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ê2007 Statutes of Nevada, Page 1315ê

 

CHAPTER 325, AB 25

Assembly Bill No. 25–Committee on Judiciary

 

CHAPTER 325

 

AN ACT relating to business associations; requiring certain business associations to maintain certain information concerning their ownership at the registered office or principal place of business; authorizing the Secretary of State to suspend or revoke the right of certain business associations to transact business under certain circumstances; revising the provisions pertaining to the name of a foreign limited partnership; making various other changes pertaining to business associations; providing for the licensing and regulation of transfer agents; providing for the correction of certain records filed with the Office of the Secretary of State; applying prospectively the requirements applicable to certain documents filed with the Office of the Secretary of State that contain certain identifying terms relating to architecture, interior design or residential design; and providing other matters properly relating thereto.

 

[Approved: June 4, 2007]

 

Legislative Counsel’s Digest:

      Sections 1, 2, 5-13, 17-29, 31-40 and 56-60 of this bill: (1) require certain business associations to maintain certain information concerning their ownership at the registered office or principal place of business; and (2) authorize the Secretary of State to suspend or revoke the right of such business associations to transact business in this State if they fail to comply with the requirements pertaining to such information.

      Section 4 of this bill sets forth the information required to be provided to the district court by an applicant for custodianship of a corporation and the information required to be provided to the Secretary of State by the custodian. (NRS 78.347)

      Section 30 of this bill allows a foreign limited partnership to abbreviate its name. (NRS 88.585)

      Sections 41-51 of this bill provide for the licensing and regulation of transfer agents.

      Section 54 of this bill authorizes the Secretary of State to adopt regulations prescribing procedures for correcting certain fraudulent or false records filed with the Office of the Secretary of State.

      Section 55 of this bill amends Assembly Bill No. 26 of this session to apply prospectively the provisions of that bill which add requirements applicable to certain documents filed with the Office of the Secretary of State that contain certain identifying terms relating to architecture, interior design or residential design.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 78 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  In addition to any records required to be kept at the registered office pursuant to NRS 78.105, a corporation that is not a publicly traded corporation shall maintain at its registered office or principal place of business in this State:

      (a) A current list of its owners of record; or

      (b) A statement indicating where such a list is maintained.

 


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ê2007 Statutes of Nevada, Page 1316 (Chapter 325, AB 25)ê

 

      2.  The corporation shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a corporation to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a corporation fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the corporate charter.

      5.  The Secretary of State shall not reinstate or revive a charter that was revoked or suspended pursuant to subsection 4 unless:

      (a) The corporation complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the corporate charter.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 2.  NRS 78.180 is hereby amended to read as follows:

      78.180  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 1 of this act, the Secretary of State shall reinstate a corporation which has forfeited or which forfeits its right to transact business pursuant to the provisions of this chapter and shall restore to the corporation its right to carry on business in this State, and to exercise its corporate privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 78.150;

             (2) The statement required by NRS 78.153, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 78.150 and 78.170 for each year or portion thereof during which it failed to file each required annual list in a timely manner;

             (2) The fee set forth in NRS 78.153, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the corporation, he shall issue to the corporation a certificate of reinstatement if the corporation:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to subsection 8 of NRS 78.785.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid, and the revocation of the charter occurred only by reason of failure to pay the fees and penalties.

      4.  If a corporate charter has been revoked pursuant to the provisions of this chapter and has remained revoked for a period of 5 consecutive years, the charter must not be reinstated.

 


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ê2007 Statutes of Nevada, Page 1317 (Chapter 325, AB 25)ê

 

      Sec. 3.  NRS 78.185 is hereby amended to read as follows:

      78.185  1.  Except as otherwise provided in subsection 2, if a corporation applies to reinstate or revive its charter but its name has been legally reserved or acquired by another artificial person formed, organized, registered or qualified pursuant to the provisions of this title whose name is on file with the Office of the Secretary of State or reserved in the Office of the Secretary of State pursuant to the provisions of this title, the corporation shall in its application for reinstatement submit in writing to the Secretary of State some other name under which it desires its corporate existence to be reinstated or revived. If that name is distinguishable from all other names reserved or otherwise on file, the Secretary of State shall [reinstatement] reinstate the corporation under that new name. Upon the issuance of a certificate of reinstatement or revival under that new name, the articles of incorporation of the applying corporation shall be deemed to reflect the new name without the corporation having to comply with the provisions of NRS 78.385, 78.390 or 78.403.

      2.  If the applying corporation submits the written, acknowledged consent of the artificial person having a name, or the person who has reserved a name, which is not distinguishable from the old name of the applying corporation or a new name it has submitted, it may be reinstated or revived under that name.

      3.  For the purposes of this section, a proposed name is not distinguishable from a name on file or reserved name solely because one or the other contains distinctive lettering, a distinctive mark, a trademark or a trade name, or any combination of these.

      4.  The Secretary of State may adopt regulations that interpret the requirements of this section.

      Sec. 4.  NRS 78.347 is hereby amended to read as follows:

      78.347  1.  Any stockholder may apply to the district court to appoint one or more persons to be custodians of the corporation, and, if the corporation is insolvent, to be receivers of the corporation when:

      (a) The business of the corporation is suffering or is threatened with irreparable injury because the directors are so divided respecting the management of the affairs of the corporation that a required vote for action by the board of directors cannot be obtained and the stockholders are unable to terminate this division; or

      (b) The corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve, liquidate or distribute its assets in accordance with this chapter.

      2.  An applicant on whose behalf a stockholder has applied to the district court for a custodianship pursuant to subsection 1 shall provide the following information, along with an affidavit attesting that such information is true and correct, to the district court:

      (a) A detailed list of all previous applications to a court in any jurisdiction for a custodianship of a publicly traded corporation that were filed by the applicant or an affiliate or subsidiary of the applicant.

      (b) If an application listed in paragraph (a) was approved, a detailed description of the activities performed during the custodianship by the applicant or the affiliate or subsidiary of the applicant.

      (c) A description of the current corporate status and business operation of any publicly traded corporation for which the applicant and any affiliate or subsidiary of the applicant has held a custodianship.

 


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ê2007 Statutes of Nevada, Page 1318 (Chapter 325, AB 25)ê

 

      (d) A full disclosure of any and all previous criminal, administrative, civil or National Association of Securities Dealers, Inc., or Securities and Exchange Commission investigations, violations or convictions concerning the applicant and any affiliate or subsidiary of the applicant.

      (e) Evidence of reasonable efforts by the applicant to contact the officers and directors of the corporation for which the custodianship is sought.

      (f) Evidence of a demand by the applicant to the officers and directors of the corporation for which the custodianship is sought that the corporation comply with the provisions of chapter 78 of NRS and that the applicant did not receive a response.

      3.  The district court shall order any applicant who is granted custodianship pursuant to this section to:

      (a) Comply with the provisions of NRS 78.180 or 80.170, as applicable. The custodian shall submit evidence of compliance with this paragraph to the district court.

      (b) Provide reasonable notice to all shareholders of record of a shareholder meeting to be held within a reasonable time after an application for custodianship or receivership has been granted. The custodian shall submit evidence of compliance with this paragraph to the district court.

      (c) Provide the district court with a report of the actions taken at the shareholder meeting noticed by the custodian.

      (d) Provide the district court with periodic reports, at intervals to be determined by the court, of the activities of the custodian and the board of directors and the progress of the corporation.

      (e) Provide any other information deemed necessary by the court.

      4.  Within 10 days after being appointed custodian of a Nevada publicly traded corporation, the custodian shall file with the Secretary of State an amendment to the articles of incorporation containing the following information:

      (a) Disclosures of any previous criminal, administrative, civil or National Association of Securities Dealer, Inc., or Securities and Exchange Commission investigations, violations or convictions concerning the custodian and any affiliate of the custodian.

      (b) A statement indicating that:

             (1) Reasonable attempts were made to contact the officers or directors of the corporation to request that the corporation comply with corporate formalities and to continue its business.

             (2) The custodian is in fact continuing the business and attempting to further the interests of the shareholders.

             (3) The custodian will reinstate or maintain the corporate charter.

      (c) Any other information required by regulation to be submitted to the Secretary of State.

      5.  The Secretary of State may adopt regulations to administer the provisions of subsection 4.

      6.  A custodian appointed pursuant to this section has all the powers and title of a trustee appointed under NRS 78.590, 78.635 and 78.650, but the authority of the custodian is to continue the business of the corporation and not to liquidate its affairs or distribute its assets, except when the district court so orders and except in cases arising pursuant to paragraph (b) of subsection 1.

 


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ê2007 Statutes of Nevada, Page 1319 (Chapter 325, AB 25)ê

 

      Sec. 5.  NRS 78.730 is hereby amended to read as follows:

      78.730  1.  [Any] Except as otherwise provided in section 1 of this act, any corporation which did exist or is existing under the laws of this State may, upon complying with the provisions of NRS 78.180, procure a renewal or revival of its charter for any period, together with all the rights, franchises, privileges and immunities, and subject to all its existing and preexisting debts, duties and liabilities secured or imposed by its original charter and amendments thereto, or existing charter, by filing:

      (a) A certificate with the Secretary of State, which must set forth:

             (1) The name of the corporation, which must be the name of the corporation at the time of the renewal or revival, or its name at the time its original charter expired.

             (2) The name of the person designated as the resident agent of the corporation, his street address for the service of process, and his mailing address if different from his street address.

             (3) The date when the renewal or revival of the charter is to commence or be effective, which may be, in cases of a revival, before the date of the certificate.

             (4) Whether or not the renewal or revival is to be perpetual, and, if not perpetual, the time for which the renewal or revival is to continue.

             (5) That the corporation desiring to renew or revive its charter is, or has been, organized and carrying on the business authorized by its existing or original charter and amendments thereto, and desires to renew or continue through revival its existence pursuant to and subject to the provisions of this chapter.

      (b) A list of its president, secretary and treasurer, or the equivalent thereof, and all of its directors and their addresses, either residence or business.

      2.  A corporation whose charter has not expired and is being renewed shall cause the certificate to be signed by an officer of the corporation. The certificate must be approved by a majority of the voting power of the shares.

      3.  A corporation seeking to revive its original or amended charter shall cause the certificate to be signed by a person or persons designated or appointed by the stockholders of the corporation. The signing and filing of the certificate must be approved by the written consent of stockholders of the corporation holding at least a majority of the voting power and must contain a recital that this consent was secured. If no stock has been issued, the certificate must contain a statement of that fact, and a majority of the directors then in office may designate the person to sign the certificate. The corporation shall pay to the Secretary of State the fee required to establish a new corporation pursuant to the provisions of this chapter.

      4.  The filed certificate, or a copy thereof which has been certified under the hand and seal of the Secretary of State, must be received in all courts and places as prima facie evidence of the facts therein stated and of the existence and incorporation of the corporation therein named.

      Sec. 6.  Chapter 80 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  A foreign corporation that is not a publicly traded corporation shall maintain at its registered office or principal place of business in this State:

      (a) A current list of its owners of record; or

      (b) A statement indicating where such a list is maintained.

 


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ê2007 Statutes of Nevada, Page 1320 (Chapter 325, AB 25)ê

 

      2.  The foreign corporation shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a foreign corporation to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a foreign corporation fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the right of the foreign corporation to transact business in this State.

      5.  The Secretary of State shall not reinstate or revive the right of a foreign corporation to transact business that was revoked or suspended pursuant to subsection 4 unless:

      (a) The foreign corporation complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the right of the foreign corporation to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 7.  NRS 80.170 is hereby amended to read as follows:

      80.170  1.  Except as otherwise provided in subsections 3 and 4 [,] or section 6 of this act, the Secretary of State shall reinstate a corporation which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the corporation its right to transact business in this State, and to exercise its corporate privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list as provided in NRS 80.110 and 80.140;

             (2) The statement required by NRS 80.115, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 80.110 and 80.150 for each year or portion thereof that its right to transact business was forfeited;

             (2) The fee set forth in NRS 80.115, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the corporation, he shall issue to the corporation a certificate of reinstatement if the corporation:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to subsection 8 of NRS 78.785.

 


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ê2007 Statutes of Nevada, Page 1321 (Chapter 325, AB 25)ê

 

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a corporation to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right is not subject to reinstatement.

      Sec. 8.  Chapter 82 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  A corporation shall maintain at its registered office or principal place of business in this State:

      (a) A current list of its owners of record; or

      (b) A statement indicating where such a list is maintained.

      2.  The corporation shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a corporation to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a corporation fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the right of the corporation to transact business in this State.

      5.  The Secretary of State shall not reinstate or revive the right of a corporation to transact business in this State that was revoked or suspended pursuant to subsection 4 unless:

      (a) The corporation complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the right of the corporation to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 9.  NRS 82.5237 is hereby amended to read as follows:

      82.5237  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 8 of this act, the Secretary of State shall reinstate a foreign nonprofit corporation which has forfeited or which forfeits its right to transact business pursuant to the provisions of NRS 82.523 to 82.5239, inclusive, and restore to the foreign nonprofit corporation its right to transact business in this State, and to exercise its corporate privileges and immunities, if it:

      (a) Files with the Secretary of State a list as provided in NRS 82.523; and

      (b) Pays to the Secretary of State:

 


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ê2007 Statutes of Nevada, Page 1322 (Chapter 325, AB 25)ê

 

             (1) The filing fee and penalty set forth in NRS 82.523 and 82.5235 for each year or portion thereof that its right to transact business was forfeited; and

             (2) A fee of $100 for reinstatement.

      2.  When the Secretary of State reinstates the foreign nonprofit corporation, he shall issue to the foreign nonprofit corporation a certificate of reinstatement if the foreign nonprofit corporation:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the fees as provided in subsection 8 of NRS 78.785.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a foreign nonprofit corporation to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right to transact business must not be reinstated.

      Sec. 10.  NRS 82.546 is hereby amended to read as follows:

      82.546  1.  [Any] Except as otherwise provided in section 8 of this act, any corporation which did exist or is existing pursuant to the laws of this State may, upon complying with the provisions of NRS 78.150 and 82.193, procure a renewal or revival of its charter for any period, together with all the rights, franchises, privileges and immunities, and subject to all its existing and preexisting debts, duties and liabilities secured or imposed by its original charter and amendments thereto, or its existing charter, by filing:

      (a) A certificate with the Secretary of State, which must set forth:

             (1) The name of the corporation, which must be the name of the corporation at the time of the renewal or revival, or its name at the time its original charter expired.

             (2) The name and street address of the lawfully designated resident agent of the filing corporation, and his mailing address if different from his street address.

             (3) The date when the renewal or revival of the charter is to commence or be effective, which may be, in cases of a revival, before the date of the certificate.

             (4) Whether or not the renewal or revival is to be perpetual, and, if not perpetual, the time for which the renewal or revival is to continue.

             (5) That the corporation desiring to renew or revive its charter is, or has been, organized and carrying on the business authorized by its existing or original charter and amendments thereto, and desires to renew or continue through revival its existence pursuant to and subject to the provisions of this chapter.

      (b) A list of its president, secretary and treasurer and all of its directors and their mailing or street addresses, either residence or business.

      2.  A corporation whose charter has not expired and is being renewed shall cause the certificate to be signed by an officer of the corporation. The certificate must be approved by a majority of the last-appointed surviving directors.

      3.  A corporation seeking to revive its original or amended charter shall cause the certificate to be signed by its president or vice president and secretary or assistant secretary. The signing and filing of the certificate must be approved unanimously by the last-appointed surviving directors of the corporation and must contain a recital that unanimous consent was secured.

 


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ê2007 Statutes of Nevada, Page 1323 (Chapter 325, AB 25)ê

 

corporation and must contain a recital that unanimous consent was secured. The corporation shall pay to the Secretary of State the fee required to establish a new corporation pursuant to the provisions of this chapter.

      4.  The filed certificate, or a copy thereof which has been certified under the hand and seal of the Secretary of State, must be received in all courts and places as prima facie evidence of the facts therein stated and of the existence and incorporation of the corporation named therein.

      Sec. 11.  Chapter 86 of NRS is hereby amended by adding thereto the provisions set forth as sections 12 and 13 of this act.

      Sec. 12.  1.  In addition to any records required to be kept pursuant to NRS 86.241, a limited-liability company shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each member and manager; or

      (b) A statement indicating where such a list is maintained.

      2.  A limited-liability company shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a limited-liability company to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a limited-liability company fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the charter of the limited-liability company.

      5.  The Secretary of State shall not reinstate or revive a charter that was revoked or suspended pursuant to subsection 4 unless:

      (a) The limited-liability company complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the charter.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 13.  1.  A foreign limited-liability company shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each member and manager; or

      (b) A statement indicating where such a list is maintained.

      2.  The foreign limited-liability company shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

 


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ê2007 Statutes of Nevada, Page 1324 (Chapter 325, AB 25)ê

 

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a foreign limited-liability company to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a foreign limited-liability company fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the registration of the foreign limited-liability company.

      5.  The Secretary of State shall not reinstate or revive a registration that was revoked or suspended pursuant to subsection 4 unless:

      (a) The foreign limited-liability company complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the registration.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 14.  NRS 86.263 is hereby amended to read as follows:

      86.263  1.  A limited-liability company shall, on or before the last day of the first month after the filing of its articles of organization with the Secretary of State, file with the Secretary of State, on a form furnished by him, a list that contains:

      (a) The name of the limited-liability company;

      (b) The file number of the limited-liability company, if known;

      (c) The names and titles of all of its managers or, if there is no manager, all of its managing members;

      (d) The address, either residence or business, of each manager or managing member listed, following the name of the manager or managing member;

      (e) The name and street address of its lawfully designated resident agent in this State; and

      (f) The signature of a manager or managing member of the limited-liability company certifying that the list is true, complete and accurate.

      2.  The limited-liability company shall [annually] thereafter, on or before the last day of the month in which the anniversary date of its organization occurs, file with the Secretary of State, on a form furnished by him, an [amended] annual list containing all of the information required in subsection 1.

      3.  Each list required by subsections 1 and 2 must be accompanied by a declaration under penalty of perjury that the limited-liability company:

      (a) Has complied with the provisions of NRS 360.780; and

      (b) Acknowledges that pursuant to NRS 239.330, it is a category C felony to knowingly offer any false or forged instrument for filing in the Office of the Secretary of State.

      4.  Upon filing:

      (a) The initial list required by subsection 1, the limited-liability company shall pay to the Secretary of State a fee of $125.

      (b) Each annual list required by subsection 2, the limited-liability company shall pay to the Secretary of State a fee of $125.

 


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ê2007 Statutes of Nevada, Page 1325 (Chapter 325, AB 25)ê

 

      5.  If a manager or managing member of a limited-liability company resigns and the resignation is not reflected on the annual or amended list of managers and managing members, the limited-liability company or the resigning manager or managing member shall pay to the Secretary of State a fee of $75 to file the resignation.

      6.  The Secretary of State shall, 90 days before the last day for filing each list required by subsection 2, cause to be mailed to each limited-liability company which is required to comply with the provisions of this section, and which has not become delinquent, a notice of the fee due under subsection 4 and a reminder to file a list required by subsection 2. Failure of any company to receive a notice or form does not excuse it from the penalty imposed by law.

      7.  If the list to be filed pursuant to the provisions of subsection 1 or 2 is defective or the fee required by subsection 4 is not paid, the Secretary of State may return the list for correction or payment.

      8.  An annual list for a limited-liability company not in default received by the Secretary of State more than 90 days before its due date shall be deemed an amended list for the previous year.

      Secs. 15 and 16.  (Deleted by amendment.)

