290             Appointment of Administrator as attorney to receive service of process.

NRS 91.300             Investigations and subpoenas.

NRS 91.310             Enforcement by Administrator.

NRS 91.320             Remedies for violation of this chapter.

NRS 91.330             Remedies for violation of similar law of another jurisdiction.

NRS 91.340             Criminal penalties.

_________

GENERAL PROVISIONS

      NRS 91.010  Purpose; construction.  The Legislature intends that this chapter be construed and implemented to effectuate its general purpose to protect investors, to prevent and prosecute illegal and fraudulent schemes involving commodity contracts and to maximize coordination with federal and other states’ law and the administration and enforcement thereof. This chapter is not intended to create any rights or remedies upon which actions may be brought by private persons against persons who violate the provisions of this chapter.

      (Added to NRS by 1987, 1287)

      NRS 91.020  Definitions.  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 91.030 to 91.150, inclusive, have the meanings ascribed to them in those sections.

      (Added to NRS by 1987, 1282; A 2003, 3178)

      NRS 91.030  “Administrator” defined.  “Administrator” means the Administrator of the Securities Division of the Office of the Secretary of State.

      (Added to NRS by 1987, 1282)

      NRS 91.040  “Board of trade” defined.  “Board of trade” means any person or group of persons engaged in buying or selling any commodity or receiving any commodity for sale on consignment, whether or not the person or group of persons is characterized as a board of trade, exchange or other form of market place.

      (Added to NRS by 1987, 1282)

      NRS 91.050  “Commodity” defined.

      1.  “Commodity” means, except as otherwise provided in subsection 2 or specified by the Administrator by regulation or order:

      (a) Any agricultural, grain or livestock product or by-product;

      (b) Any metal or mineral, including a precious metal;

      (c) Any gem or gemstone whether characterized as precious, semiprecious or otherwise;

      (d) Any fuel, whether liquid, gaseous or otherwise;

      (e) Any foreign currency; and

      (f) All other goods, articles, products or items of any kind.

      2.  “Commodity” does not include:

      (a) A numismatic coin whose fair market value is at least 15 percent higher than the value of the metal it contains;

      (b) Real property or any timber, agricultural or livestock product grown or raised on real property and offered or sold by the owner or lessee of such real property; or

      (c) Any work of art offered or sold by art dealers, at public auction or offered or sold through a private sale by the owner thereof.

      (Added to NRS by 1987, 1282)

      NRS 91.060  “Commodity contract” defined.

      1.  “Commodity contract” means any account, agreement or contract for the purchase or sale, primarily for speculation or investment purposes and not for use or consumption by the offeree or purchaser, of one or more commodities, whether for immediate or subsequent delivery or whether delivery is intended by the parties, and whether characterized as a cash contract, deferred shipment or deferred delivery contract, forward contract, futures contract, installment or margin contract, leverage contract or otherwise. Any commodity contract offered or sold, in the absence of evidence to the contrary, is presumed to be offered or sold for speculation or investment purposes.

      2.  “Commodity contract” does not include any contract or agreement which requires, and under which the purchaser receives, within 28 calendar days after the payment of any portion of the purchase price, physical delivery of the total amount of each commodity to be purchased under the contract or agreement.

      (Added to NRS by 1987, 1283)

      NRS 91.070  “Commodity Exchange Act” defined.  “Commodity Exchange Act” means the act of Congress known as the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq.

      (Added to NRS by 1987, 1283)

      NRS 91.080  “Commodity Futures Trading Commission” defined.  “Commodity Futures Trading Commission” means the independent regulatory agency established by Congress to administer the Commodity Exchange Act.

      (Added to NRS by 1987, 1283)

      NRS 91.090  “Commodity merchant” defined.  “Commodity merchant” means any of the following, as defined or described in the Commodity Exchange Act or by a rule of the Commodity Futures Trading Commission:

      1.  A futures commission merchant;

      2.  A commodity pool operator;

      3.  A commodity trading adviser;

      4.  An introducing broker;

      5.  A leverage transaction merchant;

      6.  An associated person of any person listed in subsections 1 to 5, inclusive;

      7.  A floor broker; or

      8.  Any other person, other than a futures association, required to register with the Commodity Futures Trading Commission.