      Sec. 17.  NRS 86.276 is hereby amended to read as follows:

      86.276  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 12 of this act, the Secretary of State shall reinstate any limited-liability company which has forfeited or which forfeits its right to transact business pursuant to the provisions of this chapter and shall restore to the company its right to carry on business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 86.263;

             (2) The statement required by NRS 86.264, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 86.263 and 86.272 for each year or portion thereof during which it failed to file in a timely manner each required annual list;

             (2) The fee set forth in NRS 86.264, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the limited-liability company, he shall issue to the company a certificate of reinstatement if the limited-liability company:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 86.561.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid, and the revocation of the charter occurred only by reason of failure to pay the fees and penalties.

      4.  If a company’s charter has been revoked pursuant to the provisions of this chapter and has remained revoked for a period of 5 consecutive years, the charter must not be reinstated.

      Sec.  18.  NRS 86.5467 is hereby amended to read as follows:

      86.5467  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 13 of this act, the Secretary of State shall reinstate a foreign limited-liability company which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the foreign limited-liability company its right to transact business in this State, and to exercise its privileges and immunities, if it:

 


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ê2007 Statutes of Nevada, Page 1326 (Chapter 325, AB 25)ê

 

transact business under the provisions of this chapter and shall restore to the foreign limited-liability company its right to transact business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 86.5461;

             (2) The statement required by NRS 86.5462, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 86.5461 and 86.5465 for each year or portion thereof that its right to transact business was forfeited;

             (2) The fee set forth in NRS 86.5462, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the foreign limited-liability company, he shall issue to the foreign limited-liability company a certificate of reinstatement if the foreign limited-liability company:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 86.561.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a foreign limited-liability company to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right must not be reinstated.

      Sec. 19.  NRS 86.580 is hereby amended to read as follows:

      86.580  1.  [A] Except as otherwise provided in section 12 of this act, a limited-liability company which did exist or is existing pursuant to the laws of this State may, upon complying with the provisions of NRS 86.276, procure a renewal or revival of its charter for any period, together with all the rights, franchises, privileges and immunities, and subject to all its existing and preexisting debts, duties and liabilities secured or imposed by its original charter and amendments thereto, or existing charter, by filing:

      (a) A certificate with the Secretary of State, which must set forth:

             (1) The name of the limited-liability company, which must be the name of the limited-liability company at the time of the renewal or revival, or its name at the time its original charter expired.

             (2) The name of the person lawfully designated as the resident agent of the limited-liability company, his street address for the service of process, and his mailing address if different from his street address.

             (3) The date when the renewal or revival of the charter is to commence or be effective, which may be, in cases of a revival, before the date of the certificate.

             (4) Whether or not the renewal or revival is to be perpetual, and, if not perpetual, the time for which the renewal or revival is to continue.

             (5) That the limited-liability company desiring to renew or revive its charter is, or has been, organized and carrying on the business authorized by its existing or original charter and amendments thereto, and desires to renew or continue through revival its existence pursuant to and subject to the provisions of this chapter.

 


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ê2007 Statutes of Nevada, Page 1327 (Chapter 325, AB 25)ê

 

      (b) A list of its managers, or if there are no managers, all its managing members and their mailing or street addresses, either residence or business.

      2.  A limited-liability company whose charter has not expired and is being renewed shall cause the certificate to be signed by its manager, or if there is no manager, by a person designated by its members. The certificate must be approved by a majority in interest.

      3.  A limited-liability company seeking to revive its original or amended charter shall cause the certificate to be signed by a person or persons designated or appointed by the members. The signing and filing of the certificate must be approved by the written consent of a majority in interest and must contain a recital that this consent was secured. The limited-liability company shall pay to the Secretary of State the fee required to establish a new limited-liability company pursuant to the provisions of this chapter.

      4.  The filed certificate, or a copy thereof which has been certified under the hand and seal of the Secretary of State, must be received in all courts and places as prima facie evidence of the facts therein stated and of the existence of the limited-liability company therein named.

      Sec. 20.  Chapter 87 of NRS is hereby amended by adding thereto the provisions set forth as sections 21 and 22 of this act.

      Sec. 21.  1.  A registered limited-liability partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of its managing partners; or

      (b) A statement indicating where such a list is maintained.

      2.  The registered limited-liability partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a registered limited-liability partnership to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a registered limited-liability partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the certificate of registration.

      5.  The Secretary of State shall not reinstate or revive a certificate of registration that was revoked or suspended pursuant to subsection 4 unless:

      (a) The registered limited-liability partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the certificate of registration.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 22.  1.  A foreign registered limited-liability partnership shall maintain at its registered office or principal place of business in this State:

 


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ê2007 Statutes of Nevada, Page 1328 (Chapter 325, AB 25)ê

 

      (a) A current list of its managing partners; or

      (b) A statement indicating where such a list is maintained.

      2.  The foreign registered limited-liability partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a foreign registered limited-liability partnership to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a foreign registered limited-liability partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the right of the foreign registered limited-liability partnership to transact business in this State.

      5.  The Secretary of State shall not reinstate or revive the right of a foreign registered limited-liability partnership to transact business in this State that was revoked or suspended pursuant to subsection 4 unless:

      (a) The registered limited-liability partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the right of the foreign registered limited-liability partnership to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 23.  NRS 87.530 is hereby amended to read as follows:

      87.530  1.  Except as otherwise provided in subsection 3 [,] and section 21 of this act, the Secretary of State shall reinstate the certificate of registration of a registered limited-liability partnership that is revoked pursuant to NRS 87.520 if the registered limited-liability partnership:

      (a) Files with the Secretary of State:

             (1) The information required by NRS 87.510; and

             (2) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The fee required to be paid pursuant to NRS 87.510;

             (2) Any penalty required to be paid pursuant to NRS 87.520; and

             (3) A reinstatement fee of $300.

      2.  When the Secretary of State reinstates the registered limited-liability partnership, he shall issue to the registered limited-liability partnership a certificate of reinstatement if the registered limited-liability partnership:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 87.550.

 


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ê2007 Statutes of Nevada, Page 1329 (Chapter 325, AB 25)ê

 

      3.  The Secretary of State shall not reinstate the certificate of registration of a registered limited-liability partnership if the certificate was revoked pursuant to the provisions of this chapter at least 5 years before the date of the proposed reinstatement.

      Sec. 24.  NRS 87.5435 is hereby amended to read as follows:

      87.5435  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 22 of this act, the Secretary of State shall reinstate a foreign registered limited-liability partnership which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the foreign registered limited-liability partnership its right to transact business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 87.541; and

             (2) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 87.541 and 87.5425 for each year or portion thereof that its right to transact business was forfeited; and

             (2) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the foreign registered limited-liability partnership, he shall issue to the foreign registered limited-liability partnership a certificate of reinstatement if the foreign registered limited-liability partnership:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 87.550.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a foreign registered limited-liability partnership to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right to transact business must not be reinstated.

      Sec. 25.  Chapter 88 of NRS is hereby amended by adding thereto the provisions set forth as sections 26, 27 and 28 of this act.

      Sec. 26.  1.  A limited partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each general partner; or

      (b) A statement indicating where such a list is maintained.

      2.  The limited partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a limited partnership to:

 


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ê2007 Statutes of Nevada, Page 1330 (Chapter 325, AB 25)ê

 

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a limited partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the right of the limited partnership to transact any business in this State.

      5.  The Secretary of State shall not reinstate or revive the right of a limited partnership to transact any business in this State that was revoked or suspended pursuant to subsection 4 unless:

      (a) The limited partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the right of the limited partnership to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 27.  1.  A foreign limited partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each general partner; or

      (b) A statement indicating where such a list is maintained.

      2.  The foreign limited partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a foreign limited partnership to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a foreign limited partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the certificate authorizing the foreign limited partnership to transact business in this State.

      5.  The Secretary of State shall not reinstate or revive a certificate authorizing a foreign limited partnership to transact business in this State that was revoked or suspended pursuant to subsection 4 unless:

      (a) The foreign limited partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the certificate authorizing the foreign limited partnership to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

 


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ê2007 Statutes of Nevada, Page 1331 (Chapter 325, AB 25)ê

 

      Sec. 28.  1.  A registered limited-liability limited partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each general partner; or

      (b) A statement indicating where such a list is maintained.

      2.  The registered limited-liability limited partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a registered limited-liability limited partnership to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a registered limited-liability limited partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the certificate of registration.

      5.  The Secretary of State shall not reinstate or revive a certificate of registration that was revoked or suspended pursuant to subsection 4 unless:

      (a) The registered limited-liability limited partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the certificate of registration.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 29.  NRS 88.410 is hereby amended to read as follows:

      88.410  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 26 of this act, the Secretary of State shall reinstate any limited partnership which has forfeited or which forfeits its right to transact business under the provisions of this chapter and restore to the limited partnership its right to carry on business in this State, and to exercise its privileges and immunities if it:

      (a) Files with the Secretary of State:

             (1) The list required pursuant to NRS 88.395;

             (2) The statement required by NRS 88.397, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 88.395 and 88.400 for each year or portion thereof during which the certificate has been revoked;

             (2) The fee set forth in NRS 88.397, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the limited partnership, he shall issue to the limited partnership a certificate of reinstatement if the limited partnership:

 


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ê2007 Statutes of Nevada, Page 1332 (Chapter 325, AB 25)ê

 

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 88.415.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid, and the revocation occurred only by reason of failure to pay the fees and penalties.

      4.  If a limited partnership’s certificate has been revoked pursuant to the provisions of this chapter and has remained revoked for a period of 5 years, the certificate must not be reinstated.

      Sec. 30.  NRS 88.585 is hereby amended to read as follows:

      88.585  Except as otherwise provided in NRS 88.609, a foreign limited partnership may register with the Secretary of State under any name, whether or not it is the name under which it is registered in its state of organization, that [includes without abbreviation] contains the words “limited partnership” or the abbreviation “LP” or “L.P.” and that could be registered by a domestic limited partnership.

      Sec. 31.  NRS 88.594 is hereby amended to read as follows:

      88.594  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 27 of this act, the Secretary of State shall reinstate a foreign limited partnership which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the foreign limited partnership its right to transact business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 88.591;

             (2) The statement required by NRS 88.5915, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 88.591 and 88.593 for each year or portion thereof that its right to transact business was forfeited;

             (2) The fee set forth in NRS 88.5915, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the foreign limited partnership, he shall issue to the foreign limited partnership a certificate of reinstatement if the foreign limited partnership:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 88.415.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a foreign limited partnership to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right is not subject to reinstatement.

      Sec. 32.  Chapter 88A of NRS is hereby amended by adding thereto the provisions set forth as sections 33 and 34 of this act.

      Sec. 33.  1.  A business trust shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the ledger, duplicate ledger or statement described in subsection 1 of NRS 88A.340.

 


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ê2007 Statutes of Nevada, Page 1333 (Chapter 325, AB 25)ê

 

described in subsection 1 of NRS 88A.340. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the ledger, duplicate ledger or statement described in subsection 1 of NRS 88A.340.

      2.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a business trust to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the ledger, duplicate ledger or statement required to be maintained pursuant to subsection 1 of NRS 88A.340; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      3.  If a business trust fails to comply with any requirement pursuant to subsection 2, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the certificate of trust.

      4.  The Secretary of State shall not reinstate or revive a certificate of trust that was revoked or suspended pursuant to subsection 3 unless:

      (a) The business trust complies with the requirements of subsection 2; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the business trust.

      5.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 34.  1.  A foreign business trust shall maintain at its registered office:

      (a) A current list of its beneficial owners; or

      (b) A statement indicating where such a list is maintained.

      2.  The foreign business trust shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a foreign business trust to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a foreign business trust fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the right of the foreign business trust to transact business in this State.

      5.  The Secretary of State shall not reinstate or revive the right of a foreign business trust to transact business in this State that was revoked or suspended pursuant to subsection 4 unless:

 


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ê2007 Statutes of Nevada, Page 1334 (Chapter 325, AB 25)ê

 

      (a) The foreign business trust complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the right of the foreign business trust to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 35.  NRS 88A.650 is hereby amended to read as follows:

      88A.650  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 33 of this act, the Secretary of State shall reinstate a business trust which has forfeited or which forfeits its right to transact business pursuant to the provisions of this chapter and shall restore to the business trust its right to carry on business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 88A.600; and

             (2) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 88A.600 and 88A.630 for each year or portion thereof during which its certificate of trust was revoked; and

             (2) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the business trust, he shall issue to the business trust a certificate of reinstatement if the business trust:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 88A.900.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid, and the revocation of the certificate of trust occurred only by reason of the failure to file the list or pay the fees and penalties.

      4.  If a certificate of business trust has been revoked pursuant to the provisions of this chapter and has remained revoked for a period of 5 consecutive years, the certificate must not be reinstated.

      Sec. 36.  NRS 88A.737 is hereby amended to read as follows:

      88A.737  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 34 of this act, the Secretary of State shall reinstate a foreign business trust which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the foreign business trust its right to transact business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by NRS 88A.732; and

             (2) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 88A.732 and 88A.735 for each year or portion thereof that its right to transact business was forfeited; and

             (2) A fee of $300 for reinstatement.

 


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ê2007 Statutes of Nevada, Page 1335 (Chapter 325, AB 25)ê

 

      2.  When the Secretary of State reinstates the foreign business trust, he shall issue to the foreign business trust a certificate of reinstatement if the foreign business trust:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to NRS 88A.900.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a foreign business trust to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right to transact business must not be reinstated.

      Sec. 37.  Chapter 89 of NRS is hereby amended by adding thereto the provisions set forth as sections 38 and 39 of this act.

      Sec. 38.  1.  A professional corporation shall maintain at its registered office or principal place of business in this State:

      (a) A current list of its owners of record; or

      (b) A statement indicating where such a list is maintained.

      2.  The professional corporation shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a professional corporation to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a professional corporation fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the corporate charter.

      5.  The Secretary of State shall not reinstate or revive a charter that was revoked or suspended pursuant to subsection 4 unless:

      (a) The professional corporation complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the corporate charter.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 39.  1.  A professional association shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each member; or

      (b) A statement indicating where such a list is maintained.

      2.  The professional association shall:

 


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ê2007 Statutes of Nevada, Page 1336 (Chapter 325, AB 25)ê

 

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a professional association to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a professional association fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the articles of association.

      5.  The Secretary of State shall not reinstate or revive articles of association that were revoked or suspended pursuant to subsection 4 unless:

      (a) The professional association complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the articles of association.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 40.  NRS 89.256 is hereby amended to read as follows:

      89.256  1.  Except as otherwise provided in subsections 3 and 4 [,] and section 39 of this act, the Secretary of State shall reinstate any professional association which has forfeited its right to transact business under the provisions of this chapter and restore the right to carry on business in this State and exercise its privileges and immunities if it:

      (a) Files with the Secretary of State:

             (1) The list and certification required by NRS 89.250; and

             (2) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in NRS 89.250 and 89.252 for each year or portion thereof during which the articles of association have been revoked; and

             (2) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the professional association, he shall issue to the professional association a certificate of reinstatement if the professional association:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to subsection 8 of NRS 78.785.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid, and the revocation of the articles of association occurred only by reason of the failure to pay the fees and penalties.

 


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ê2007 Statutes of Nevada, Page 1337 (Chapter 325, AB 25)ê

 

      4.  If the articles of association of a professional association have been revoked pursuant to the provisions of this chapter and have remained revoked for 10 consecutive years, the articles must not be reinstated.

      Sec. 41.  Chapter 90 of NRS is hereby amended by adding thereto a new section to read as follows:

      “Transfer agent” means any person who, for a fee, performs the service of registering the transfer of securities that do not trade on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, if the price quotations for the over-the-counter stock are quoted by the National Association of Securities Dealers Automated Quotations System (NASDAQ).

      Sec. 42.  NRS 90.211 is hereby amended to read as follows:

      90.211  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 90.215 to 90.305, inclusive, and section 41 of this act have the meanings ascribed to them in those sections.

      Sec. 43.  NRS 90.310 is hereby amended to read as follows:

      90.310  1.  It is unlawful for any person to transact business in this State as a broker-dealer or sales representative unless licensed or exempt from licensing under this chapter.

      2.  It is unlawful for any issuer or any broker-dealer licensed under this chapter to employ or contract with a person as a sales representative within this State unless the sales representative is licensed or exempt from licensing under this chapter.

      3.  It is unlawful for any person to transact business in this State as a transfer agent unless licensed or exempt from licensing under this chapter.

      4.  It is unlawful for a broker-dealer or an issuer engaged in offering securities in this State to employ or contract with, in connection with any of the broker-dealer’s or issuer’s activities in this State, any person who is suspended or barred from association with a broker-dealer or investment adviser by the Administrator. A broker-dealer or issuer does not violate this subsection unless he knows or in the exercise of reasonable care should know of the suspension or bar. Upon request from a broker-dealer or issuer, and for good cause shown, the Administrator by order may waive the prohibition of this subsection with respect to a particular person who has been suspended or barred.

      [4.] 5.  It is unlawful for any person licensed pursuant to this chapter to share, divide or apportion fees with a person who is effecting or attempting to effect purchases or sales of securities and is not licensed pursuant to the provisions of this chapter.

      Sec. 44.  NRS 90.350 is hereby amended to read as follows:

      90.350  1.  [An] Except as otherwise provided in subsection 3, an applicant for licensing as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent must file with the Administrator an application for licensing and a consent to service of process pursuant to NRS 90.770 and pay the fee required by NRS 90.360. The application for licensing must contain the social security number of the applicant and any other information the Administrator determines by regulation to be necessary and appropriate to facilitate the administration of this chapter.

      2.  The requirements of subsection 1 are satisfied by an applicant who has filed and maintains a completed and current registration with the Securities and Exchange Commission or a self-regulatory organization if the information contained in that registration is readily available to the Administrator through the Central Registration Depository or another depository for registrations that has been approved by the Administrator by regulation or order.

 


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ê2007 Statutes of Nevada, Page 1338 (Chapter 325, AB 25)ê

 

information contained in that registration is readily available to the Administrator through the Central Registration Depository or another depository for registrations that has been approved by the Administrator by regulation or order. [Such] Except as otherwise provided in subsection 3, such an applicant must also file a notice with the Administrator in the form and content determined by the Administrator by regulation and a consent to service of process pursuant to NRS 90.770 and the fee required by NRS 90.360. The Administrator, by order, may require the submission of additional information by an applicant.

      3.  An applicant for licensing as a transfer agent is not required to pay the fee required by NRS 90.360.

      4.  As used in this section, “Central Registration Depository” means the Central Registration Depository of the National Association of Securities Dealers, Inc., or its successor, and the North American Securities Administrators Association or its successor.

      Sec. 45.  NRS 90.350 is hereby amended to read as follows:

      90.350  1.  [An] Except as otherwise provided in subsection 3, an applicant for licensing as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent must file with the Administrator an application for licensing and a consent to service of process pursuant to NRS 90.770 and pay the fee required by NRS 90.360. The application for licensing must contain the information the Administrator determines by regulation to be necessary and appropriate to facilitate the administration of this chapter.

      2.  The requirements of subsection 1 are satisfied by an applicant who has filed and maintains a completed and current registration with the Securities and Exchange Commission or a self-regulatory organization if the information contained in that registration is readily available to the Administrator through the Central Registration Depository or another depository for registrations that has been approved by the Administrator by regulation or order. [Such] Except as otherwise provided in subsection 3, such an applicant must also file a notice with the Administrator in the form and content determined by the Administrator by regulation and a consent to service of process pursuant to NRS 90.770 and the fee required by NRS 90.360. The Administrator, by order, may require the submission of additional information by an applicant.

      3.  An applicant for licensing as a transfer agent is not required to pay the fee required by NRS 90.360.

      4.  As used in this section, “Central Registration Depository” means the Central Registration Depository of the National Association of Securities Dealers, Inc., or its successor, and the North American Securities Administrators Association or its successor.

      Sec. 46.  NRS 90.375 is hereby amended to read as follows:

      90.375  1.  An applicant for the issuance or renewal of a license as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent shall submit to the Administrator the statement prescribed by the Division of Welfare and Supportive Services of the Department of Health and Human Services pursuant to NRS 425.520. The statement must be completed and signed by the applicant.

      2.  The Administrator shall include the statement required pursuant to subsection 1 in:

 


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ê2007 Statutes of Nevada, Page 1339 (Chapter 325, AB 25)ê

 

      (a) The application or any other forms that must be submitted for the issuance or renewal of the license; or

      (b) A separate form prescribed by the Administrator.

      3.  A license as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent may not be issued or renewed by the Administrator if the applicant:

      (a) Fails to submit the statement required pursuant to subsection 1; or

      (b) Indicates on the statement submitted pursuant to subsection 1 that he is subject to a court order for the support of a child and is not in compliance with the order or a plan approved by the district attorney or other public agency enforcing the order for the repayment of the amount owed pursuant to the order.

      4.  If an applicant indicates on the statement submitted pursuant to subsection 1 that he is subject to a court order for the support of a child and is not in compliance with the order or a plan approved by the district attorney or other public agency enforcing the order for the repayment of the amount owed pursuant to the order, the Administrator shall advise the applicant to contact the district attorney or other public agency enforcing the order to determine the actions that the applicant may take to satisfy the arrearage.

      Sec. 47.  NRS 90.380 is hereby amended to read as follows:

      90.380  1.  Unless a proceeding under NRS 90.420 has been instituted, the license of any broker-dealer, sales representative, investment adviser or representative of an investment adviser becomes effective 30 days after an application for licensing has been filed and is complete, including any amendment, if all requirements imposed pursuant to NRS 90.370 and 90.375 have been satisfied. An application or amendment is complete when the applicant has furnished information responsive to each applicable item of the application. The Administrator may authorize an earlier effective date of licensing.

      2.  The license of a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent is effective until terminated by revocation, suspension, expiration or withdrawal.

      3.  The license of a sales representative is only effective with respect to transactions effected on behalf of the broker-dealer or issuer for whom the sales representative is licensed.

      4.  A person shall not at any one time act as a sales representative for more than one broker-dealer or for more than one issuer, unless the Administrator by regulation or order authorizes multiple licenses.

      5.  If a person licensed as a sales representative terminates association with a broker-dealer or issuer or ceases to be a sales representative, the sales representative and the broker-dealer or issuer on whose behalf the sales representative was acting shall promptly notify the Administrator.

      6.  The Administrator by regulation may authorize one or more special classifications of licenses as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent to be issued to applicants subject to limitations and conditions on the nature of the activities that may be conducted by persons so licensed.

      7.  The license of a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent expires if:

 


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ê2007 Statutes of Nevada, Page 1340 (Chapter 325, AB 25)ê

 

      (a) The statement required pursuant to NRS 90.375 is not submitted when it is due; or

      (b) [The] Any annual fee required by NRS 90.360 is not paid when it is due.

      8.  A license that has expired may be reinstated retroactively if the licensed person:

      (a) Submits the statement required pursuant to NRS 90.375; and

      (b) Pays [the] any fee required by NRS 90.360, plus a fee for reinstatement in the amount of $50,

Ê within 30 days after the date of expiration. If the license is not reinstated within that time, it shall be deemed to have lapsed as of the date of expiration, and the licensed person must thereafter submit a new application for licensing if he desires to be relicensed.

      Sec. 48.  NRS 90.380 is hereby amended to read as follows:

      90.380  1.  Unless a proceeding under NRS 90.420 has been instituted, the license of any broker-dealer, sales representative, investment adviser or representative of an investment adviser becomes effective 30 days after an application for licensing has been filed and is complete, including any amendment, if all requirements imposed pursuant to NRS 90.370 have been satisfied. An application or amendment is complete when the applicant has furnished information responsive to each applicable item of the application. The Administrator may authorize an earlier effective date of licensing.

      2.  The license of a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent is effective until terminated by revocation, suspension, expiration or withdrawal.

      3.  The license of a sales representative is only effective with respect to transactions effected on behalf of the broker-dealer or issuer for whom the sales representative is licensed.

      4.  A person shall not at any one time act as a sales representative for more than one broker-dealer or for more than one issuer, unless the Administrator by regulation or order authorizes multiple licenses.

      5.  If a person licensed as a sales representative terminates association with a broker-dealer or issuer or ceases to be a sales representative, the sales representative and the broker-dealer or issuer on whose behalf the sales representative was acting shall promptly notify the Administrator.

      6.  The Administrator by regulation may authorize one or more special classifications of licenses as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent to be issued to applicants subject to limitations and conditions on the nature of the activities that may be conducted by persons so licensed.

      7.  The license of a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent expires if [the] any annual fee required by NRS 90.360 is not paid when it is due.

      8.  A license that has expired may be reinstated retroactively if the licensed person pays [the] any fee required by NRS 90.360, plus a fee for reinstatement in the amount of $50, within 30 days after the date of expiration. If the license is not reinstated within that time, it shall be deemed to have lapsed as of the date of expiration, and the licensed person must thereafter submit a new application for licensing if he desires to be relicensed.

 


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ê2007 Statutes of Nevada, Page 1341 (Chapter 325, AB 25)ê

 

      Sec. 49.  NRS 90.410 is hereby amended to read as follows:

      90.410  1.  The Administrator, without previous notice, may examine in a manner reasonable under the circumstances the records, within or without this State, of a licensed broker-dealer, sales representative, investment adviser or representative of an investment adviser [,] or any person issuing securities who would otherwise be required to be licensed pursuant to NRS 90.310 upon authorization by the Attorney General or his designee, in order to determine compliance with this chapter. Broker-dealers, sales representatives, investment advisers and representatives of investment advisers shall make their records available to the Administrator in legible form.

      2.  [The] Except as otherwise provided in subsection 3, the Administrator may copy records or require a licensed person to copy records and provide the copies to the Administrator to the extent and in a manner reasonable under the circumstances.

      3.  The Administrator may inspect and copy records or require a transfer agent to copy records and provide the copies to the Administrator to the extent such records relate to information concerning principals, corporate officers or stockholders of any publicly traded company based in this State.

      4.  The Administrator by regulation may impose a reasonable fee for the expense of conducting an examination under this section.

      Sec. 50.  NRS 90.420 is hereby amended to read as follows:

      90.420  1.  The Administrator by order may deny, suspend or revoke any license, fine any licensed person, limit the activities governed by this chapter that an applicant or licensed person may perform in this State, bar an applicant or licensed person from association with a licensed broker-dealer or investment adviser or bar from employment with a licensed broker-dealer or investment adviser a person who is a partner, officer, director, sales representative, investment adviser or representative of an investment adviser, or a person occupying a similar status or performing a similar function for an applicant or licensed person, if the Administrator finds that the order is in the public interest and that the applicant or licensed person or, in the case of a broker-dealer or investment adviser, any partner, officer, director, sales representative, investment adviser, representative of an investment adviser, or person occupying a similar status or performing similar functions or any person directly or indirectly controlling the broker-dealer or investment adviser [:] , or any transfer agent or any person directly or indirectly controlling the transfer agent:

      (a) Has filed an application for licensing with the Administrator which, as of its effective date, or as of any date after filing in the case of an order denying effectiveness, was incomplete in a material respect or contained a statement that was, in light of the circumstances under which it was made, false or misleading with respect to a material fact;

      (b) Has violated or failed to comply with a provision of this chapter as now or formerly in effect or a regulation or order adopted or issued under this chapter;

      (c) Is the subject of an adjudication or determination after notice and opportunity for hearing, within the last 5 years by a securities agency or administrator of another state or a court of competent jurisdiction that the person has violated the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940, the Investment Company Act of 1940, the Commodity Exchange Act or the securities law of any other state, but only if the acts constituting the violation of that state’s law would constitute a violation of this chapter had the acts taken place in this State;

 


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ê2007 Statutes of Nevada, Page 1342 (Chapter 325, AB 25)ê

 

of 1940, the Commodity Exchange Act or the securities law of any other state, but only if the acts constituting the violation of that state’s law would constitute a violation of this chapter had the acts taken place in this State;

      (d) Within the last 10 years has been convicted of a felony or misdemeanor which the Administrator finds:

             (1) Involves the purchase or sale of a security, taking a false oath, making a false report, bribery, perjury, burglary, robbery or conspiracy to commit any of the foregoing offenses;

             (2) Arises out of the conduct of business as a broker-dealer, investment adviser, depository institution, insurance company or fiduciary; or

             (3) Involves the larceny, theft, robbery, extortion, forgery, counterfeiting, fraudulent concealment, embezzlement, fraudulent conversion or misappropriation of money or securities or conspiracy to commit any of the foregoing offenses;

      (e) Is or has been permanently or temporarily enjoined by any court of competent jurisdiction, unless the order has been vacated, from acting as an investment adviser, representative of an investment adviser, underwriter, broker-dealer or as an affiliated person or employee of an investment company, depository institution or insurance company or from engaging in or continuing any conduct or practice in connection with any of the foregoing activities or in connection with the purchase or sale of a security;

      (f) Is or has been the subject of an order of the Administrator, unless the order has been vacated, denying, suspending or revoking his license as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser [;] or transfer agent;

      (g) Is or has been the subject of any of the following orders which were issued within the last 5 years, unless the order has been vacated:

             (1) An order by the securities agency or administrator of another state, Canadian province or territory or by the Securities and Exchange Commission or a comparable regulatory agency of another country, entered after notice and opportunity for hearing, denying, suspending or revoking the person’s license as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser [;] or transfer agent;

             (2) A suspension or expulsion from membership in or association with a member of a self-regulatory organization;

             (3) An order of the United States Postal Service relating to fraud;

             (4) An order to cease and desist entered after notice and opportunity for hearing by the Administrator, the securities agency or administrator of another state, Canadian province or territory, the Securities and Exchange Commission or a comparable regulatory agency of another country, or the Commodity Futures Trading Commission; or

             (5) An order by the Commodity Futures Trading Commission denying, suspending or revoking registration under the Commodity Exchange Act;

      (h) Has engaged in unethical or dishonest practices in the securities business;

      (i) Is insolvent, either in the sense that liabilities exceed assets or in the sense that obligations cannot be met as they mature, but the Administrator may not enter an order against a broker-dealer or investment adviser under this paragraph without a finding of insolvency as to the broker-dealer or investment adviser;

 


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ê2007 Statutes of Nevada, Page 1343 (Chapter 325, AB 25)ê

 

      (j) Has failed to pay a tax as required pursuant to the provisions of chapter 363A of NRS;

      (k) Is determined by the Administrator in compliance with NRS 90.430 not to be qualified on the basis of lack of training, experience and knowledge of the securities business; or

      (l) Has failed reasonably to supervise a sales representative, employee or representative of an investment adviser.

      2.  The Administrator may not institute a proceeding on the basis of a fact or transaction known to the director when the license became effective unless the proceeding is instituted within 90 days after issuance of the license.

      3.  If the Administrator finds that an applicant or licensed person is no longer in existence or has ceased to do business as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent or is adjudicated mentally incompetent or subjected to the control of a committee, conservator or guardian or cannot be located after reasonable search, the Administrator may by order deny the application or revoke the license.

      Sec. 51.  NRS 90.435 is hereby amended to read as follows:

      90.435  1.  If the Administrator receives a copy of a court order issued pursuant to NRS 425.540 that provides for the suspension of all professional, occupational and recreational licenses, certificates and permits issued to a person who is the holder of a license as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser [,] or transfer agent, the Administrator shall deem the license issued to that person to be suspended at the end of the 30th day after the date on which the court order was issued unless the Administrator receives a letter issued to the holder of the license by the district attorney or other public agency pursuant to NRS 425.550 stating that the holder of the license has complied with the subpoena or warrant or has satisfied the arrearage pursuant to NRS 425.560.

      2.  The Administrator shall reinstate a license as a broker-dealer, sales representative, investment adviser , [or] representative of an investment adviser or transfer agent that has been suspended by a district court pursuant to NRS 425.540 if the Administrator receives a letter issued by the district attorney or other public agency pursuant to NRS 425.550 to the person whose license was suspended stating that the person whose license was suspended has complied with the subpoena or warrant or has satisfied the arrearage pursuant to NRS 425.560.

      Sec. 52.  NRS 92A.205 is hereby amended to read as follows:

      92A.205  1.  After a plan of conversion is approved as required by this chapter, if the resulting entity is a domestic entity, the constituent entity shall deliver to the Secretary of State for filing:

      (a) Articles of conversion setting forth:

             (1) The name and jurisdiction of organization of the constituent entity and the resulting entity; and

             (2) That a plan of conversion has been adopted by the constituent entity in compliance with the law of the jurisdiction governing the constituent entity.

      (b) The charter document of the domestic resulting entity required by the applicable provisions of chapter 78, 78A, [82,] 86, 88, 88A or 89 of NRS.

      (c) A certificate of acceptance of appointment of a resident agent for the resulting entity which is signed by the resident agent.

 


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ê2007 Statutes of Nevada, Page 1344 (Chapter 325, AB 25)ê

 

      2.  After a plan of conversion is approved as required by this chapter, if the resulting entity is a foreign entity, the constituent entity shall deliver to the Secretary of State for filing articles of conversion setting forth:

      (a) The name and jurisdiction of organization of the constituent entity and the resulting entity;

      (b) That a plan of conversion has been adopted by the constituent entity in compliance with the laws of this State; and

      (c) The address of the resulting entity where copies of process may be sent by the Secretary of State.

      3.  If the entire plan of conversion is not set forth in the articles of conversion, the filing party must include in the articles of conversion a statement that the complete signed plan of conversion is on file at the registered office or principal place of business of the resulting entity or, if the resulting entity is a domestic limited partnership, the office described in paragraph (a) of subsection 1 of NRS 88.330.

      4.  If the conversion takes effect on a later date specified in the articles of conversion pursuant to NRS 92A.240, the charter document to be filed with the Secretary of State pursuant to paragraph (b) of subsection 1 must state the name and the jurisdiction of the constituent entity and that the existence of the resulting entity does not begin until the later date.

      5.  Any records filed with the Secretary of State pursuant to this section must be accompanied by the fees required pursuant to this title for filing the charter document.

      Sec. 53.  (Deleted by amendment.)

      Sec. 54.  NRS 225.084 is hereby amended to read as follows:

      225.084  1.  A person shall not willfully file, promote the filing of, or cause to be filed, or attempt or conspire to file, promote the filing of, or cause to be filed, any record in the Office of the Secretary of State if the person has actual knowledge that the record:

      (a) Is forged or fraudulently altered;

      (b) Contains a false statement of material fact; or

      (c) Is being filed in bad faith or for the purpose of harassing or defrauding any person.

      2.  Any person who violates this section is liable in a civil action brought pursuant to this section for:

      (a) Actual damages caused by each separate violation of this section, or $10,000 for each separate violation of this section, whichever is greater;

      (b) All costs of bringing and maintaining the action, including investigative expenses and fees for expert witnesses;

      (c) Reasonable attorney’s fees; and

      (d) Any punitive damages that the facts may warrant.

      3.  A civil action may be brought pursuant to this section by:

      (a) Any person who is damaged by a violation of this section, including, without limitation, any person who is damaged as the result of an action taken in reliance on a record filed in violation of this section; or

      (b) The Attorney General, in the name of the State of Nevada, if the matter is referred to the Attorney General by the Secretary of State and if the Attorney General, after due inquiry, determines that a civil action should be brought pursuant to this section. Any money recovered by the Attorney General pursuant to this paragraph, after deducting all costs and expenses incurred by the Attorney General and the Secretary of State to investigate and act upon the violation, must be deposited in the State General Fund.

 


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ê2007 Statutes of Nevada, Page 1345 (Chapter 325, AB 25)ê

 

      4.  For the purposes of this section, each filing of a single record that constitutes a violation of this section shall be deemed to be a separate violation.

      5.  The rights, remedies and penalties provided pursuant to this section are cumulative and do not abrogate and are in addition to any other rights, remedies and penalties that may exist at law or in equity, including, without limitation, any criminal penalty that may be imposed pursuant to NRS 239.330.

      6.  The Secretary of State may adopt regulations prescribing procedures for correcting any record filed in violation of this section.

      7.  As used in this section, “record” means information that is:

      (a) Inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form; and

      (b) Filed or offered for filing by a person pursuant to any provision of title 7 of NRS or Article 9 of the Uniform Commercial Code.

      Sec. 55.  Assembly Bill No. 26 of this session is hereby amended by adding thereto a new section to be designated as sec. 6.5, following sec. 6, to read as follows:

      Sec. 6.5.  The amendatory provisions of this act do not apply to a:

      1.  Corporation that files its articles of incorporation with the Secretary of State;

      2.  Foreign corporation that files the records required pursuant to subsection 1 of NRS 80.010 or NRS 80.110 with the Secretary of State;

      3.  Nonprofit corporation that files its articles of incorporation with the Secretary of State;

      4.  Limited-liability company that files its articles of organization with the Secretary of State;

      5.  Registered limited-liability partnership that files its certificate of registration with the Secretary of State; or

      6.  Limited partnership that files its certificate of limited partnership with the Secretary of State,

Ê before the effective date of this act.

      Sec. 56.  Senate Bill No. 72 of this session is hereby amended by adding thereto a new section to be designated as sec. 40.5, immediately following sec. 40, to read as follows:

      Sec. 40.5.  1.  A limited partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each general partner; or

      (b) A statement indicating where such a list is maintained.

      2.  The limited partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a limited partnership to:

 


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ê2007 Statutes of Nevada, Page 1346 (Chapter 325, AB 25)ê

 

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a limited partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the right of the limited partnership to transact any business in this State.

      5.  The Secretary of State shall not reinstate or revive the right of a limited partnership to transact any business in this State that was revoked or suspended pursuant to subsection 4 unless:

      (a) The limited partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the right of the limited partnership to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 57.  Section 62 of Senate Bill No. 72 of this session is hereby amended to read as follows:

      Sec. 62.  1.  Except as otherwise provided in subsections 3 and 4 and section 40.5 of this act, the Secretary of State shall reinstate any limited partnership which has forfeited or which forfeits its right to transact business under the provisions of this chapter and restore to the limited partnership its right to carry on business in this State, and to exercise its privileges and immunities if it:

      (a) Files with the Secretary of State:

             (1) The list required pursuant to section 58 of this act;

             (2) The statement required by section 59 of this act, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in sections 58 and 60 of this act for each year or portion thereof during which the certificate has been revoked;

             (2) The fee set forth in section 59 of this act, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the limited partnership, he shall issue to the limited partnership a certificate of reinstatement if the limited partnership:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to section 63 of this act.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid, and the revocation occurred only by reason of failure to pay the fees and penalties.

 


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ê2007 Statutes of Nevada, Page 1347 (Chapter 325, AB 25)ê

 

      4.  If a limited partnership’s certificate has been revoked pursuant to the provisions of this chapter and has remained revoked for a period of 5 years, the certificate must not be reinstated.

      5.  If a limited partnership’s certificate is reinstated pursuant to this section, the reinstatement relates back to and takes effect on the effective date of the revocation, and the limited partnership’s status as a limited partnership continues as if the revocation had never occurred.

      Sec. 58.  Senate Bill No. 72 of this session is hereby amended by adding thereto a new section to be designated as sec. 115.5, immediately following sec. 115, to read as follows:

      Sec. 115.5.  1.  A foreign limited partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each general partner; or

      (b) A statement indicating where such a list is maintained.