      (Added to NRS by 1987, 1283)

      NRS 91.100  “Commodity option” defined.  “Commodity option” means any account, agreement or contract giving a party thereto the right but not the obligation to purchase or sell one or more commodities or one or more commodity contracts, whether characterized as an option, privilege, indemnity, bid, offer, put, call, advance guaranty, decline guaranty or otherwise, but does not include an option traded on a national securities exchange registered with the Securities and Exchange Commission.

      (Added to NRS by 1987, 1283)

      NRS 91.110  “Financial institution” defined.  “Financial institution” means a bank, credit union, savings institution or trust company organized under, or supervised pursuant to, the laws of the United States or of any state.

      (Added to NRS by 1987, 1284; A 1999, 1456)

      NRS 91.120  “Offer” defined.  “Offer” includes every offer to sell, purchase or enter into a commodity contract or commodity option.

      (Added to NRS by 1987, 1284)

      NRS 91.130  “Person” defined.

      1.  “Person” includes a government, governmental agency or political subdivision of a government.

      2.  “Person” does not include a contract market designated by the Commodity Futures Trading Commission or any clearinghouse thereof or a national securities exchange registered with the Securities and Exchange Commission, or any employee, officer or director of such a contract market, clearinghouse or exchange acting solely in that capacity.

      (Added to NRS by 1987, 1284)

      NRS 91.140  “Precious metal” defined.  “Precious metal” means the following in either coin, bullion or other form:

      1.  Silver;

      2.  Gold;

      3.  Platinum;

      4.  Palladium;

      5.  Copper; and

      6.  Such other items as the Administrator may specify by regulation or order.

      (Added to NRS by 1987, 1284)

      NRS 91.150  “Sale” and “sell” defined.  “Sale” or “sell” includes every contract of sale, contract to sell or disposition for value.

      (Added to NRS by 1987, 1284)

      NRS 91.160  Administration.

      1.  This chapter must be administered by the Administrator of the Securities Division of the Office of the Secretary of State.

      2.  It is unlawful for the Administrator or any employee of the Administrator to use for personal benefit any information which is filed with or obtained by the Administrator and which is not made public. It is unlawful for the Administrator or any employee of the Administrator to conduct any dealings regarding a security or commodity based upon any such information, even though made public, if there has not been a sufficient period of time for the securities or commodity markets to assimilate such information.

      3.  Except as otherwise provided in subsection 4, all information and materials collected, assembled or maintained by the Administrator are public records.

      4.  Except as otherwise provided in NRS 239.0115, the following information is confidential:

      (a) Information obtained in private investigations pursuant to NRS 91.300; and

      (b) Information obtained from federal agencies which may not be disclosed under federal law.

      5.  The Administrator in his or her discretion may disclose any information made confidential under subsection 4 to persons identified in subsection 1 of NRS 91.170.

      6.  No provision of this chapter either creates or derogates any privilege which exists at common law, by statute or otherwise when any record or other evidence is sought under subpoena directed to the Administrator or any employee of the Administrator.

      (Added to NRS by 1987, 1289; A 2003, 3178; 2007, 2070)

      NRS 91.170  Cooperation with other agencies.

      1.  To encourage uniform application and interpretation of this chapter and regulation and enforcement of securities laws in general, the Administrator and the employees of the Administrator may cooperate, including bearing the expense of the cooperation, with the securities agency or administrator of another jurisdiction, Canadian province or territory, the Commodity Futures Trading Commission, the Securities and Exchange Commission, any self-regulatory organization established under the Commodity Exchange Act or the Securities Exchange Act of 1934, any national or international organization of officers or agencies which regulate commodities or securities, and any governmental law enforcement agency.

      2.  The cooperation authorized by subsection 1 includes, but is not limited to, the following:

      (a) Making joint examinations or investigations;

      (b) Holding joint administrative hearings;

      (c) Filing and prosecuting joint litigation;

      (d) Sharing and exchanging personnel;

      (e) Sharing and exchanging information and records;

      (f) Formulating and adopting mutual regulations, statements of policy, guidelines, proposed statutory changes and releases; and

      (g) Issuing and enforcing subpoenas at the request of the agency administering this chapter in another jurisdiction, the securities agency of another jurisdiction, the Commodity Futures Trading Commission or the Securities and Exchange Commission if the information sought would also be subject to lawful subpoena for conduct occurring in this State.

      (Added to NRS by 1987, 1290; A 2003, 3178)

      NRS 91.180  Effect on chapter 90 of NRS.  Nothing in this chapter impairs, derogates or otherwise affects the authority or powers of the Administrator under chapter 90 of NRS or the application of any provision thereof to any person or transaction subject thereto.