      2.  The foreign limited partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a foreign limited partnership to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a foreign limited partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the certificate authorizing the foreign limited partnership to transact business in this State.

      5.  The Secretary of State shall not reinstate or revive a certificate authorizing a foreign limited partnership to transact business in this State that was revoked or suspended pursuant to subsection 4 unless:

      (a) The foreign limited partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the certificate authorizing the foreign limited partnership to transact business in this State.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 59.  Section 118 of Senate Bill No. 72 of this session is hereby amended to read as follows:

      Sec. 118.  1.  Except as otherwise provided in subsections 3 and 4 and section 115.5 of this act, the Secretary of State shall reinstate a foreign limited partnership which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the foreign limited partnership its right to transact business in this State, and to exercise its privileges and immunities, if it:

 


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ê2007 Statutes of Nevada, Page 1348 (Chapter 325, AB 25)ê

 

reinstate a foreign limited partnership which has forfeited or which forfeits its right to transact business under the provisions of this chapter and shall restore to the foreign limited partnership its right to transact business in this State, and to exercise its privileges and immunities, if it:

      (a) Files with the Secretary of State:

             (1) The list required by section 112 of this act;

             (2) The statement required by section 113 of this act, if applicable; and

             (3) A certificate of acceptance of appointment signed by its resident agent; and

      (b) Pays to the Secretary of State:

             (1) The filing fee and penalty set forth in sections 112 and 116 of this act for each year or portion thereof that its right to transact business was forfeited;

             (2) The fee set forth in section 113 of this act, if applicable; and

             (3) A fee of $300 for reinstatement.

      2.  When the Secretary of State reinstates the foreign limited partnership, he shall issue to the foreign limited partnership a certificate of reinstatement if the foreign limited partnership:

      (a) Requests a certificate of reinstatement; and

      (b) Pays the required fees pursuant to section 63 of this act.

      3.  The Secretary of State shall not order a reinstatement unless all delinquent fees and penalties have been paid and the revocation of the right to transact business occurred only by reason of failure to pay the fees and penalties.

      4.  If the right of a foreign limited partnership to transact business in this State has been forfeited pursuant to the provisions of this chapter and has remained forfeited for a period of 5 consecutive years, the right is not subject to reinstatement.

      5.  If the right of a foreign limited partnership to transact business in this State is reinstated pursuant to this section, the reinstatement relates back to and takes effect on the effective date of the revocation, and the foreign limited partnership’s status as a foreign limited partnership continues as if the revocation had never occurred.

      Sec. 60.  Senate Bill No. 72 of this session is hereby amended by adding thereto a new section to be designated as sec. 126.5, immediately following sec. 126, to read as follows:

      Sec. 126.5.  1.  A registered limited-liability limited partnership shall maintain at its registered office or principal place of business in this State:

      (a) A current list of each general partner; or

      (b) A statement indicating where such a list is maintained.

      2.  The registered limited-liability limited partnership shall:

      (a) Provide the Secretary of State with the name and contact information of the custodian of the list described in subsection 1. The information required pursuant to this paragraph shall be kept confidential by the Secretary of State.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1349 (Chapter 325, AB 25)ê

 

      (b) Provide written notice to the Secretary of State within 10 days after any change in the information contained in the list described in subsection 1.

      3.  Upon the request of any law enforcement agency in the course of a criminal investigation, the Secretary of State may require a registered limited-liability limited partnership to:

      (a) Submit to the Secretary of State, within 3 business days, a copy of the list required to be maintained pursuant to subsection 1; or

      (b) Answer any interrogatory submitted by the Secretary of State that will assist in the criminal investigation.

      4.  If a registered limited-liability limited partnership fails to comply with any requirement pursuant to subsection 3, the Secretary of State may take any action necessary, including, without limitation, the suspension or revocation of the certificate of registration.

      5.  The Secretary of State shall not reinstate or revive a certificate of registration that was revoked or suspended pursuant to subsection 4 unless:

      (a) The registered limited-liability limited partnership complies with the requirements of subsection 3; or

      (b) The law enforcement agency conducting the investigation advises the Secretary of State to reinstate or revive the certificate of registration.

      6.  The Secretary of State may adopt regulations to administer the provisions of this section.

      Sec. 61.  1.  This section and sections 55 to 60, inclusive, of this act become effective upon passage and approval.

      2.  Sections 1 to 44, inclusive, 46, 47 and 49 to 54, inclusive, of this act become effective on October 1, 2007.

      3.  Sections 44, 46, 47 and 51 of this act expire by limitation on the date on which the provisions of 42 U.S.C. § 666 requiring each state to establish procedures under which the state has authority to withhold or suspend, or to restrict the use of professional, occupational and recreational licenses of persons who:

      (a) Have failed to comply with a subpoena or warrant relating to a proceeding to determine the paternity of a child or to establish or enforce an obligation for the support of a child; or

      (b) Are in arrears in the payment for the support of one or more children,

Ê are repealed by the Congress of the United States.

      4.  Sections 45 and 48 of this act become effective on the date on which the provisions of 42 U.S.C. § 666 requiring each state to establish procedures under which the state has authority to withhold or suspend, or to restrict the use of professional, occupational and recreational licenses of persons who:

      (a) Have failed to comply with a subpoena or warrant relating to a proceeding to determine the paternity of a child or to establish or enforce an obligation for the support of a child; or

      (b) Are in arrears in the payment for the support of one or more children,

Ê are repealed by the Congress of the United States.

________

 


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ê2007 Statutes of Nevada, Page 1350ê

 

CHAPTER 326, AB 526

Assembly Bill No. 526–Committee on Commerce and Labor

 

CHAPTER 326

 

AN ACT relating to information technology; revising provisions governing the regulation of community antenna television, cable television and other video service; establishing a new regulatory structure for video service providers; requiring the Secretary of State to perform certain duties under the new regulatory structure; limiting the regulatory powers of local governments regarding video service providers; providing fees; requiring providers of Internet service to offer, under certain circumstances, products or services which enable subscribers to regulate and monitor a child’s use of the Internet; providing remedies and penalties; and providing other matters properly relating thereto.

 

[Approved: June 4, 2007]

 

Legislative Counsel’s Digest:

      This bill enacts various provisions relating to community antenna television, cable television, video service, Internet service and other information technology.

      Under existing law, a local government has the authority to grant local franchises for the operation of a community antenna or cable television system within its jurisdiction. Because each local government has independent authority to grant its own franchises, a cable operator that wants to operate in multiple jurisdictions must negotiate a separate local franchise with each local government. (Chapter 711 of NRS)

      To promote competition in the cable industry, the federal Cable Act prohibits a local government from granting an exclusive franchise or unreasonably refusing to grant competitive franchises. The federal Cable Act also prohibits a local government from imposing a franchise fee that exceeds 5 percent of a cable operator’s gross revenue. (47 U.S.C. §§ 541, 542)

      This bill repeals the existing statutory scheme of regulating video service through local franchises and replaces it with a statutory scheme that is intended to promote more competition in the market for such service. This bill applies to community antenna television companies, cable operators and other video service providers. However, this bill allows an existing franchise holder to continue operating under its local franchise until that franchise expires, and this bill also allows a local government in a county whose population is less than 100,000 (currently counties other than Clark and Washoe Counties) to renew or extend the term of a local franchise.

      Under this bill, a video service provider must obtain a certificate of authority from the Secretary of State, which acts as a state-issued franchise to provide video service within the service areas designated in the certificate. This bill establishes various standards and practices for video service providers, including requirements for providing local governments with community access channels for public, educational and governmental programming.

      This bill preempts most local regulation of video service providers. However, this bill allows a local government to manage the activities of video service providers within any public right-of-way or highway, including inspecting any construction or repair work. This bill also allows a local government to impose a franchise fee that does not exceed 5 percent of a video service provider’s gross revenue.

 


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ê2007 Statutes of Nevada, Page 1351 (Chapter 326, AB 526)ê

 

      Finally, this bill requires a provider of Internet service, under certain circumstances, to make available to subscribers in this State products or services which enable the subscribers to block, restrict and monitor a child’s Internet activities. This bill authorizes the provider to charge a fee to those subscribers who elect to use the products or services. A provider of Internet service that fails to comply with the requirements commits a deceptive trade practice and is subject to the procedures for administrative enforcement and the remedies and penalties under the Deceptive Trade Practice Act. (NRS 598.0903-598.0999)

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 704.030 is hereby amended to read as follows:

      704.030  “Public utility” or “utility” does not include:

      1.  Persons engaged in the production and sale of natural gas, other than sales to the public, or engaged in the transmission of natural gas other than as a common carrier transmission or distribution line or system.

      2.  Persons engaged in the business of furnishing, for compensation, water or services for the disposal of sewage, or both, to persons within this State if:

      (a) They serve 25 persons or less; and

      (b) Their gross sales for water or services for the disposal of sewage, or both, amounted to $5,000 or less during the immediately preceding 12 months.

      3.  Persons not otherwise engaged in the business of furnishing, producing or selling water or services for the disposal of sewage, or both, but who sell or furnish water or services for the disposal of sewage, or both, as an accommodation in an area where water or services for the disposal of sewage, or both, are not available from a public utility, cooperative corporations and associations or political subdivisions engaged in the business of furnishing water or services for the disposal of sewage, or both, for compensation, to persons within the political subdivision.

      4.  Persons who are engaged in the production and sale of energy, including electricity, to public utilities, cities, counties or other entities which are reselling the energy to the public.

      5.  Persons who are subject to the provisions of NRS 590.465 to 590.645, inclusive.

      6.  Persons who are engaged in the sale or use of special fuel as defined in NRS 366.060.

      7.  Persons who provide water from water storage, transmission and treatment facilities if those facilities are for the storage, transmission or treatment of water from mining operations.

      8.  Persons who are video service providers, as defined in section 27 of this act, except for those operations of the video service provider which consist of providing a telecommunication service to the public, in which case the video service provider is a public utility only with regard to those operations of the video service provider which consist of providing a telecommunication service to the public.

      Sec. 2.  Chapter 711 of NRS is hereby amended by adding thereto the provisions set forth as sections 3 to 60, inclusive, of this act.

      Sec. 3.  “Agreement” means any agreement or contract of any kind.

      Sec. 4.  “Cable operator” has the meaning ascribed to it in 47 U.S.C. § 522, as that section existed on January 1, 2007.

 


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ê2007 Statutes of Nevada, Page 1352 (Chapter 326, AB 526)ê

 

      Sec. 5.  “Cable service” has the meaning ascribed to it in 47 U.S.C. § 522, as that section existed on January 1, 2007.

      Sec. 6.  “Cable system” has the meaning ascribed to it in 47 U.S.C. § 522, as that section existed on January 1, 2007.

      Sec. 7.  “Certificate of authority” or “certificate” means a certificate issued by the Secretary of State pursuant to this chapter which grants the holder of the certificate a state-issued franchise to provide video service and construct and operate a video service network within the service areas designated in the certificate.

      Sec. 8.  “Commercial mobile service provider” means a person who provides commercial mobile service, as defined in 47 U.S.C. § 332(d), as that section existed on January 1, 2007.

      Sec. 9.  “Franchise” has the meaning ascribed to it in 47 U.S.C. § 522, as that section existed on January 1, 2007.

      Sec. 10.  “Franchise fee” means a franchise fee imposed by a local government on a video service provider for the privilege of providing video service.

      Sec. 11.  1.  “Gross revenue” means:

      (a) Any revenue a video service provider receives from its subscribers for providing video service to those subscribers, as determined in accordance with generally accepted accounting principles, except for revenue excluded pursuant to subsection 3; and

      (b) Any other consideration a video service provider receives from its subscribers for providing video service when it is received in a transaction that would evade imposition of a franchise fee if such consideration is not included in revenue, except for revenue excluded pursuant to subsection 3.

      2.  The term includes, without limitation:

      (a) Recurring monthly charges;

      (b) Event-based charges, including, without limitation, charges for pay per view and video on demand;

      (c) Charges for the rental of set-top boxes and other equipment;

      (d) Service charges, including, without limitation, charges for activation, installation, repair and maintenance;

      (e) Administrative charges, including, without limitation, charges for service orders and service termination; and

      (f) The amount of any revenue received by a video service provider for providing video service when such service is a component of a bundle of services or products sold for a single price, but only to the extent the revenue received by the video service provider for the bundle of services or products is proportionately allocated among each of the components.

      3.  The term does not include:

      (a) Revenue not actually received, regardless of when it is billed.

      (b) Refunds, rebates or discounts made to subscribers.

      (c) Revenue from providing service other than video service, including, without limitation, revenue from providing:

             (1) Telecommunication service; or

             (2) Information service that is not video service.

      (d) Any fee imposed on the video service provider that is passed through to and paid by subscribers, including, without limitation, a franchise fee.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1353 (Chapter 326, AB 526)ê

 

      (e) Revenue from the sale of video service to any person who purchases the video service for resale and who, upon resale, is required to pay a franchise fee pursuant to this chapter or the terms of a local franchise.

      (f) Any tax of general applicability.

      (g) The fair market value of free or reduced-cost video service provided without set-off or exchange to any person who is entitled or permitted to receive such service pursuant to this chapter or federal law.

      (h) Late payment fees collected from subscribers.

      Sec. 12.  “Holder of a certificate” or “holder” means a video service provider that has been issued a certificate of authority pursuant to this chapter.

      Sec. 13.  “Incumbent cable operator” means any cable operator, community antenna television company or other video service provider that, on the effective date of this act, is providing video service in this State pursuant to a local franchise.

      Sec. 14.  “Information service” has the meaning ascribed to it in 47 U.S.C. § 153(20), as that section existed on January 1, 2007.

      Sec. 15.  “Interactive computer service” has the meaning ascribed to it in 47 U.S.C. § 230(f)(2), as that section existed on January 1, 2007.

      Sec. 16.  “Jurisdiction of a local government” means:

      1.  In the case of a city, the corporate limits of the city.

      2.  In the case of a county, the unincorporated area of the county.

      Sec. 17.  1.  “Local franchise” means any franchise, agreement, permit, license or similar authorization, regardless of its name, which:

      (a) Permits a person to construct or operate a cable system, community antenna television system or video service network within the jurisdiction of a local government;

      (b) Was issued, granted, approved or renewed by the governing body of the local government before the effective date of this act pursuant to the authority of any federal, state or local law in effect at the time of the issuance, grant, approval or renewal; and

      (c) On the effective date of this act, is legally effective and unexpired.

      2.  The term includes, without limitation, an unexpired local franchise that a local government in a county whose population is less than 100,000 renews or extends the term of pursuant to sections 32 and 32.5 of this act.

      Sec. 18.  “Local law” means any charter, code, ordinance, regulation or other law of a local government.

      Sec. 19.  “Multichannel video programming distributor” has the meaning ascribed to it in 47 U.S.C. § 522, as that section existed on January 1, 2007.

      Sec. 20.  “Service area” means the geographical territory in this State within which a video service provider is authorized to provide video service pursuant to a certificate of authority or local franchise.

      Sec. 21.  1.  “Subscriber” means any person in this State who purchases video service.

      2.  The term does not include any person who purchases video service for resale and who, upon resale, is required to pay a franchise fee pursuant to this chapter or the terms of a local franchise.

      Sec. 22.  “Telecommunication” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information sent and received, regardless of the facilities, equipment or technology used.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1354 (Chapter 326, AB 526)ê

 

      Sec. 23.  “Telecommunication provider” means any person required to obtain from the Public Utilities Commission of Nevada a certificate of public convenience and necessity pursuant to NRS 704.330 to provide telecommunication service.

      Sec. 24.  “Telecommunication service” means the offering of telecommunication for a fee directly to the public, or such classes of users as to be effectively available directly to the public, regardless of the equipment, facilities or technology used.

      Sec. 25.  1.  “Video service” means the provision of multichannel video programming generally considered comparable to video programming delivered by a television broadcast station, cable service or other digital television service, whether provided as part of a tier, on-demand or on a per-channel basis, without regard to the technology used to deliver the video service, including, without limitation, Internet protocol technology or any successor technology.

      2.  The term includes, without limitation:

      (a) Cable service; and

      (b) Video service delivered by a community antenna television system.

      3.  The term does not include:

      (a) Any video content provided solely as part of, and through, a service which enables users to access content, information, electronic mail or other services that are offered via the public Internet.

      (b) Direct broadcast satellite service.

      (c) Any wireless multichannel video programming provided by a commercial mobile service provider.

      Sec. 26.  1.  “Video service network” means a wireline facility, or any component thereof, which is:

      (a) Located in this State;

      (b) Constructed in whole or in part in, on, under or over any public right-of-way or highway; and

      (c) Used to provide video service.

      2.  The term includes, without limitation:

      (a) A cable system; and

      (b) A community antenna television system.

      Sec. 27.  1.  “Video service provider” or “provider” means any person that provides or offers to provide video service over a video service network to subscribers in this State.

      2.  The term includes, without limitation:

      (a) An incumbent cable operator or other cable operator;

      (b) A community antenna television company; and

      (c) A multichannel video programming distributor.

      Sec. 28.  This chapter occupies the entire field of franchising and regulation of video service and, except as otherwise provided in sections 45 and 46 of this act, preempts any local law or agreement with a local government that:

      1.  Requires a person to obtain or hold from a local government any franchise, permit, license or similar authorization, regardless of its name, to provide video service or to construct or operate a video service network, unless the person is an incumbent cable operator which holds an unexpired local franchise and which has elected pursuant to sections 32 and 32.5 of this act to continue to operate within its service area pursuant to the local franchise.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1355 (Chapter 326, AB 526)ê

 

      2.  Regulates the provision of video service or the construction or operation of a video service network if such regulation conflicts or is otherwise inconsistent with the provisions of this chapter or the purposes and objectives of this chapter.

      3.  Requires a video service provider to pay any fee to a local government if the payment of such a fee conflicts or is otherwise inconsistent with the provisions of this chapter or the purposes and objectives of this chapter.

      Sec. 29.  1.  For the purpose of bringing about fair and reasonable competition for video service, the Secretary of State has the exclusive authority to issue a certificate of authority to a person to provide video service and construct and operate a video service network in any service area in this State.

      2.  The Secretary of State:

      (a) Shall carry out the provisions of this chapter; and

      (b) May adopt regulations necessary for the issuance, modification and termination of a certificate of authority, including, without limitation, prescribing any forms related to the application process.

      3.  On or after the effective date of this act, a local government does not have the authority to:

      (a) Issue, grant, approve or renew any franchise, agreement, permit, license or similar authorization, regardless of its name, for the privilege of:

             (1) Providing video service within the jurisdiction of the local government; or

             (2) Except as otherwise provided in sections 45 and 46 of this act, constructing or operating a video service network within the jurisdiction of the local government,

Ê except that a local government in a county whose population is less than 100,000 may renew or extend the term of an unexpired local franchise of an incumbent cable operator which has elected pursuant to sections 32 and 32.5 of this act to continue to operate within its service area pursuant to the local franchise;

      (b) Impose any build-out requirements, investment requirements or other requirements relating to infrastructure, facilities or deployment of equipment for the privilege of providing video service or constructing or operating a video service network within the jurisdiction of the local government; or

      (c) Except as otherwise provided in sections 45 and 46 of this act, require the payment of any application, document, franchise, service or other fee, tax, charge or assessment for the privilege of providing video service or constructing or operating a video service network within the jurisdiction of the local government.

      Sec. 29.5.  1.  In carrying out the provisions of this chapter, the Secretary of State shall charge and collect the fees set forth in this section.

      2.  Except as otherwise provided in subsection 3, the filing fee for accepting any application or notice pursuant to the provisions of this chapter is $1,000.

      3.  The filing fee for accepting an original application for a certificate of authority pursuant to sections 33 and 34 of this act:

      (a) Is $250 for a service area located entirely within the territorial boundaries of a county whose population is less than 50,000.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1356 (Chapter 326, AB 526)ê

 

      (b) Is $500 for a service area located in whole or in part within the territorial boundaries of a county whose population is 50,000 or more but less than 100,000, unless the provisions of paragraph (c) apply.

      (c) Is $1,000 for a service area located in whole or in part within a county whose population is 100,000 or more.

      4.  A person may elect to apply for a certificate of authority that permits, but does not require, the person to provide video service within one or more service areas located anywhere in this State as designated in the application and affidavit filed by the person pursuant to section 33 of this act. If a person applies for such a certificate of authority, the certification fee for issuing the certificate of authority to the person pursuant to sections 33 and 34 of this act is $25,000. The Secretary of State may charge and collect the certification fee pursuant to this subsection only once from each such person.

      5.  If a person elects not to apply for a certificate of authority in accordance with subsection 4, the certification fee for issuing a certificate of authority to the person pursuant to sections 33 and 34 of this act or for issuing an amended certificate of authority to the person pursuant to section 35 of this act:

      (a) Is $250 for a service area located entirely within the territorial boundaries of a town, township or city whose population is less than 1,000, regardless of the population of the county.

      (b) Is $2,500 for a service area located entirely within the territorial boundaries of a town, township or city whose population is 1,000 or more but less than 50,000, regardless of the population of the county.

      (c) Is $2,500 for a service area located entirely within the territorial boundaries of a county whose population is less than 50,000, unless the provisions of paragraph (a) or (b) apply.

      (d) Is $15,000 for a service area located in whole or in part within the territorial boundaries of a county whose population is 50,000 or more but less than 100,000, unless the provisions of paragraph (a), (b) or (e) apply.

      (e) Is $25,000 for a service area located in whole or in part within the territorial boundaries of a county whose population is 100,000 or more, unless the provisions of paragraph (a) or (b) apply.

      6.  The Secretary of State shall charge and collect the fees set forth in this section based on:

      (a) The information provided in the application and affidavit filed by the person pursuant to paragraph (a) of subsection 2 of section 33 of this act; and

      (b) The estimated population of each town, township, city and county in this State as set forth in the most recent annual report issued by the Department of Taxation pursuant to NRS 360.283.

      7.  The fees imposed by this section may not be passed through to and collected from subscribers of video service.

      Sec. 30.  The provisions of this chapter must not be interpreted to:

      1.  Authorize the Secretary of State to exercise oversight of video service providers except as provided in this chapter.

      2.  Prevent a telecommunication provider from exercising any rights or authority that the provider has as a public utility under federal or state law.

 


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ê2007 Statutes of Nevada, Page 1357 (Chapter 326, AB 526)ê

 

      Sec. 31.  Except as otherwise provided in this chapter, a person shall not act as a video service provider or construct or operate a video service network in any service area unless the person has obtained a certificate of authority for that service area.

      Sec. 32.  1.  If, on the effective date of this act, an incumbent cable operator is providing video service within a service area pursuant to a local franchise, the incumbent cable operator may elect to:

      (a) Continue to operate within that service area pursuant to the local franchise in accordance with section 32.5 of this act; or

      (b) Terminate the local franchise within that service area by applying for and obtaining a certificate of authority pursuant to this section.

      2.  To elect to terminate a local franchise within a service area, an incumbent cable operator must, not later than 6 months after the effective date of this act, apply for a certificate of authority for that service area in the same manner as any other video service provider. If the incumbent cable operator makes such an election and obtains a certificate of authority for that service area:

      (a) The local franchise for that service area is deemed to be terminated by operation of law on the date on which the Secretary of State issues the certificate of authority;

      (b) Not later than 3 business days after the date on which the Secretary of State issues the certificate of authority, the incumbent cable operator shall file with the clerk of the local government which granted the franchise a written declaration that the incumbent cable operator has obtained a certificate of authority and that the local franchise for that service area has been terminated by operation of law; and

      (c) The incumbent cable operator shall operate within that service area thereafter subject only to the same requirements that apply to any other holder of a certificate.

      Sec. 32.5.  1.  Except as otherwise provided in subsection 2, if an incumbent cable operator elects pursuant to section 32 of this act to continue to operate within a service area pursuant to a local franchise:

      (a) The incumbent cable operator must comply with the local franchise and all applicable provisions of this chapter while the local franchise is in effect for that service area;

      (b) The local franchise is not effective for that service area on or after the date on which the local franchise expires; and

      (c) The local government may not renew or extend the term of the local franchise for that service area.

Ê To operate within that service area on or after the date on which the local franchise expires, the incumbent cable operator must apply for and obtain a certificate of authority in the same manner as any other video service provider. If the incumbent cable operator is issued a certificate of authority for that service area while operating pursuant to the local franchise, the certificate does not become effective until the date on which the local franchise expires.

      2.  If an incumbent cable operator elects pursuant to section 32 of this act to continue to operate within a service area pursuant to a local franchise and the service area is located entirely within the territorial boundaries of a county whose population is less than 100,000:

 


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ê2007 Statutes of Nevada, Page 1358 (Chapter 326, AB 526)ê

 

      (a) The incumbent cable operator must comply with the local franchise and all applicable provisions of this chapter while the local franchise is in effect for that service area; and

      (b) The local government may renew or extend the term of the local franchise for that service area, provided that the terms and conditions of the renewal or extension do not conflict with or are not otherwise inconsistent with the provisions of this chapter or the purposes and objectives of this chapter.

Ê To operate within that service area on or after the date on which the local franchise expires without renewal or extension, the incumbent cable operator must apply for and obtain a certificate of authority in the same manner as any other video service provider. If the incumbent cable operator is issued a certificate of authority for that service area while operating pursuant to the local franchise, the certificate does not become effective until the date on which the local franchise expires without renewal or extension.

      Sec. 33.  1.  To obtain a certificate of authority, a person must:

      (a) File with the Secretary of State an application and affidavit which are signed by one of the principal executive officers or general partners of the applicant and which comply with the provisions of this section; and

      (b) Pay any fee required by section 29.5 of this act.

      2.  The application and affidavit must be in the form required by the Secretary of State and must contain only the following:

      (a) A description of each service area designated by the applicant in which the applicant intends to provide video service and a map of each such service area that shows the territorial boundaries of each local government located, in whole or in part, within the service area.

      (b) The location of the principal place of business of the applicant and the names of the principal executive officers or general partners of the applicant.

      (c) Certifications that the applicant:

             (1) Agrees to comply with all applicable federal and state laws and regulations;

             (2) Agrees to comply with all generally applicable, nondiscriminatory local laws regarding the use and occupation of any public right-of-way or highway in the construction, operation, maintenance and repair of a video service network, including, without limitation, any local laws enacted pursuant to the police powers of the local government in which the video service network is located; and

             (3) Has filed or will timely file with the Federal Communications Commission all forms required by that agency before offering video service.

      3.  If the Secretary of State determines that the application and affidavit are incomplete or otherwise deficient, the Secretary of State shall provide written notice to the applicant not later than 15 days after the date on which the application and affidavit are filed. The written notice must:

      (a) Explain the incompleteness or deficiency in detail; and

      (b) Identify with specificity the information or other items that are necessary to complete the application and affidavit properly.

 


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ê2007 Statutes of Nevada, Page 1359 (Chapter 326, AB 526)ê

 

      4.  The applicant shall provide a copy of the application and affidavit to the governing body of each local government located, in whole or in part, within each service area designated in the application. The applicant shall provide such a copy:

      (a) Not later than 3 business days after the date on which the application and affidavit are first filed with the Secretary of State; and

      (b) If a revised application and affidavit are filed, not later than 3 business days after the date on which the revised application and affidavit are filed with the Secretary of State.

      5.  The copy of the application and affidavit provided by the applicant to a governing body is for informational purposes only, and the governing body may not:

      (a) Vote on or take other official action regarding the application and affidavit; or

      (b) Require the applicant to obtain the approval of the governing body regarding the application and affidavit.

      Sec. 34.  1.  Not later than 20 days after the date on which an applicant files a completed application and affidavit pursuant to section 33 of this act and pays any fee required by section 29.5 of this act, the Secretary of State shall issue a certificate of authority to the applicant.

      2.  The certificate of authority issued by the Secretary of State is a state-issued franchise granting the holder of the certificate with the authority to:

      (a) Provide video service in each service area designated in the application and affidavit filed with the Secretary of State; and

      (b) Construct and operate a video service network in compliance with the provisions of this chapter and all local laws that are not in conflict or otherwise inconsistent with the provisions of this chapter or the purposes and objectives of this chapter.

      3.  The Secretary of State may not condition or limit a certificate of authority by imposing on the holder of the certificate any obligations or requirements that are not authorized by the provisions of this chapter, including, without limitation:

      (a) Any build-out requirements, investment requirements or other requirements relating to infrastructure, facilities or deployment of equipment; or

      (b) Any requirements to pay any application, document, franchise, service or other fee, tax, charge or assessment that is not authorized by the provisions of this chapter.

      Sec. 35.  1.  If the holder of a certificate wants to add one or more new service areas to the certificate, the holder must:

      (a) File with the Secretary of State an application for an amendment to the certificate to add the new service areas; and

      (b) Pay any fee required by section 29.5 of this act.

      2.  The application for an amendment to the certificate must contain a description of each new service area designated by the holder and a map of each new service area that shows the territorial boundaries of each local government located, in whole or in part, within the new service area.

      3.  The application for an amendment to the certificate is subject to the same procedures, requirements and time periods as an application for the issuance of a certificate pursuant to sections 33 and 34 of this act.

 


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ê2007 Statutes of Nevada, Page 1360 (Chapter 326, AB 526)ê

 

      Sec. 36.  1.  If the holder of a certificate wants to modify the boundaries of an existing service area authorized under the certificate, the holder must file with the Secretary of State written notice of the modification and pay any fee required by section 29.5 of this act.

      2.  The holder may make the modification on the date on which it files the written notice with the Secretary of State.

      Sec. 37.  1.  If the holder of a certificate wants to terminate service to an existing service area authorized under the certificate, the holder must file with the Secretary of State written notice of the termination and pay any fee required by section 29.5 of this act.

      2.  The holder may make the termination on the date on which it files the written notice with the Secretary of State.

      Sec. 38.  1.  Except as otherwise provided in this section, a certificate of authority is fully transferable to any successor-in-interest of the holder of the certificate whether the transfer to the successor-in-interest arises through merger, sale, assignment, restructuring, change of control or any other type of transaction.

      2.  The holder shall file with the Secretary of State written notice of the transfer of the certificate to the successor-in-interest and pay any fee required by section 29.5 of this act not later than 10 days after the date on which the transfer is completed.

      3.  Before the holder may transfer its certificate to the successor-in-interest, the successor-in-interest must agree that any collective bargaining agreement entered into by the holder shall continue to be honored, paid or performed by the successor-in-interest to the same extent as would be required if the holder continued to operate under its certificate unless such continued application of the collective bargaining agreement to the successor-in-interest is prohibited or limited by the terms of the agreement or by federal or state law. Any transfer of a certificate of authority that violates the provisions of this subsection is void and unenforceable and is not valid for any purpose.

      Sec. 39.  1.  Not later than 24 months after the date on which the Secretary of State issues a certificate of authority pursuant to sections 33 and 34 of this act or an amended certificate of authority pursuant to section 35 of this act, the holder of the certificate must have the capability to offer and provide video service to at least one subscriber who resides within the territorial boundaries of each service area authorized by the certificate or the amended certificate.

      2.  If a holder fails to comply with the provisions of subsection 1, the holder’s certificate of authority shall be deemed to be revoked by operation of law without the need for any notice, hearing or action by the Secretary of State.

      Sec. 40.  A holder of a certificate shall provide video service in accordance with the certifications made by the holder in each application and affidavit that the holder files with the Secretary of State pursuant to section 33 or 35 of this act.

      Sec. 40.5.  1.  If a video service provider that is not an incumbent cable operator within the jurisdiction of a local government intends to construct facilities within the jurisdiction of the local government pursuant to a certificate of authority, the video service provider shall, until it has constructed all the facilities intended for the jurisdiction of the local government, prepare and submit to the local government a semiannual report which describes the number of service locations within the jurisdiction of the local government that are capable of receiving video service from the video service provider.

 


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ê2007 Statutes of Nevada, Page 1361 (Chapter 326, AB 526)ê

 

report which describes the number of service locations within the jurisdiction of the local government that are capable of receiving video service from the video service provider.

      2.  The video service provider shall submit the report to the local government not later than 10 business days after the last day of the second and fourth calendar quarters of each year.

      3.  The information contained in a report that is submitted to a local government pursuant to this section:

      (a) Is confidential proprietary information of the video service provider;

      (b) Is not a public record; and

      (c) Must not be disclosed to any person who is not an officer or employee of the local government unless the video service provider consents to the disclosure or the disclosure is made pursuant to subsection 4.

      4.  Upon request from the Director of the Legislative Counsel Bureau, a local government shall disclose the information contained in a report that is submitted to the local government pursuant to this section to the Director for confidential use by the Legislature and the Legislative Counsel Bureau. The information that is disclosed to the Director:

      (a) Is confidential proprietary information of the video service provider;

      (b) Is not a public record; and

      (c) Must not be disclosed to any person who is not an officer or employee of the Legislature or the Legislative Counsel Bureau unless the video service provider consents to the disclosure.

      Sec. 41.  1.  A video service provider shall activate and offer video service in a nondiscriminatory manner within each service area and shall not deny access to video service to any group of potential residential subscribers within a particular part of a service area because of the income profile of the persons who reside in that particular part of the service area.

      2.  In providing video service, a video service provider shall comply with:

      (a) The provisions of 47 U.S.C. § 551, as that section existed on January 1, 2007.

      (b) The provisions of the National Electrical Safety Code, as adopted and as may be amended by the Institute of Electrical and Electronics Engineers, Inc., with regard to the video service provider’s construction practices and installation of equipment.

      (c) Any technical standards governing the design, construction and operation of a video service network required by federal law.

      (d) The provisions of 47 C.F.R. Part 11, as adopted and as may be amended by the Federal Communications Commission, to the extent those provisions require a video service provider to participate in the Emergency Alert System.

      Sec. 42.  1.  A video service provider:

      (a) Shall comply with the provisions of 47 C.F.R. §§ 76.309, 76.1601 to 76.1604, inclusive, and 76.1618 to 76.1622, inclusive, as adopted and as may be amended by the Federal Communications Commission, with regard to the standards governing the quality of video service and customer service; and

      (b) May not be required to comply with more stringent or different customer service obligations than those set forth in paragraph (a).

 


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ê2007 Statutes of Nevada, Page 1362 (Chapter 326, AB 526)ê

 

      2.  To facilitate the resolution of complaints regarding video service made by subscribers:

      (a) A video service provider shall establish and maintain a customer service department and provide each subscriber with instructions for:

             (1) Contacting the customer service department if the subscriber has a complaint regarding video service; and

             (2) Contacting the local government if the video service provider does not resolve the complaint to the satisfaction of the subscriber.

Ê The video service provider shall provide such instructions to the subscriber in each bill and in any service-related notice or other direct correspondence which the video service provider sends to the subscriber and which is related to that subscriber’s video service. For the purposes of this paragraph, “service-related notice or other direct correspondence” does not include general advertising, marketing, promotional or public service materials that the video service provider sends to other subscribers or the public generally.

      (b) Each local government which is located in a county whose population is 25,000 or more and which collects a franchise fee pursuant to section 46 of this act shall establish a process to:

             (1) Make available to the public a list of video service providers authorized to provide video service within the jurisdiction of the local government;

             (2) Respond to inquiries from subscribers and disseminate information to those subscribers regarding the standards governing the quality of video service and customer service prescribed by subsection 1 and the procedures available to subscribers to resolve complaints with such video service providers;

             (3) Coordinate the resolution of subscriber complaints with the customer service departments of such video service providers;

             (4) Facilitate access by subscribers to procedures to seek corrective action or other redress from such video service providers for alleged violations of the customer service standards prescribed by subsection 1; and

             (5) Maintain a record of the number and general subject matter of subscriber complaints against each such video service provider. The record must contain a separate listing for each such video provider and must be made available for public inspection.

      3.  Before a local government may take the action permitted by subsection 4 against a video service provider regarding a complaint from a subscriber:

      (a) The subscriber must provide notice of the complaint to the video service provider by contacting the customer service department of the video service provider; and

      (b) The video service provider must be given a period of not less than 10 business days after the date on which it receives the notice from the subscriber to resolve the complaint to the satisfaction of the subscriber.

      4.  If a local government has reasonable cause to believe that a video service provider has committed persistent or repeated violations of the customer service obligations that apply to the video service provider pursuant to this section, the local government may file a written complaint with the Bureau of Consumer Protection in the Office of the Attorney General pursuant to section 60 of this act.

 


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ê2007 Statutes of Nevada, Page 1363 (Chapter 326, AB 526)ê

 

      Sec. 43.  1.  A video service provider may provide telecommunication service pursuant to chapter 704 of NRS and the regulations approved by the Public Utilities Commission of Nevada for telecommunication providers.

      2.  A video service provider shall obtain a certificate of public convenience and necessity pursuant to NRS 704.330 before providing any telecommunication service that is subject to regulation by the Public Utilities Commission of Nevada.

      3.  A local government shall not require a video service provider to obtain a franchise from the local government to provide:

      (a) Telecommunication service; or

      (b) Interactive computer service,

Ê if the video service provider uses its own video service network within the jurisdiction of the local government to provide such service.

      Sec. 44.  (Deleted by amendment.)

      Sec. 45.  1.  A local government shall not require a video service provider to place its facilities in ducts or conduits or on poles owned or leased by the local government.

      2.  A local government shall manage the use of any public right-of-way or highway by video service providers in a manner that:

      (a) Is consistent with federal and state law and the lawful police powers of the local government; and

      (b) Is competitively neutral and does not:

             (1) Discriminate among video service providers; or

             (2) Discriminate between video service providers and any other users of the public right-of-way or highway for the construction and operation of facilities.

      3.  In managing any public right-of-way or highway, a local government may:

      (a) Require a video service provider that is constructing, installing, working within, maintaining or repairing facilities in, on, under or over any public right-of-way or highway to obtain a construction, encroachment or occupancy permit or license for such work; and

      (b) Inspect the construction, installation, maintenance or repair work performed on such facilities.

      4.  If a video service provider makes a request for such a permit or license, the local government shall act upon the request not later than 10 business days after the date on which the request is made.

      5.  A local government may charge a video service provider a fee to issue such a permit or license or to perform any inspection authorized by this section. The amount of any fee charged by a local government pursuant to this subsection may not exceed the actual costs incurred by the local government in administering the process of issuing such permits or licenses and performing such inspections.

      6.  If there is a situation necessitating emergency response work or repair in, on, under or over any public right-of-way or highway, a video service provider may begin that work or repair without prior approval from a local government if the provider notifies the local government as promptly as reasonably possible after learning of the need for that work or repair.

      Sec. 46.  1.  For the privilege of providing video service through a video service network that occupies or uses, in whole or in part, any public right-of-way or highway within the jurisdiction of a local government, the local government may require a video service provider to pay a franchise fee to the local government based on the gross revenue that the provider receives from its subscribers within the jurisdiction of the local government.

 


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ê2007 Statutes of Nevada, Page 1364 (Chapter 326, AB 526)ê

 

right-of-way or highway within the jurisdiction of a local government, the local government may require a video service provider to pay a franchise fee to the local government based on the gross revenue that the provider receives from its subscribers within the jurisdiction of the local government.

      2.  To require the payment of the franchise fee, the governing body of the local government must adopt a nondiscriminatory ordinance or resolution that imposes the franchise fee equally and uniformly on all video service providers operating within the jurisdiction of the local government.