      (Added to NRS by 1987, 1287)

UNLAWFUL ACTS

      NRS 91.190  Sale or purchase of commodities prohibited; exceptions.  Except as otherwise provided in NRS 91.200 and 91.210, a person shall not sell or purchase or offer to sell or purchase any commodity under any commodity contract or under any commodity option or offer to enter into or enter into as seller or purchaser any commodity contract or any commodity option.

      (Added to NRS by 1987, 1284)

      NRS 91.200  Persons exempted.  The prohibitions in NRS 91.190 do not apply to any transaction offered by and in which any of the following persons, or any employee, officer or director thereof acting solely in that capacity, is the purchaser or seller:

      1.  A person registered with the Commodity Futures Trading Commission as a futures commission merchant or as a leverage transaction merchant whose activities require such registration;

      2.  A person registered with the Securities and Exchange Commission as a broker-dealer whose activities require such registration;

      3.  A person affiliated with, and whose obligations and liabilities under the transaction are guaranteed by, a person referred to in subsection 1 or 2;

      4.  A person who is a member of a contract market designated by the Commodity Futures Trading Commission or any clearinghouse thereof;

      5.  A financial institution; or

      6.  A person registered under the laws of this State as a securities broker-dealer whose activities require such registration.

Ê The exemption provided in this section does not apply to any transaction or activity which is prohibited by the Commodity Exchange Act or by a rule of the Commodity Futures Trading Commission.

      (Added to NRS by 1987, 1284)

      NRS 91.210  Transactions exempted.

      1.  The prohibitions in NRS 91.190 do not apply to the following:

      (a) An account, agreement or transaction within the exclusive jurisdiction of the Commodity Futures Trading Commission granted under the Commodity Exchange Act.

      (b) A commodity contract for the purchase of one or more precious metals which requires, and under which the purchaser receives, within 7 calendar days after the payment of any portion of the purchase price, physical delivery of the quantity of the precious metals purchased by the payment. For purposes of this paragraph, physical delivery shall be deemed to have occurred if, within the 7-day period, the quantity of precious metals purchased by the payment is delivered, whether in specifically segregated or fungible bulk form, into the possession of a depository other than the seller which is either:

             (1) A financial institution;

             (2) A depository the warehouse receipts of which are recognized for delivery purposes for any commodity on a contract market designated by the Commodity Futures Trading Commission;

             (3) A storage facility licensed or regulated by the United States or any agency thereof; or

             (4) A depository designated by the Administrator,

Ê and the depository issues, and the purchaser receives, a certificate, record of title, confirmation or other instrument evidencing that such a quantity of precious metals has been delivered to the depository and is being and will continue to be held by the depository on the purchaser’s behalf, free and clear of all liens and encumbrances, other than liens of the purchaser, tax liens, liens agreed to by the purchaser, or liens of the depository for fees and expenses, which have previously been disclosed to the purchaser.

      (c) A commodity contract solely between persons engaged in producing, processing, using commercially or handling as merchants, each commodity subject thereto, or any by-product thereof.

      (d) A commodity contract under which the offeree or the purchaser is a person referred to in NRS 91.200, an insurance company, an investment company as defined in the Investment Company Act of 1940, or an employee pension and profit-sharing or benefit plan, other than a self-employed individual retirement plan or individual retirement account.

      2.  The Administrator may adopt regulations or issue orders prescribing the terms and conditions of all transactions and contracts covered by the provisions of this chapter which are not within the exclusive jurisdiction of the Commodity Futures Trading Commission granted by the Commodity Exchange Act, exempting any person or transaction from any provision of this chapter conditionally or unconditionally and otherwise implementing the provisions of this chapter for the protection of purchasers and sellers of commodities.

      (Added to NRS by 1987, 1285; A 2003, 3179)

      NRS 91.220  Prohibited activities of commodity merchant and board of trade.

      1.  A person shall not engage in a trade or business or otherwise act as a commodity merchant unless the person:

      (a) Is registered or temporarily licensed with the Commodity Futures Trading Commission for each activity constituting the person as a commodity merchant and the registration or temporary license has not expired or been suspended or revoked; or

      (b) Is exempt from registration by virtue of the Commodity Exchange Act or of a rule of the Commodity Futures Trading Commission.