      3.  The local government shall not require a video service provider to pay a franchise fee for any year in a total amount that exceeds 5 percent of the gross revenue that the provider received during that year from its subscribers within the jurisdiction of the local government.

      4.  The entire amount of the franchise fee must be paid by a video service provider directly to the local government in legal tender of the United States or in a check, draft or note that is payable in legal tender of the United States.

      5.  A video service provider may:

      (a) Pass the franchise fee through to and collect the franchise fee from its subscribers within the jurisdiction of the local government based on the gross revenue received from each such subscriber; and

      (b) Designate the amount of the franchise fee collected from each subscriber as a separate line item on the subscriber’s bill.

      6.  Except as otherwise provided in subsection 7, the franchise fee authorized by this section:

      (a) Is the only fee, tax, assessment or other charge that a local government may impose on a video service provider for the privilege of providing video service or constructing or operating a video service network within the jurisdiction of the local government; and

      (b) Is in lieu of any other fee, tax, assessment or charge that may be imposed by a local government on a video service provider for its occupation or use of any public right-of-way or highway.

      7.  This section does not restrict the right of a local government to impose on a video service provider:

      (a) The fees authorized by subsection 5 of section 45 of this act; and

      (b) Any generally applicable and nondiscriminatory fees, ad valorem taxes, sales taxes or other taxes that are lawfully imposed on other businesses within the jurisdiction of the local government.

      Sec. 47.  1.  Not more than once every 3 years, a local government may, upon reasonable written notice, review and audit the business records of a video service provider to the extent necessary to ensure payment of a franchise fee pursuant to this chapter. If the results of such a review and audit identify an underpayment of the franchise fee in an amount that requires corrective action, the local government may perform a subsequent compliance review and audit to determine whether the video service provider has corrected the underpayment of the franchise fee. The compliance review and audit must be performed not later than 12 months after the date on which the results of the initial review and audit are submitted to the local government.

      2.  The local government and the video service provider shall each pay its own costs and fees relating to each review and audit performed pursuant to subsection 1, except that if the video service provider elects to have the local government review and audit the requested business records of the video service provider at a location outside the territorial boundaries of the local government, the video service provider shall pay the per diem allowances and travel expenses incurred by the local government to perform the review and audit at that location.

 


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ê2007 Statutes of Nevada, Page 1365 (Chapter 326, AB 526)ê

 

pursuant to subsection 1, except that if the video service provider elects to have the local government review and audit the requested business records of the video service provider at a location outside the territorial boundaries of the local government, the video service provider shall pay the per diem allowances and travel expenses incurred by the local government to perform the review and audit at that location.

      3.  A person who performs a review and audit pursuant to subsection 1 may not receive compensation that is based, in whole or in part, on:

      (a) Finding a particular result; or

      (b) The amount of any underpayment of the franchise fee that is identified as a result of the review and audit.

      4.  Any action to recover a disputed underpayment of a franchise fee from a video service provider must be commenced and prosecuted by the Attorney General on behalf of the affected local governments.

      5.  A video service provider may bring an action against a local government to recover a disputed overpayment of a franchise fee to the local government.

      6.  Any action to recover a disputed underpayment or overpayment of a franchise fee must be commenced in a district court not later than 4 years after the last day of the tax year to which the disputed underpayment or overpayment relates.

      7.  Each party shall pay its own costs and attorney’s fees in commencing and prosecuting any action involving a disputed underpayment or overpayment of a franchise fee.

      Sec. 48.  As used in sections 48 to 59, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 49 to 53, inclusive, have the meanings ascribed to them in those sections.

      Sec. 49.  “Hub office” means the facility and related equipment located within a video service network at which video programming is received directly or indirectly from national or international content providers or broadcast networks and combined with local programming and channels for signal distribution to subscribers through central offices and related transmission or transport facilities.

      Sec. 50.  “Locally produced video programming” means video programming produced for a service area by:

      1.  One or more natural persons who reside within the service area; or

      2.  Any local government, educational institution or other public or nonprofit private entity located within the service area.

      Sec. 51.  “Nonrepeat locally produced video programming” includes, without limitation, the first three videocastings of an official meeting of a local government.

      Sec. 52.  “PEG access channel” means a channel that videocasts PEG access programming.

      Sec. 53.  “PEG access programming” means noncommercial public, educational and governmental video programming or the capacity for the transmission of such programming.

      Sec. 54.  For the purposes of sections 48 to 59, inclusive, of this act, a PEG access channel shall be deemed to be “substantially utilized” if at least 12 hours of PEG access programming, excluding any alpha-numeric programming, is videocast on the PEG access channel each calendar day and at least 80 percent of the PEG access programming on each calendar day is nonrepeat locally produced video programming.

 


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ê2007 Statutes of Nevada, Page 1366 (Chapter 326, AB 526)ê

 

      Sec. 54.5.  1.  Except as otherwise provided in subsection 2, the provisions of sections 48 to 59, inclusive, of this act do not apply to any existing PEG access channel in service on the effective date of this act.

      2.  The provisions of sections 48 to 59, inclusive, of this act do not prevent a video service provider from changing the channel number assigned to any PEG access channel, including, without limitation, any existing PEG access channel in service on the effective date of this act. If a video service provider intends to change the channel number assigned to any PEG access channel, the provider:

      (a) Shall use good faith efforts to provide the affected local government with written notice of the change, to the extent reasonably practicable, at least 120 days before the date on which the change is to become effective; and

      (b) Shall not provide such notice less than 30 days before the date on which the change is to become effective.

      Sec. 55.  Except as otherwise provided in sections 48 to 59, inclusive, of this act, a holder of a certificate is not required to:

      1.  Provide any network or channel capacity or free or discounted cable service or other service to any governmental entity or school, library or other public building; or

      2.  Furnish any funds, services, programming, facilities, staffing or equipment related to the use of PEG access channels or the production or videocasting of PEG access programming.

      Sec. 56.  1.  Not sooner than 12 months after the date on which an incumbent cable operator obtains a certificate of authority, the incumbent cable operator may cease providing any network or channel capacity or free or discounted cable service or other service to any governmental entity or school, library or other public building.

      2.  If an incumbent cable operator ceases to provide network or channel capacity to a governmental entity, the incumbent cable operator may reclaim for its own purposes the network or channel capacity that was used by the governmental entity unless:

      (a) The governmental entity uses the capacity for PEG access programming pursuant to sections 48 to 59, inclusive, of this act; or

      (b) The incumbent cable operator and the governmental entity enter into a commercial agreement regarding the rates, terms and conditions for the governmental entity to continue using the network or channel capacity.

      Sec. 57.  1.  On or after the date on which a holder of a certificate first provides video service to at least one subscriber within the service area of a local government, the local government may request that the holder provide capacity for PEG access programming on its video service network on any service tier viewed by more than 50 percent of the subscribers in that service area. Within a reasonable period of not less than 120 days after the date on which the local government submits its request, the holder shall provide the local government with such capacity for PEG access programming subject to the provisions of sections 48 to 59, inclusive, of this act.

      2.  If a video service provider did not provide capacity for PEG access programming to a local government while operating pursuant to a local franchise, the video service provider shall, after obtaining a certificate of authority, provide capacity for PEG access programming to the local government upon a request made by the local government pursuant to this section.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1367 (Chapter 326, AB 526)ê

 

authority, provide capacity for PEG access programming to the local government upon a request made by the local government pursuant to this section.

      Sec. 58.  1.  A local government that requests capacity for PEG access programming may require a holder of a certificate to designate:

      (a) Not more than two PEG access channels, if the population within the jurisdiction of the local government is less than 50,000.

      (b) Not more than three PEG access channels, if the population within the jurisdiction of the local government is 50,000 or more.

      2.  The number of PEG access channels set forth in subsection 1 constitutes the total number of PEG access channels that the holder may be required to designate on any single video service network utilizing a single headend or hub office, or on all commonly owned video service networks that share a common headend or hub office, regardless of the number of local governments served from that headend or hub office. If more than one local government is served by a single or common headend or hub office, the populations within the jurisdictions of all those local governments must be aggregated to determine the total number of PEG access channels under subsection 1.

      3.  When a local government submits its request for capacity for PEG access programming, the local government must submit information which establishes that each PEG access channel it has requested will be substantially utilized. If one or more of the PEG access channels available under subsection 1 are being used at the headend or hub office when the local government submits its request, the holder is not required to make any of the remaining PEG access channels available to the local government unless the local government submits information which establishes that all existing PEG access channels at the headend or hub office are being substantially utilized.

      4.  Except as otherwise provided in subsection 5, if a local government does not substantially utilize a PEG access channel made available to it pursuant this section, the holder may reclaim the channel capacity for its own purposes. After reclaiming the channel capacity, if the local government makes a request for restoration of the PEG access channel and submits to the holder information which establishes that the PEG access channel will be substantially utilized, the holder shall restore the PEG access channel to the local government unless, when the request is submitted to the holder, the maximum number of PEG access channels available under subsection 1 are being used at the headend or hub office which serves the local government. If the restoration can be made within the limits of subsection 1, the holder shall restore the PEG access channel to the local government within a reasonable period of not less than 120 days after the date on which the request is submitted to the holder.

      5.  The provisions of subsection 4 do not apply to the first PEG access channel which is made available to a local government that does not have a PEG access channel in service on the effective date of this act.

      Sec. 59.  1.  A local government receiving the benefit of a PEG access channel, or its designee, is responsible for producing the programming of that channel and for providing that programming to the holder of a certificate. The holder is responsible only for the transmission of the programming to subscribers.

 


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ê2007 Statutes of Nevada, Page 1368 (Chapter 326, AB 526)ê

 

      2.  A local government, or its designee, shall provide to the holder all programming for a PEG access channel in a manner or form that is:

      (a) Capable of being accepted and transmitted by the holder over its video service network without alteration or change in the content or transmission signal; and

      (b) Compatible with the technology or protocol utilized by the holder to deliver its video service.

      3.  A local government shall:

      (a) Make the programming for each PEG access channel available in a nondiscriminatory manner to all holders or incumbent cable operators providing video service in the service area of the local government.

      (b) Provide all facilities necessary for connectivity to a single PEG access channel distribution point in the service area of the local government, except that the first 200 feet extending from the video service network for the connectivity is the responsibility of the holder.

      4.  Where necessary and technically feasible, holders or incumbent cable operators shall use reasonable efforts to interconnect their video service networks for the purpose of exchanging PEG access channel programming on mutually acceptable rates, terms and conditions. Interconnection may be accomplished by direct cable microwave link, satellite or other reasonable methods of connection. Holders and incumbent cable operators shall negotiate interconnection in good faith. The person requesting interconnection is responsible for any costs, including, without limitation, signal transmission from the origination point to the point of interconnection.

      Sec. 60.  1.  A video service provider or a local government may file with the Bureau of Consumer Protection a written complaint alleging a violation of the provisions of this chapter.

      2.  Upon a written complaint filed by a video service provider or a local government pursuant to this section, the Consumer’s Advocate may commence in a district court an action to enforce the provisions of this chapter and to seek equitable or declaratory relief.

      3.  If such an action is commenced against a video service provider and the district court determines that the provider has violated any provision of this chapter, the court shall issue an order to the provider directing the provider to take corrective action within a specified reasonable period and providing for such other equitable or declaratory relief as the court finds necessary, including, without limitation, suspending the certificate of authority held by the video service provider.

      4.  If the district court orders equitable or declaratory relief in an action brought by the Consumer’s Advocate pursuant to this section, the court shall award the Consumer’s Advocate, in an amount approved by the court, reasonable attorney’s fees and costs incurred by the Consumer’s Advocate in bringing the action.

      5.  The provisions of this section do not:

      (a) Apply to any action authorized pursuant to NRS 711.265 to 711.290, inclusive, or section 47 of this act.

      (b) Prevent the Bureau of Consumer Protection from enforcing any applicable provisions of chapter 598 of NRS against a video service provider.

      6.  As used in this section:

 


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ê2007 Statutes of Nevada, Page 1369 (Chapter 326, AB 526)ê

 

      (a) “Bureau of Consumer Protection” means the Bureau of Consumer Protection in the Office of the Attorney General.

      (b) “Consumer’s Advocate” means the Consumer’s Advocate of the Bureau of Consumer Protection.

      Sec. 61.  NRS 711.020 is hereby amended to read as follows:

      711.020  [The words and phrases] As used in this chapter [have the meanings ascribed to them] , unless the context otherwise requires, the words and terms defined in NRS 711.030 to 711.074, inclusive, [unless a different meaning clearly appears in the context.] and sections 3 to 27, inclusive, of this act have the meanings ascribed to them in those sections.

      Sec. 62.  NRS 711.030 is hereby amended to read as follows:

      711.030  1.  “Community antenna television company” means any person [or organization which] who owns, controls, operates or manages a community antenna television system . [, except that the definition]

      2.  The term does not include:

      [1.  A telephone, telegraph]

      (a) A telecommunication provider or electric utility regulated by the Public Utilities Commission of Nevada where the telecommunication provider or electric utility merely leases or rents to a community antenna television company wires or cables for the redistribution of television signals to or toward subscribers of that company; or

      [2.  A telephone or telegraph utility]

      (b) A telecommunication provider regulated by the Public Utilities Commission of Nevada where the [utility] telecommunication provider merely provides channels of communication under published tariffs filed with that Commission to a community antenna television company for the redistribution of television signals to or toward subscribers of that company.

      Sec. 63.  NRS 711.040 is hereby amended to read as follows:

      711.040  1.  “Community antenna television system” means any facility , or any component thereof, which is:

      (a) Located within this State [which is constructed] ;

      (b) Constructed in whole or in part in, on, under or over any public right-of-way or highway [or other public place and is operated] ; and

      (c) Operated to perform for hire the service of:

      [(a)] (1) Receiving and amplifying the signals broadcast by one or more television stations or provided for public, educational or governmental purposes and redistributing those signals by wire, cable or other means of closed transmission; or

      [(b)] (2) Providing two-way interactive services by wire, cable or other means of closed transmission, including, without limitation, Internet services, intranet services and electronic mail,

Ê to members of the public who subscribe to the service.

      2.  [Such a system] The term does not include any system which serves:

      (a) Fewer than 50 subscribers; or

      (b) Only the residents of one or more apartment dwellings under common ownership, control or management, and commercial establishments located on the premises of those dwellings , if the buildings are separated by not more than one public [street or] right-of-way [.] or highway.

      3.  As used in this section, “apartment dwelling” does not include a hotel, motel, condominium, town house or other similar dwelling.

 


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ê2007 Statutes of Nevada, Page 1370 (Chapter 326, AB 526)ê

 

      Sec. 64.  NRS 711.060 is hereby amended to read as follows:

      711.060  “Facility” means all real property, antennae, poles, wires, cables, conduits, amplifiers, instruments, appliances, fixtures and other personal property used by a [community antenna television company] video service provider to provide service to its subscribers.

      Sec. 65.  NRS 711.074 is hereby amended to read as follows:

      711.074  1.  “Local government” means any city or county . [which has the power to grant a franchise under NRS 711.190.]

      2.  The term includes, without limitation:

      (a) Any entity or agency that is directly or indirectly controlled by any city or county; and

      (b) Any entity or agency that is created by joint action or any interlocal or cooperative agreement of two or more cities or counties, or any combination thereof.

      Sec. 66.  NRS 711.175 is hereby amended to read as follows:

      711.175  1.  Except as otherwise provided in subsection 2 and NRS 318.1192 : [, 318.1193 and 318.1194:]

      (a) The governing body of a county whose population is 50,000 or more, and any entity or agency that is directly or indirectly controlled by such a county, shall not sell [the services of a community antenna television system] video service to the general public.

      (b) The governing body of a city whose population is 25,000 or more, and any entity or agency that is directly or indirectly controlled by such a city, shall not sell [the services of a community antenna television system] video service to the general public.

      2.  If the governing body of a county or city, or any entity or agency that is directly or indirectly controlled by such a county or city, was selling [the services of a community antenna television system] video service to the general public on April 1, 2003, it may continue to sell [the services of a community antenna television system] video service to the general public after that date, regardless of the population of the county or city.

      Sec. 67.  NRS 711.178 is hereby amended to read as follows:

      711.178  1.  If the governing body of a county or city is authorized pursuant to NRS 711.175 to sell [the services of a community antenna television system] video service to the general public, the governing body, and any entity or agency that is directly or indirectly controlled by the county or city, shall not construct, own, manage or operate a [community antenna television system] video service network in any area outside its territorial boundaries unless it:

      (a) Obtains a [franchise from the appropriate governing body pursuant to NRS 711.190] certificate of authority for that portion of the [community antenna television system] video service network which it constructs, owns, manages or operates outside its territorial boundaries; and

      (b) Complies with the same federal, state and local requirements that apply to a privately held [community antenna television company] video service provider with regard to that portion of the [community antenna television system] video service network which it constructs, owns, manages or operates outside its territorial boundaries.

      2.  [On and after October 1, 2003, if] If the governing body of a county or city is authorized pursuant to NRS 711.175 to sell [the services of a community antenna television system] video service to the general public, the governing body, and any entity or agency that is directly or indirectly controlled by the county or city, shall not construct, own, manage or operate a [community antenna television system] video service network in any area within its territorial boundaries which is governed by another governing body and which is served by one or more privately held [community antenna television companies] video service providers unless it:

 


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ê2007 Statutes of Nevada, Page 1371 (Chapter 326, AB 526)ê

 

controlled by the county or city, shall not construct, own, manage or operate a [community antenna television system] video service network in any area within its territorial boundaries which is governed by another governing body and which is served by one or more privately held [community antenna television companies] video service providers unless it:

      (a) Obtains a [franchise from the other governing body pursuant to NRS 711.190 or enters into an interlocal agreement with the other governing body;] certificate of authority for that portion of the video service network which it constructs, owns, manages or operates within the jurisdiction of the other governing body;

      (b) Is required by the [franchise or interlocal agreement] certificate of authority to comply with the same federal, state and local requirements that apply to the privately held [community antenna television companies;] video service providers with regard to that portion of the video service network which it constructs, owns, manages or operates within the jurisdiction of the other governing body; and

      (c) Is prohibited by the [franchise or interlocal agreement] certificate of authority from providing the services of the [community antenna television system,] video service provider, free of charge, to any governmental officer or employee for his personal or household use.

      3.  The provisions of this section do not require the governing body of a county or city, or any entity or agency that is directly or indirectly controlled by the county or city, to obtain a certificate of authority for a service area if it is providing video service as an incumbent cable operator which holds an unexpired local franchise and which has elected pursuant to sections 32 and 32.5 of this act to continue to operate within that service area pursuant to the local franchise.

      Sec. 68.  NRS 711.240 is hereby amended to read as follows:

      711.240  1.  Except with respect to reasonable promotional activities, a [person] video service provider shall not advertise, offer to provide or provide any video service to subscribers [of television services] at a rate, including any rebate, less than the cost to the [company] video service provider to provide [the service which is advertised, offered or provided] that service with the intent to:

      (a) Impair fair competition or restrain trade among [companies] video service providers which provide [services] video service in the same area; or

      (b) Create a monopoly.

      2.  For the purposes of this section, “cost” means the expense of doing business including, without limitation, expenses for labor, rent, depreciation, interest, maintenance, delivery of the video service, franchise fees, taxes, insurance and advertising.

      3.  [A community antenna television company may offer any telecommunication or related services which are offered in the same area by a telephone company, pursuant to chapter 704 of NRS and regulations approved by the Public Utilities Commission of Nevada for providers of similar services. A community antenna television company shall obtain a certificate of public convenience and necessity pursuant to NRS 704.330 before providing telecommunication or related services which are subject to regulation by the Public Utilities Commission of Nevada.