      2.  A board of trade must not trade, or provide a place for the trading of, any commodity contract or commodity option required to be traded on or subject to the rules of a contract market designated by the Commodity Futures Trading Commission unless the board of trade has been designated for the commodity contract or commodity option and the designation has not been vacated, suspended or revoked.

      (Added to NRS by 1987, 1286)

      NRS 91.230  Fraudulent conduct.  A person shall not directly or indirectly:

      1.  Cheat or defraud, or attempt to cheat or defraud, any other person or employ any device, scheme or artifice to defraud any other person;

      2.  Make any false report, enter any false record, or make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading;

      3.  Engage in any transaction, act, practice or course of business, including, without limitation, any form of advertising or solicitation, which operates or would operate as a fraud or deceit upon any person; or

      4.  Misappropriate or convert the money, security or property of any other person,

Ê in or in connection with the purchase or sale of, the offer to purchase or sell, the offer to enter into, or the entry into of, any commodity contract or commodity option subject to the provisions of NRS 91.190 or 91.200 or paragraph (b) or (d) of subsection 1 of NRS 91.210.

      (Added to NRS by 1987, 1286)

      NRS 91.240  Applicability of NRS 91.190, 91.220 and 91.230.

      1.  NRS 91.190, 91.220 and 91.230 apply to persons who sell or offer to sell when:

      (a) An offer to sell is made in this State; or

      (b) An offer to buy is made and accepted in this State.

      2.  NRS 91.190, 91.220 and 91.230 apply to persons who buy or offer to buy when:

      (a) An offer to buy is made in this State; or

      (b) An offer to sell is made and accepted in this State.

      3.  For the purposes of this section, an offer to sell or to buy is made in this State, whether or not either party is then present in this State, when the offer:

      (a) Originates from this State; or

      (b) Is directed by the offeror to this State and received at the place to which it is directed, or at any post office in this State in the case of a mailed offer.

      4.  For the purposes of this section, an offer to buy or to sell is accepted in this State when acceptance:

      (a) Is communicated to the offeror in this State; and

      (b) Has not previously been communicated to the offeror, orally or in writing, outside this State.

Ê Acceptance is communicated to the offeror in this State, whether or not either party is then present in this State, when the offeree directs it to the offeror in this State, reasonably believing the offeror to be in this State and it is received at the place to which it is directed, or at any post office in this State in the case of a mailed acceptance.

      5.  For the purposes of this section, an offer to sell or to buy is not made in this State when:

      (a) The publisher circulates or there is circulated on behalf of the publisher in this State a bona fide newspaper or other publication of general, regular and paid circulation which is not published in this State, or which is published in this State but has had more than two-thirds of its circulation outside this State during the past 12 months; or

      (b) A radio or television program originating outside this State is received in this State.

      (Added to NRS by 1987, 1291)

      NRS 91.250  Liability of principals and agents.

      1.  The act, omission, or failure of any officer, agent or other person acting for any natural person, association, partnership, corporation or trust within the scope of his or her employment or office shall be deemed the act, omission or failure of the natural person, association, partnership, corporation or trust, as well as of the officer, agent or other person.

      2.  Every person who directly or indirectly controls another person liable under any provision of this chapter, every partner, officer or director of the liable person, every person occupying a similar status or performing similar functions as the liable person and every employee of the liable person who materially aids in the violation is also liable jointly and severally with and to the same extent as the liable person, unless the person who is also liable by virtue of this provision sustains the burden of proof that he or she did not know, and in exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.

      (Added to NRS by 1987, 1286)

ENFORCEMENT; REMEDIES; PENALTIES

      NRS 91.260  Regulations and orders.  The Administrator may adopt such regulations or issue such orders as are necessary to carry out the provisions of this chapter and which are in the public interest or for the protection of investors. The regulations or orders may:

      1.  Designate items which are not commodities;

      2.  Designate precious metals; and

      3.  Prescribe forms to be used pursuant to this chapter.

      (Added to NRS by 1987, 1290)

      NRS 91.270  Orders: Procedure.

      1.  The Administrator shall commence an administrative proceeding under this chapter by entering either a notice of intent to do a contemplated act or a summary order. The notice of intent or summary order may be entered without notice or opportunity for hearing, and need not be supported by findings of fact or conclusions of law, but must be in writing.