      4.]  A violation of subsection 1 constitutes a prohibited act under NRS 598A.060. The Attorney General and any other person may exercise the powers conferred by that chapter to prevent, remedy or punish such a violation.

 


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ê2007 Statutes of Nevada, Page 1372 (Chapter 326, AB 526)ê

 

powers conferred by that chapter to prevent, remedy or punish such a violation. The provisions of chapter 598A of NRS apply to any such violation.

      Sec. 69.  NRS 711.255 is hereby amended to read as follows:

      711.255  1.  A landlord shall not:

      (a) Interfere with the receipt of service by a tenant from a [community antenna television company] video service provider or discriminate against a tenant for receiving [such a company’s service.] service from a video service provider.

      (b) Except as otherwise provided in subsection 3, demand or accept payment of any fee, charge or valuable consideration from a [community antenna television company] video service provider or a tenant in exchange for granting access to the [community antenna television company] provider to provide [its services] service to the tenant.

      2.  A [community antenna television company] video service provider which desires to provide [such services] service to a tenant shall give 30 days’ written notice of that desire to the landlord before the [company] provider takes any action to provide that service. Before authorizing the receipt of such service a landlord may:

      (a) Take such reasonable steps as are necessary to ensure that the safety, function and appearance of the premises and the convenience and safety of persons on the property are not adversely affected by the installation, construction, operation or maintenance of the facilities necessary to provide the service, and is entitled to be reimbursed by the [community antenna television company] provider for the reasonable expenses incurred;

      (b) Require that the cost of the installation, construction, operation, maintenance or removal of the necessary facilities be borne by the [community antenna television company;] provider; and

      (c) Require the [community antenna television company] provider to provide evidence that the [company] provider will indemnify the landlord for any damage caused by the installation, construction, operation, maintenance or removal of the facilities.

      3.  A landlord is entitled to receive reasonable compensation for any direct adverse economic effect resulting from granting access to a [community antenna television company.] video service provider. There is a rebuttable presumption that the direct adverse economic effect resulting from granting access to the real property of the landlord is $1,000 or $1 for each dwelling unit thereon, whichever sum is greater. If a landlord intends to require the payment of such compensation in an amount exceeding that sum, the landlord shall notify the [community antenna television company] provider in writing of that intention. If the [company] provider does not receive such a notice within 20 days after the landlord is notified by the [company] provider that a tenant has requested the [company] provider to provide [its services] service to the tenant on the landlord’s premises, the landlord may not require compensation for access to that tenant’s dwelling unit in an amount exceeding $1,000. If within 30 days after receiving a landlord’s request for compensation in an amount exceeding $1,000, the [company] provider has not agreed to pay the requested amount or an amount mutually acceptable to the [company] provider and the landlord, the landlord may petition a court of competent jurisdiction to set a reasonable amount of compensation for the damage of or taking of his real property.

 


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ê2007 Statutes of Nevada, Page 1373 (Chapter 326, AB 526)ê

 

amount of compensation for the damage of or taking of his real property. Such an action must be filed within 6 months after the date the [company] provider completes construction.

      4.  In establishing the amount which will constitute reasonable compensation for any damage or taking claim by a landlord in excess of the sum established by rebuttable presumption pursuant to subsection 3, the court shall consider:

      (a) The extent to which the [community antenna television company’s] facilities of the video service provider physically occupy the premises;

      (b) The actual long-term damage which the [company’s] facilities of the video service provider may cause to the premises;

      (c) The extent to which the [company’s] facilities of the video service provider would interfere with the normal use and enjoyment of the premises; and

      (d) The diminution or enhancement in value of the premises resulting from the availability of the service.

[Ê The court may also award to the prevailing party reasonable attorney’s fees.]

      5.  The [company’s] right of a video service provider to construct, install or repair its facilities and maintain its services within and upon the landlord’s premises is not affected or impaired because the landlord requests compensation in an amount exceeding the sum established by rebuttable presumption pursuant to subsection 3, or files an action to assert a specific claim against the [company.] provider.

      6.  A [community antenna television company] video service provider shall not offer a special discount or other benefit to a particular group of tenants as an incentive for those tenants to request [the company’s services,] service from the provider, unless the same discount or benefit is offered generally in the county.

      7.  [The community antenna television company and the] A video service provider and a landlord shall negotiate in good faith for the purchase of the landlord’s existing cable facilities rather than for the construction of new facilities on the premises.

      8.  As used in this section, “landlord” means an owner of real property, or his authorized representative, who provides a dwelling unit on the real property for occupancy by another for valuable consideration. The term includes, without limitation, the lessor of a mobile home lot and the lessor or operator of a mobile home park.

      Sec. 70.  NRS 711.265 is hereby amended to read as follows:

      711.265  1.  Any person who:

      (a) By the attachment of a ground wire, or by any other contrivance, willfully destroys the insulation of a [telecommunications line of a community antenna television company,] wire, cable, conduit, line or similar facility of a video service provider or interrupts the transmission of the electric current through [the line;] such a wire, cable, conduit, line or similar facility;

      (b) Willfully interferes with the use of [any such line,] such a wire, cable, conduit, line or similar facility or obstructs or postpones the transmission of any message or signal over [the line;] such a wire, cable, conduit, line or similar facility; or

      (c) Procures or advises any such injury, interference or obstruction,

 


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ê2007 Statutes of Nevada, Page 1374 (Chapter 326, AB 526)ê

 

Ê is guilty of a public offense, as prescribed in NRS 193.155, proportionate to the value of any property damaged, altered, removed or destroyed and in no event less than a misdemeanor.

      2.  Any person who violates the provisions of subsection 1 is, in addition to the penalty set forth in that subsection, liable to the [community antenna television company] video service provider injured by such conduct in a civil action for all damages occasioned thereby.

      Sec. 71.  NRS 711.270 is hereby amended to read as follows:

      711.270  1.  It is unlawful for a person knowingly , [and] with the intent to intercept or receive a program or other service provided by a [community antenna television company,] video service provider and without the authorization of the [company,] provider, to:

      (a) Make a connection or attach a device to a line or other [component of a community antenna television company;] facility of the provider;

      (b) Purchase or possess a device or kit designed to intercept or receive a program or other service provided by the [community antenna television company;] provider;

      (c) Make or maintain a modification to a device installed by or with the authorization of [a community antenna television company] the provider to intercept or receive a program or other service provided by the [community antenna television company;] provider; or

      (d) Manufacture, import, distribute, advertise, sell, lease, offer to sell or lease, or possess with the intent to sell or lease a device designed to decode, descramble, intercept or otherwise make intelligible a signal encoded by [a community antenna television company.] the provider.

      2.  Unless a greater penalty is provided in NRS 711.265:

      (a) Except as otherwise provided in paragraph (b), a person who violates paragraph (a), (b) or (c) of subsection 1 is guilty of a misdemeanor.

      (b) A person who violates paragraph (a), (b) or (c) of subsection 1 for commercial advantage, whether direct or indirect, is guilty of a gross misdemeanor.

      (c) A person who violates paragraph (d) of subsection 1:

             (1) If the violation involves nine or fewer devices, is guilty of a gross misdemeanor.

             (2) If the violation involves 10 or more devices, is guilty of a category D felony and shall be punished as provided in NRS 193.130.

      Sec. 72.  NRS 711.280 is hereby amended to read as follows:

      711.280  1.  A person who violates paragraph (a), (b) or (c) of subsection 1 of NRS 711.270 is, in addition to being criminally liable pursuant to NRS 711.270, civilly liable to the [community antenna television company] video service provider injured by the conduct for $3,500 or three times any actual damages incurred by the company, whichever is greater, and reasonable attorney’s fees.

      2.  A person who violates paragraph (d) of subsection 1 of NRS 711.270 is, in addition to being criminally liable pursuant to NRS 711.270, civilly liable to the [community antenna television company] video service provider injured by the conduct for $5,000 or three times any actual damages incurred by the company, whichever is greater, and reasonable attorney’s fees.

      3.  In any action brought pursuant to this section, proof that any of the acts prohibited in subsection 1 were committed on or about the premises occupied by the defendant is prima facie evidence that such acts were committed by the defendant.

 


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ê2007 Statutes of Nevada, Page 1375 (Chapter 326, AB 526)ê

 

      4.  [An owner or operator of a community antenna television company] A video service provider may bring an action to enjoin any violation of NRS 711.270.

      Sec. 73.  NRS 37.010 is hereby amended to read as follows:

      37.010  Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public purposes:

      1.  Federal activities. All public purposes authorized by the Government of the United States.

      2.  State activities. Public buildings and grounds for the use of the State, the Nevada System of Higher Education and all other public purposes authorized by the Legislature.

      3.  County, city, town and school district activities. Public buildings and grounds for the use of any county, incorporated city or town, or school district, reservoirs, water rights, canals, aqueducts, flumes, ditches or pipes for conducting water for the use of the inhabitants of any county, incorporated city or town, for draining any county, incorporated city or town, for raising the banks of streams, removing obstructions therefrom, and widening, deepening or straightening their channels, for roads, streets and alleys, and all other public purposes for the benefit of any county, incorporated city or town, or the inhabitants thereof.

      4.  Bridges, toll roads, railroads, street railways and similar uses. Wharves, docks, piers, chutes, booms, ferries, bridges, toll roads, byroads, plank and turnpike roads, roads for transportation by traction engines or locomotives, roads for logging or lumbering purposes, and railroads and street railways for public transportation.

      5.  Ditches, canals, aqueducts for smelting, domestic uses, irrigation and reclamation. Reservoirs, dams, water gates, canals, ditches, flumes, tunnels, aqueducts and pipes for supplying persons, mines, mills, smelters or other works for the reduction of ores, with water for domestic and other uses, for irrigating purposes, for draining and reclaiming lands, or for floating logs and lumber on streams not navigable.

      6.  Mining, smelting and related activities. Mining, smelting and related activities as follows:

      (a) Mining and related activities, which are recognized as the paramount interest of this State.

      (b) Roads, railroads, tramways, tunnels, ditches, flumes, pipes, reservoirs, dams, water gates, canals, aqueducts and dumping places to facilitate the milling, smelting or other reduction of ores, the working, reclamation or dewatering of mines, and for all mining purposes, outlets, natural or otherwise, for the deposit or conduct of tailings, refuse, or water from mills, smelters, or other work for the reduction of ores from mines, mill dams, pipelines, tanks or reservoirs for natural gas or oil, an occupancy in common by the owners or possessors of different mines, mills, smelters or other places for the reduction of ores, or any place for the flow, deposit or conduct of tailings or refuse matter and the necessary land upon which to erect smelters and to operate them successfully, including the deposit of fine flue dust, fumes and smoke.

      7.  Byroads. Byroads leading from highways to residences and farms.

      8.  Public utilities. Lines for telegraph, telephone, electric light and electric power and sites for plants for electric light and power.

 


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ê2007 Statutes of Nevada, Page 1376 (Chapter 326, AB 526)ê

 

      9.  Sewerage. Sewerage of any city, town, settlement of not less than 10 families or any public building belonging to the State or college or university.

      10.  Water for generation and transmission of electricity. Canals, reservoirs, dams, ditches, flumes, aqueducts and pipes for supplying and storing water for the operation of machinery to generate and transmit electricity for power, light or heat.

      11.  Cemeteries, public parks. Cemeteries or public parks.

      12.  Pipelines of beet sugar industry. Pipelines to conduct any liquids connected with the manufacture of beet sugar.

      13.  Pipelines for petroleum products, natural gas. Pipelines for the transportation of crude petroleum, petroleum products or natural gas, whether interstate or intrastate.

      14.  Aviation. Airports, facilities for air navigation and aerial rights-of-way.

      15.  Monorails. Monorails and any other overhead or underground system used for public transportation.

      16.  [Community antenna television companies. Community antenna television companies which have been granted a franchise from the governing body of the jurisdictions in which they provide services.] Video service providers. Video service providers that are authorized pursuant to chapter 711 of NRS to operate a video service network. The exercise of the power of eminent domain may include the right to use the wires, conduits, cables or poles of any public utility if:

      (a) It creates no substantial detriment to the service provided by the utility;

      (b) It causes no irreparable injury to the utility; and

      (c) The Public Utilities Commission of Nevada, after giving notice and affording a hearing to all persons affected by the proposed use of the wires, conduits, cables or poles, has found that it is in the public interest.

      17.  Redevelopment. The acquisition of property pursuant to NRS 279.382 to 279.685, inclusive.

      Sec. 74.  NRS 118B.0195 is hereby amended to read as follows:

      118B.0195  “Utility” includes [a] :

      1.  A public utility which provides:

      [1.] (a) Electricity;

      [2.] (b) Natural gas;

      [3.] (c) Liquefied petroleum gas;

      [4.  Cable television;

      5.] (d) Sewer services;

      [6.] (e) Garbage collection; or

      [7.] (f) Water.

      2.  A video service provider which provides video service pursuant to chapter 711 of NRS.

      Sec. 75.  NRS 205.0829 is hereby amended to read as follows:

      205.0829  “Services” includes labor, professional services, transportation, cable television [,] or other video service, telephone, gas or electricity services, accommodations in hotels, restaurants, leased premises or elsewhere, admissions to exhibitions and the use of vehicles or other movable property.

 


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ê2007 Statutes of Nevada, Page 1377 (Chapter 326, AB 526)ê

 

      Sec. 76.  NRS 205.4743 is hereby amended to read as follows:

      205.4743  1.  “Information service” means a service that is designed or has the capability to generate, process, store, retrieve, convey, emit, transmit, receive, relay, record or reproduce any data, information, image, program, signal or sound by means of any component, device, equipment, system or network, including, without limitation, by means of:

      (a) A computer, computer system, computer network, modem or scanner.

      (b) A telephone, cellular phone, satellite phone, pager, personal communications device or facsimile machine.

      (c) Any type of transmitter or receiver.

      (d) Any other component, device, equipment, system or network that uses analog, digital, electronic, electromagnetic, magnetic or optical technology.

      2.  The term does not include [a community antenna television company,] video service, as defined in [NRS 711.030.] section 25 of this act.

      Sec. 76.3.  NRS 228.340 is hereby amended to read as follows:

      228.340  1.  Except as otherwise provided by NRS 598A.260, all money collected by the Bureau of Consumer Protection pursuant to NRS 704.033 and chapter 711 of NRS and pursuant to those provisions of NRS relating to private investigators and unfair trade practices must be deposited with the State Treasurer for credit to the Account for the Bureau of Consumer Protection.

      2.  Money in the Account may be used only to defray the costs of maintaining the Office of the Consumer’s Advocate and for carrying out the provisions of NRS 228.300 to 228.390, inclusive.

      3.  All claims against the Account must be paid as other claims against the State are paid.

      Sec. 76.5.  NRS 228.380 is hereby amended to read as follows:

      228.380  1.  Except as otherwise provided in this section, the Consumer’s Advocate may exercise the power of the Attorney General in areas of consumer protection, including, but not limited to, enforcement of chapters 90, 597, 598, 598A, 598B, 598C [and] , 599B and 711 of NRS.

      2.  The Consumer’s Advocate may not exercise any powers to enforce any criminal statute set forth in [chapters] :

      (a) Chapters 90, 597, 598, 598A, 598B, 598C or 599B of NRS for any transaction or activity that involves a proceeding before the Public Utilities Commission of Nevada if the Consumer’s Advocate is participating in that proceeding as a real party in interest on behalf of the customers or a class of customers of utilities [.

      2.] ; or

      (b) Chapter 711 of NRS.

      3.  The Consumer’s Advocate may expend revenues derived from NRS 704.033 only for activities directly related to the protection of customers of public utilities.

      [3.] 4.  The powers of the Consumer’s Advocate do not extend to proceedings before the Public Utilities Commission of Nevada directly relating to discretionary or competitive telecommunication services.

      Sec. 77.  NRS 244.186 is hereby amended to read as follows:

      244.186  1.  If the governing body of a county is authorized pursuant to NRS 711.175 to sell video [programming services] service to the general public over a [community antenna television system,] video service network, the governing body, and any entity or agency that is directly or indirectly controlled by the county, shall not do any of the following:

 


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ê2007 Statutes of Nevada, Page 1378 (Chapter 326, AB 526)ê

 

the governing body, and any entity or agency that is directly or indirectly controlled by the county, shall not do any of the following:

      (a) Sell such video [programming services] service at a price that is less than the actual cost of the video [programming services] service or sell a bundle of services containing such video [programming services] service at a price that is less than the actual cost of the bundle of services.

      (b) Use any money from the county general fund for the provision of such video [programming services] service over its [community antenna television system.] video service network.

      (c) Use its rights-of-way, its property or any special power it may possess by virtue of its status as a government or a government-owned utility to:

             (1) Create a preference or advantage for its [community antenna television system;] video service network; or

             (2) Impose any discriminatory burden on any privately held [community antenna television company.] video service provider.

      2.  The provisions of this section must be enforced in the manner set forth in paragraph (c) of subsection 4 of NRS 354.624 and paragraph (c) of subsection 5 of NRS 354.624.

      3.  The provisions of this section do not create an exclusive remedy and do not abrogate or limit any other action or remedy that is available to the governing body or a privately held [community antenna television company] video service provider pursuant to any other statute or the common law.

      4.  As used in this section:

      (a) [“Community antenna television company”] “Video service” has the meaning ascribed to it in [NRS 711.030.

      (b) “Community antenna television system” has the meaning ascribed to it in NRS 711.040.

      (c) “Video programming services” means services which are provided over a community antenna television system and which contain:

             (1) Programming provided by a television broadcast station; or

             (2) Programming that is generally considered comparable to programming provided by a television broadcast station.] section 25 of this act.

      (b) “Video service network” has the meaning ascribed to it in section 26 of this act.

      (c) “Video service provider” has the meaning ascribed to it in section 27 of this act.

      Sec. 78.  NRS 271.204 is hereby amended to read as follows:

      271.204  “Service facilities” means any works or improvements used or useful in providing:

      1.  Electric or communication service; or

      2.  Service from a [community antenna television system] video service network, as that term is defined in [NRS 711.040,] section 26 of this act,

Ê including, but not limited to, poles, supports, tunnels, manholes, vaults, conduits, pipes, wires, conductors, guys, stubs, platforms, crossarms, braces, transformers, insulators, cutouts, switches, capacitors, meters, communication circuits, appliances, attachments and appurtenances.

 


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      Sec. 79.  NRS 271.2045 is hereby amended to read as follows:

      271.2045  “Service provider” means:

      1.  A person or corporation subject to the jurisdiction of the Public Utilities Commission of Nevada that provides electric or communication service to the public; and

      2.  A [community antenna television company] video service provider, as that term is defined in [NRS 711.030] section 27 of this act, that provides service from a [community antenna television system,] video service network,

Ê by means of service facilities.

      Sec. 80.  NRS 271.850 is hereby amended to read as follows:

      271.850  1.  The service facilities within the boundaries of each lot within a district to finance an underground conversion project established pursuant to NRS 271.800 must be placed underground at the same time as or after the underground system in private easements and public places is placed underground. The service provider involved, directly or through a contractor, shall, in accordance with the rules and regulations of the service provider, but subject to the regulations of the Public Utilities Commission of Nevada and any other applicable laws, ordinances, rules or regulations of the municipality or any other public agency under the police power, convert to underground its facilities on any such lot:

      (a) For service facilities that provide electric service, up to the service entrance.

      (b) For service facilities that provide communication service or service from a [community antenna television system] video service network, as that term is defined in [NRS 711.040,] section 26 of this act, up to the connection point within the house or structure.

      2.  All costs or expenses of conversion must be included in the cost on which the cost of the underground conversion for that property is calculated.