      2.  Upon entry of a notice of intent or summary order, the Administrator shall promptly notify all interested parties that the notice or summary order has been entered and the reasons therefor. If the proceeding is pursuant to a notice of intent, the Administrator shall inform all interested parties of the date, time and place set for the hearing on the notice. If the proceeding is pursuant to a summary order, the Administrator shall inform all interested parties that they have 30 business days after the entry of the order to file a written request for a hearing on the matter with the Administrator and that the hearing will be scheduled to commence within 30 business days after the receipt of the written request.

      3.  If the proceeding is pursuant to a summary order, the Administrator, whether or not a written request for a hearing is received from any interested party, may set the matter for hearing on the Administrator’s own motion.

      4.  If no hearing is requested and none is ordered by the Administrator, the summary order automatically becomes a final order 30 business days after the entry of the order.

      5.  If a hearing is requested or ordered, the Administrator, after notice of and opportunity for a hearing, may modify or vacate the order or extend it until a final determination is made.

      6.  No final order or order after a hearing may be returned without:

      (a) Appropriate notice to all interested persons;

      (b) Opportunity for hearing by all interested persons; and

      (c) Entry of written findings of fact and conclusions of law.

Ê Every hearing in an administrative proceeding under this chapter must be public unless the Administrator grants a request joined in by all the respondents that the hearing be conducted privately.

      (Added to NRS by 1987, 1292)

      NRS 91.280  Orders: Judicial review. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      1.  Any person aggrieved by a final order of the Administrator may obtain judicial review of the order in the District Court for the First Judicial District by filing with the court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part. A copy of the petition for review must be served upon the Administrator.

      2.  Upon the filing of a petition for review, unless the court orders the taking of additional evidence pursuant to subsection 5 or 6, the court has exclusive jurisdiction of the matter, and the Administrator may not modify or set aside the order, in whole or in part.

      3.  The filing of a petition for review under subsection 1 does not, unless specifically ordered by the court, operate as a stay of the Administrator’s order, and the Administrator may enforce or ask the court to enforce the order pending the outcome of the proceedings.

      4.  Upon receipt of the petition for review, the Administrator shall certify and file in the court a copy of the order and the transcript or record of the evidence upon which it was based. If the order became final by operation of law under subsection 4 of NRS 91.270, the Administrator shall certify and file in court the summary order, evidence of its source and an affidavit certifying that no hearing has been held and that the order became final pursuant to that subsection.

      5.  If either the aggrieved party or the Administrator applies to the court for leave to submit additional evidence, and shows to the satisfaction of the court that there were reasonable grounds for failure to submit the evidence in the hearing before the Administrator or other good cause, the court may order the additional evidence to be taken by the Administrator under such conditions as the court considers proper.

      6.  If new evidence is ordered taken by the court, the Administrator may modify the findings and order by reason of the additional evidence and shall file in the court the additional evidence together with any modified or new findings or order.

      7.  The court shall review the petition based upon the original record before the Administrator as amended under subsections 5 and 6. The findings of the Administrator as to the facts, if supported by competent, material and substantive evidence, are conclusive. Based upon this review, the court may affirm, modify, enforce or set aside the order, in whole or in part.

      8.  The judgment of the court is subject to review by the Supreme Court.

      (Added to NRS by 1987, 1293)

      NRS 91.280  Orders: Judicial review. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      1.  Any person aggrieved by a final order of the Administrator may obtain judicial review of the order in the District Court for the First Judicial District by filing with the court, within 60 days after the entry of the order, a written petition praying that the order be modified or set aside in whole or in part. A copy of the petition for review must be served upon the Administrator.

      2.  Upon the filing of a petition for review, unless the court orders the taking of additional evidence pursuant to subsection 5 or 6, the court has exclusive jurisdiction of the matter, and the Administrator may not modify or set aside the order, in whole or in part.

      3.  The filing of a petition for review under subsection 1 does not, unless specifically ordered by the court, operate as a stay of the Administrator’s order, and the Administrator may enforce or ask the court to enforce the order pending the outcome of the proceedings.

      4.  Upon receipt of the petition for review, the Administrator shall certify and file in the court a copy of the order and the transcript or record of the evidence upon which it was based. If the order became final by operation of law under subsection 4 of NRS 91.270, the Administrator shall certify and file in court the summary order, evidence of its source and an affidavit certifying that no hearing has been held and that the order became final pursuant to that subsection.

      5.  If either the aggrieved party or the Administrator applies to the court for leave to submit additional evidence, and shows to the satisfaction of the court that there were reasonable grounds for failure to submit the evidence in the hearing before the Administrator or other good cause, the court may order the additional evidence to be taken by the Administrator under such conditions as the court considers proper.

      6.  If new evidence is ordered taken by the court, the Administrator may modify the findings and order by reason of the additional evidence and shall file in the court the additional evidence together with any modified or new findings or order.

      7.  The court shall review the petition based upon the original record before the Administrator as amended under subsections 5 and 6. The findings of the Administrator as to the facts, if supported by competent, material and substantive evidence, are conclusive. Based upon this review, the court may affirm, modify, enforce or set aside the order, in whole or in part.

      8.  The judgment of the court is subject to review by the appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution.

      (Added to NRS by 1987, 1293; A 2013, 1745, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 91.290  Appointment of Administrator as attorney to receive service of process.

      1.  Every applicant for registration under this chapter shall file with the Administrator, in the form prescribed by the Administrator, an irrevocable consent appointing the Administrator or his or her successor in office as the applicant’s attorney to receive service of any lawful process in any noncriminal suit, action or proceeding against the applicant or his or her successor, executor or administrator which arises under this chapter or any regulation adopted or order issued under this chapter after the consent has been filed, with the same force and validity as if served personally on the person filing the consent.

      2.  When a person, including a nonresident of this State, engages in conduct prohibited or made actionable by this chapter, or by any regulation or order of the Administrator, the engaging in the conduct shall be deemed to constitute the appointment of the Administrator as the person’s attorney to receive service of any lawful process in a noncriminal proceeding against the person, a successor or a personal representative, which grows out of that conduct and which is brought under this chapter or any regulation or order of the Administrator with the same force and validity as if served personally.

      3.  Service under subsection 1 or 2 may be made by leaving a copy of the process in the office of the Administrator, but it is not effective unless:

      (a) The plaintiff, who may be the Administrator in a suit, action or proceeding instituted by the Administrator, forthwith sends notice of the service and a copy of the process by registered mail to the defendant or respondent at the last address known to the Administrator; and

      (b) The plaintiff’s affidavit of compliance with this subsection is filed in the case on or before the date for return of the process, if any, or within such further time as the court allows.

      (Added to NRS by 1987, 1291)

      NRS 91.300  Investigations and subpoenas.

      1.  The Administrator may make investigations, within or outside of this State, as the Administrator finds necessary or appropriate to:

      (a) Determine whether any person has violated, or is about to violate, any provision of this chapter or any regulation or order of the Administrator; or

      (b) Aid in the enforcement of this chapter.

      2.  The Administrator may publish information concerning any violation of this chapter or any regulation or order of the Administrator.

      3.  For the purposes of any investigation or proceeding under this chapter, the Administrator, or an officer or employee designated by the Administrator, may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondence, memoranda, agreements or other records which the Administrator finds to be relevant or material to the inquiry.

      4.  If a person does not give testimony or produce the records required by the Administrator or a designated officer or employee pursuant to an administrative subpoena, the Administrator or designated officer or employee may apply for a court order compelling compliance with the subpoena or the giving of the required testimony.

      5.  The request for an order of compliance may be addressed to either:

      (a) The District Court for the First Judicial District;

      (b) The district court for any judicial district where service may be obtained on the person refusing to testify or produce, if the person is within this State; or

      (c) The appropriate court of the state having jurisdiction over the person refusing to testify or produce, if the person is outside of this State.

      6.  If the activities constituting an alleged violation for which the information is sought would be a violation of this chapter had the activities occurred in this State, the Administrator may issue and apply to enforce subpoenas, in the manner set forth in subsection 5, in this State at the request of a securities agency or administrator of another state.

      (Added to NRS by 1987, 1287; A 1991, 611; 2003, 3180)

      NRS 91.310  Enforcement by Administrator.

      1.  If the Administrator believes, whether or not based upon an investigation conducted under NRS 91.300, that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of this chapter or a regulation adopted or order issued pursuant to its provisions, the Administrator may:

      (a) Issue an order to cease and desist;

      (b) Take disciplinary action against a licensed person;

      (c) Issue an order imposing a civil penalty in an amount which may not exceed $10,000 for any single violation or $100,000 for multiple violations in a single proceeding or a series of related proceedings; or

      (d) Initiate any of the actions specified in subsection 2.

      2.  The Administrator may institute any of the following actions in the district courts of this State, or in the appropriate courts of another state, in addition to any legal or equitable remedies otherwise available:

      (a) An action for a declaratory judgment;

      (b) An action for a prohibitory or mandatory injunction to enjoin the violation and to ensure compliance with this chapter or any regulation or order of the Administrator;

      (c) An action for disgorgement;

      (d) An action for appointment of a receiver or conservator for the defendant or the defendant’s assets; or

      (e) An action to enjoin permanently any person from acting as a commodity broker-dealer or a commodity sales representative.

      (Added to NRS by 1987, 1287)

      NRS 91.320  Remedies for violation of this chapter.

      1.  Upon a proper showing by the Administrator that a person has violated, or is about to violate, any provision of this chapter or any regulation or order of the Administrator, the district court may grant appropriate legal or equitable remedies.

      2.  Upon a showing of a violation of this chapter or a regulation or order of the Administrator, the court, in addition to traditional legal and equitable remedies, including a temporary restraining order, a permanent or temporary prohibitory or mandatory injunction, and a writ of prohibition or mandamus, may grant the following special remedies:

      (a) The imposition of a civil penalty in an amount which may not exceed $10,000 for any single violation or $100,000 for multiple violations in a single proceeding or a series of related proceedings;

      (b) Disgorgement;

      (c) A declaratory judgment;

      (d) Restitution to investors wishing restitution;

      (e) The appointment of a receiver or conservator for the defendant or the defendant’s assets; and

      (f) An injunction permanently enjoining a defendant from acting as a commodity broker-dealer or a commodity sales representative.

      3.  Upon a showing that the defendant is about to violate this chapter or a rule or order of the Administrator, the court may grant the following remedies:

      (a) A temporary restraining order;

      (b) A temporary or permanent injunction;

      (c) A writ of prohibition or mandamus; and

      (d) An order appointing a receiver or conservator for the defendant or the defendant’s assets.

      4.  A court shall not require the Administrator to post a bond in any official action under this chapter.

      (Added to NRS by 1987, 1288)

      NRS 91.330  Remedies for violation of similar law of another jurisdiction.

      1.  Upon a proper showing by the Administrator or a securities or commodity agency of another state that a person has violated, or is about to violate, any provision of the commodity code of that state or any rule or order of the Administrator or securities or commodity agency of that state, a district court in this State may grant appropriate legal and equitable remedies.

      2.  Upon a showing of a violation of the securities or commodity act of the foreign state or a rule or order of the Administrator or securities or commodity agency of the foreign state, the court, in addition to traditional legal or equitable remedies, including a temporary restraining order, a permanent or temporary prohibitory or mandatory injunction and a writ of prohibition or mandamus, may grant the following special remedies:

      (a) Disgorgement; and

      (b) The appointment of a receiver, conservator or ancillary receiver or conservator for the defendant or the defendant’s assets located in this State.

      3.  Upon a showing that the defendant is about to violate the securities or commodity act of the foreign state or a rule or order of the Administrator or securities or commodity agency of the foreign state, the court may grant the following remedies:

      (a) A temporary restraining order;

      (b) A temporary or permanent injunction;

      (c) A writ of prohibition or mandamus; and

      (d) An order appointing a receiver, conservator or ancillary receiver or conservator for the defendant or the defendant’s assets located in this State.

      (Added to NRS by 1987, 1288)

      NRS 91.340  Criminal penalties.

      1.  Except as otherwise provided in subsection 2, a person who willfully violates:

      (a) Any provision of this chapter; or

      (b) Any regulation or order of the Administrator under this chapter,

Ê is guilty of a category C felony and shall be punished as provided in NRS 193.130, or by a fine of not more than $20,000, or by both fine and the punishment provided in NRS 193.130, for each violation. In addition to any other penalty, the court shall order the person to pay restitution.

      2.  A person convicted of violating a regulation or order under this chapter may be fined, but must not be imprisoned, if the person proves the person had no knowledge of the regulation or order.

      3.  The Administrator may refer such evidence as is available concerning violations of this chapter or any regulation or order of the Administrator to the Attorney General or the proper district attorney, who may, with or without such a reference from the Administrator, institute the appropriate criminal proceeding under this chapter.

      (Added to NRS by 1987, 1289; A 1993, 938; 1995, 1242)