      3.  As used in this section, “lot” includes any portion, piece or parcel of land.

      Sec. 81.  NRS 278.329 is hereby amended to read as follows:

      278.329  A governing body or its authorized representative may relieve a person who proposes to divide land pursuant to NRS 278.360 to 278.460, inclusive, or 278.471 to 278.4725, inclusive, from the requirement to dedicate easements to public utilities that provide gas, electric, telecommunications, water and sewer services and any [franchised community antenna television companies] video service providers pursuant to paragraph (d) or (e) of subsection 9 of NRS 278.372 or paragraph (c) or (d) of subsection 4 of NRS 278.472 if the person demonstrates to the public body or its authorized representative that there is not an essential nexus to the public purpose for the dedication and the dedication is not roughly proportional in nature and extent to the impact of the proposed development.

      Sec. 82.  NRS 278.372 is hereby amended to read as follows:

      278.372  1.  The final map must be clearly and legibly drawn in permanent black ink upon good tracing cloth or produced by the use of other materials of a permanent nature generally used for such purpose in the engineering profession. Affidavits, certificates and acknowledgments must be legibly stamped or printed upon the final map with permanent black ink.

      2.  The size of each sheet of the final map must be 24 by 32 inches. A marginal line must be drawn completely around each sheet, leaving an entirely blank margin of 1 inch at the top, bottom, and right edges, and of 2 inches at the left edge along the 24-inch dimension.

 


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entirely blank margin of 1 inch at the top, bottom, and right edges, and of 2 inches at the left edge along the 24-inch dimension.

      3.  The scale of the final map must be large enough to show all details clearly. The final map must have a sufficient number of sheets to accomplish this end.

      4.  Each sheet of the final map must indicate its particular number, the total number of sheets in the final map and its relation to each adjoining sheet.

      5.  The final map must show all surveyed and mathematical information and data necessary to locate all monuments and to locate and retrace all interior and exterior boundary lines appearing thereon, including the bearings and distances of straight lines, central angle, radii and arc length for all curves and such information as may be necessary to determine the location of the centers of curves.

      6.  Each lot must be numbered or lettered.

      7.  Each street must be named and each block may be numbered or lettered.

      8.  The exterior boundary of the land included within the subdivision must be indicated by graphic border.

      9.  The final map must show:

      (a) The definite location of the subdivision, particularly its relation to surrounding surveys.

      (b) The area of each lot and the total area of the land in the subdivision in the following manner:

             (1) In acres, calculated to the nearest one-hundredth of an acre, if the area is 2 acres or more; or

             (2) In square feet if the area is less than 2 acres.

      (c) Any roads or easements of access which the owner intends to offer for dedication.

      (d) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide gas, electric and telecommunications services and for any [community antenna television companies that have a franchise] video service providers that are authorized pursuant to chapter 711 of NRS to operate a [community antenna television system] video service network in that area.

      (e) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide water and sewer services.

      10.  The final map for a condominium must also indicate, for the purpose of assessing taxes, whether any garage units, parking spaces or storage units may be conveyed separately from the units within the condominium or are parceled separately from those units. As used in this subsection, “condominium” has the meaning ascribed to it in NRS 116.027.

      11.  The final map must also satisfy any additional survey and map requirements, including the delineation of Nevada state plane coordinates established pursuant to chapter 327 of NRS, for any corner of the subdivision or any other point prescribed by the local ordinance.

      Sec. 83.  NRS 278.374 is hereby amended to read as follows:

      278.374  1.  Except as otherwise provided in subsection 2, a final map presented for filing must include a certificate signed and acknowledged, in the manner provided in NRS 240.1665 or 240.167, by each person who is an owner of the land:

 


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      (a) Consenting to the preparation and recordation of the final map.

      (b) Offering for dedication that part of the land which the person wishes to dedicate for public use, subject to any reservation contained therein.

      (c) Reserving any parcel from dedication.

      (d) Granting any permanent easement for utility or [community antenna television cable] video service network installation or access, as designated on the final map, together with a statement approving such easement, signed by the public utility, [community antenna television company] video service provider or person in whose favor the easement is created or whose services are required.

      2.  If the map presented for filing is an amended map of a common-interest community, the certificate need only be signed and acknowledged by a person authorized to record the map under chapter 116 of NRS.

      3.  A final map of a common-interest community presented for recording and, if required by local ordinance, a final map of any other subdivision presented for recording must include:

      (a) A report from a title company in which the title company certifies that it has issued a guarantee for the benefit of the local government which lists the names of:

             (1) Each owner of record of the land to be divided; and

             (2) Each holder of record of a security interest in the land to be divided, if the security interest was created by a mortgage or a deed of trust.

Ê The guarantee accompanying a final map of a common-interest community must also show that there are no liens of record against the common-interest community or any part thereof for delinquent state, county, municipal, federal or local taxes or assessments collected as taxes or special assessments.

      (b) The written consent of each holder of record of a security interest listed pursuant to subparagraph (2) of paragraph (a), to the preparation and recordation of the final map. A holder of record may consent by signing:

             (1) The final map; or

             (2) A separate document that is filed with the final map and declares his consent to the division of land.

      4.  For the purpose of this section, the following shall be deemed not to be an interest in land:

      (a) A lien for taxes or special assessments.

      (b) A trust interest under a bond indenture.

      5.  As used in this section, “guarantee” means a guarantee of the type filed with the Commissioner of Insurance pursuant to paragraph (e) of subsection 1 of NRS 692A.120.

      Sec. 84.  NRS 278.4713 is hereby amended to read as follows:

      278.4713  1.  Unless the filing of a tentative map is waived, a person who proposes to make a division of land pursuant to NRS 278.471 to 278.4725, inclusive, must first:

      (a) File a tentative map for the area in which the land is located with the planning commission or its designated representative or with the clerk of the governing body if there is no planning commission; and

      (b) Pay a filing fee of no more than $750 set by the governing body.

      2.  This map must be:

      (a) Entitled “Tentative Map of Division into Large Parcels”; and

      (b) Prepared and certified by a professional land surveyor.

      3.  This map must show:

 


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ê2007 Statutes of Nevada, Page 1382 (Chapter 326, AB 526)ê

 

      (a) The approximate, calculated or actual acreage of each lot and the total acreage of the land to be divided.

      (b) Any roads or easements of access which exist, are proposed in the applicable master plan or are proposed by the person who intends to divide the land.

      (c) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide gas, electric and telecommunications services and for any [community antenna television companies that have a franchise] video service providers that are authorized pursuant to chapter 711 of NRS to operate a [community antenna television system] video service network in that area.

      (d) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide water and sewer services.

      (e) Any existing easements for irrigation or drainage, and any normally continuously flowing watercourses.

      (f) An indication of any existing road or easement which the owner does not intend to dedicate.

      (g) The name and address of the owner of the land.

      Sec. 85.  NRS 278.472 is hereby amended to read as follows:

      278.472  1.  After the planning commission or the governing body or its authorized representative has approved the tentative map or waived the requirement of its filing, or 60 days after the date of its filing, whichever is earlier, the person who proposes to divide the land may file a final map of the division with the governing body or its authorized representative or, if authorized by the governing body, with the planning commission. The map must be accompanied by a written statement signed by the treasurer of the county in which the land to be divided is located indicating that all property taxes on the land for the fiscal year have been paid.

      2.  This map must be:

      (a) Entitled “Map of Division into Large Parcels.”

      (b) Filed with the governing body or its authorized representative or, if authorized by the governing body, with the planning commission not later than 1 year after the date that the tentative map was first filed with the planning commission or the governing body or its authorized representative or that the requirement of its filing was waived.

      (c) Prepared by a professional land surveyor.

      (d) Based upon an actual survey by the preparer and show the date of the survey and contain the certificate of the surveyor required pursuant to NRS 278.375.

      (e) Clearly and legibly drawn in permanent black ink upon good tracing cloth or produced by the use of other materials of a permanent nature generally used for this purpose in the engineering profession. Affidavits, certificates and acknowledgments must be legibly stamped or printed upon the map with permanent black ink.

      (f) Twenty-four by 32 inches in size with a marginal line drawn completely around each sheet, leaving an entirely blank margin of 1 inch at the top, bottom, and right edges, and of 2 inches at the left edge along the 24-inch dimension.

      (g) Of scale large enough to show clearly all details.

      3.  The particular number of the sheet and the total number of sheets comprising the map must be stated on each of the sheets, and its relation to each adjoining sheet must be clearly shown.

 


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      4.  This map must show and define:

      (a) All subdivision lots by the number and actual acreage of each lot.

      (b) Any roads or easements of access which exist and which the owner intends to offer for dedication, any roads or easements of access which are shown on the applicable master plan and any roads or easements of access which are specially required by the planning commission or the governing body or its authorized representative.

      (c) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide gas, electric and telecommunications services and for any [community antenna television companies that have a franchise] video service providers that are authorized pursuant to chapter 711 of NRS to operate a [community antenna television system] video service network in that area.

      (d) Except as otherwise provided in NRS 278.329, an easement for public utilities that provide water and sewer services.

      (e) Any existing easements for irrigation or drainage, and any normally continuously flowing watercourses.

      Sec. 86.  NRS 318.1192 is hereby amended to read as follows:

      318.1192  In the case of a district created wholly or in part for acquiring television maintenance facilities, the board shall have power to:

      1.  Acquire television broadcast, transmission and relay improvements [.] and construct and operate a video service network pursuant to chapter 711 of NRS.

      2.  Levy special assessments against specially benefited real property on which are located television receivers operated within the district and able to receive television broadcasts supplied by the district.

      3.  Fix tolls, rates and other service or use charges for services furnished by the district or facilities of the district, including, without limitation, any one, all or any combination of the following:

      (a) Flat rate charges;

      (b) Charges classified by the number of receivers;

      (c) Charges classified by the value of property served by television receivers;

      (d) Charges classified by the character of the property served by television receivers;

      (e) Minimum charges;

      (f) Stand-by charges; or

      (g) Other charges based on the availability of service.

      4.  The district shall not have the power in connection with the basic power stated in this section to borrow money which loan is evidenced by the issuance of any general obligation bonds or other general obligations of the district.

      Sec. 87.  NRS 354.59881 is hereby amended to read as follows:

      354.59881  As used in NRS 354.59881 to 354.59889, inclusive, unless the context otherwise requires, the words and terms defined in NRS [354.598811] 354.598812 to 354.598818, inclusive, have the meanings ascribed to them in those sections.

      Sec. 88.  NRS 354.598814 is hereby amended to read as follows:

      354.598814  “Fee” means a charge imposed by a city or county upon a public utility for a business license, franchise or right-of-way over streets or other public areas, except [:

 


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      1.  Any] any charge paid pursuant to the provisions of NRS 709.110, 709.230 or 709.270 . [; or

      2.  A term or condition of a franchise granted by:

      (a) A county whose population is 400,000 or more, or by an incorporated city that is located in whole or in part within such a county, that requires a community antenna television company to provide channels for public, educational or governmental access.

      (b) A county or an incorporated city not specified in paragraph (a) that requires a community antenna television company to provide channels, facilities or equipment for public, educational or governmental access.]

      Sec. 89.  NRS 354.598817 is hereby amended to read as follows:

      354.598817  1.  “Public utility” includes [:

      1.  A] a person or local government that:

      (a) Provides electric energy or gas, whether or not the person or local government is subject to regulation by the Public Utilities Commission of Nevada;

      (b) Is a telecommunication carrier as that term is defined in 47 U.S.C. § 153 on July 16, 1997, if the person or local government holds a certificate of public convenience and necessity issued by the Public Utilities Commission of Nevada and derives intrastate revenue from the provision of telecommunication service to retail customers; or

      (c) Sells or resells personal wireless services.

      2.  [A community antenna television company as that term is] The term does not include a video service provider, as defined in [NRS 711.030.] section 27 of this act.

      Sec. 90.  NRS 354.598818 is hereby amended to read as follows:

      354.598818  “Revenue” does not include:

      1.  Any proceeds from the interstate sale of natural gas to a provider of electric energy that holds a certificate of public convenience and necessity issued by the Public Utilities Commission of Nevada; or

      2.  Any revenue of a provider of a telecommunication service other than intrastate revenue that the provider collects from retail customers . [; or

      3.  The amount deducted from the gross revenue of a community antenna television company pursuant to paragraph (b) of subsection 2 of NRS 711.200.]

      Sec. 91.  NRS 354.5989 is hereby amended to read as follows:

      354.5989  1.  A local government shall not increase any fee for a business license or adopt a fee for a business license issued for revenue or regulation, or both, except as permitted by this section. This prohibition does not apply to fees:

      (a) Imposed by hospitals, county airports, airport authorities, convention authorities, the Las Vegas Valley Water District or the Clark County Sanitation District;

      (b) Imposed on public utilities for the privilege of doing business pursuant to a franchise;

      (c) Imposed in compliance with the provisions of section 46 of this act on video service providers for the privilege of doing business pursuant to chapter 711 of NRS;

      (d) For business licenses which are calculated as a fraction or percentage of the gross revenue of the business;

      [(d)] (e) Imposed pursuant to NRS 244.348, 268.0973, 268.821 or 269.182; or

 


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ê2007 Statutes of Nevada, Page 1385 (Chapter 326, AB 526)ê

 

      [(e)] (f) Regulated pursuant to NRS 354.59881 to 354.59889, inclusive.

      2.  The amount of revenue the local government derives or is allowed to derive, whichever is greater, from all fees for business licenses except:

      (a) The fees excluded by subsection 1, for the fiscal year ended on June 30, 1991; and

      (b) The fees collected for a particular type of business during the immediately preceding fiscal year ending on June 30 that a local government will not collect in the next subsequent fiscal year,

Ê is the base from which the maximum allowable revenue from such fees must be calculated for the next subsequent fiscal year. To the base must be added the sum of the amounts respectively equal to the product of the base multiplied by the percentage increase in the population of the local government added to the percentage increase in the Consumer Price Index for the year ending on December 31 next preceding the year for which the limit is being calculated. The amount so determined becomes the base for computing the allowed increase for each subsequent year.

      3.  A local government may not increase any fee for a business license which is calculated as a fraction or percentage of the gross revenue of the business if its total revenues from such fees have increased during the preceding fiscal year by more than the increase in the Consumer Price Index during that preceding calendar year. The provisions of this subsection do not apply to a fee [imposed] :

      (a) Imposed in compliance with the provisions of section 46 of this act on video service providers for the privilege of doing business pursuant to chapter 711 of NRS;

      (b) Imposed pursuant to NRS 244.348, 268.0973, 268.821 or 269.182 [, or regulated] ; or

      (c) Regulated pursuant to NRS 354.59881 to 354.59889, inclusive.

      4.  A local government may submit an application to increase its revenue from fees for business licenses beyond the amount allowable pursuant to this section to the Nevada Tax Commission, which may grant the application only if it finds that the rate of a business license of the local government is substantially below that of other local governments in the State.

      5.  The provisions of this section apply to a business license regardless of the fund to which the revenue from it is assigned. An ordinance or resolution enacted by a local government in violation of the provisions of this section is void.

      6.  As used in this section, “fee for a business license” does not include a tax imposed on the revenues from the rental of transient lodging.

      Sec. 92.  NRS 360.825 is hereby amended to read as follows:

      360.825  1.  Except as otherwise provided in this section, if on or after July 1, 2003, a local government acquires from another entity a public utility that provides electric service, natural gas service, telecommunications service or community antenna television , cable television or other video service:

      (a) The local government shall make payments in lieu of and equal to all state and local taxes and franchise fees from which the local government is exempt but for which the public utility would be liable if the public utility was not owned by a governmental entity; and

      (b) The Nevada Tax Commission shall, solely for the purpose set forth in this paragraph, annually determine and apportion the assessed valuation of the property of the public utility.

 


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ê2007 Statutes of Nevada, Page 1386 (Chapter 326, AB 526)ê

 

the property of the public utility. For the purpose of calculating any allocation or apportionment of money for distribution among local governments pursuant to a formula required by state law which is based partially or entirely on the assessed valuation of taxable property:

             (1) The property of the public utility shall be deemed to constitute taxable property to the same extent as if the public utility was not owned by a governmental entity; and

             (2) To the extent that the property of the public utility is deemed to constitute taxable property pursuant to this paragraph:

                   (I) The assessed valuation of that property must be included in that calculation as determined and apportioned by the Nevada Tax Commission pursuant to this paragraph; and

                   (II) The payments required by paragraph (a) in lieu of any taxes that would otherwise be required on the basis of the assessed valuation of that property shall be deemed to constitute payments of those taxes.

      2.  The payments in lieu of taxes and franchise fees required by subsection 1 are due at the same time and must be collected, accounted for and distributed in the same manner as those taxes and franchise fees would be due, collected, accounted for and distributed if the public utility was not owned by a governmental entity, except that no lien attaches upon any property or money of the local government by virtue of any failure to make all or any part of those payments. The local government may contest the validity and amount of any payment in lieu of a tax or franchise fee to the same extent as if that payment was a payment of the tax or franchise fee itself. The payments in lieu of taxes and franchise fees must be reduced if and to the extent that such a contest is successful.

      3.  The provisions of this section do not:

      (a) Apply to the acquisition by a local government of a public utility owned by another governmental entity, except a public utility owned by another local government for which any payments in lieu of state or local taxes or franchise fees was required before its acquisition as provided in this section.

      (b) Require a local government to make any payments in lieu of taxes or franchise fees to the extent that the making of those payments would cause a deficiency in the money available to the local government to make required payments of principal of, premium, if any, or interest on any bonds or other securities issued to finance the acquisition of that public utility or to make required payments to any funds established under the proceedings under which those bonds or other securities were issued.

      (c) Require a county to duplicate any payments in lieu of taxes required pursuant to NRS 244A.755.

      Sec. 93.  NRS 360.830 is hereby amended to read as follows:

      360.830  1.  Except as otherwise provided in this section, if on or after July 1, 2003, a local government:

      (a) Acquires from another entity a public utility that provides water service or sewer service; or

      (b) Expands facilities for the provision of water service, sewer service, electric service, natural gas service, telecommunications service or community antenna television , cable television or other video service, and the expansion results in the local government serving additional retail customers who were, before the expansion, retail customers of a public utility which provided that service,

 


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ê2007 Statutes of Nevada, Page 1387 (Chapter 326, AB 526)ê

 

Ê the local government shall enter into an interlocal agreement with each affected local government to compensate the affected local government each fiscal year, as nearly as practicable, for the amount of any money from state and local taxes and franchise fees and from payments in lieu of those taxes and franchise fees, and for any compensation from a local government pursuant to this section, the affected local government would be entitled to receive but will not receive because of the acquisition of that public utility or expansion of those facilities as provided in this section.

      2.  An affected local government may waive any or all of the compensation to which it may be entitled pursuant to subsection 1.

      3.  The provisions of this section do not require a:

      (a) Local government to provide any compensation to an affected local government to the extent that the provision of that compensation would cause a deficiency in the money available to the local government to make required payments of principal of, premium, if any, or interest on any bonds or other securities issued to finance the acquisition of that public utility or expansion of those facilities, or to make required payments to any funds established under the proceedings under which those bonds or other securities were issued.

      (b) County to duplicate any compensation an affected local government receives from any payments in lieu of taxes required pursuant to NRS 244A.755.

      Sec. 94.  NRS 361.320 is hereby amended to read as follows:

      361.320  1.  At the regular session of the Nevada Tax Commission commencing on the first Monday in October of each year, the Nevada Tax Commission shall examine the reports filed pursuant to NRS 361.318 and establish the valuation for assessment purposes of any property of an interstate or intercounty nature used directly in the operation of all interstate or intercounty railroad, sleeping car, private car, natural gas transmission and distribution, water, telephone, scheduled and unscheduled air transport, electric light and power companies, and the property of all railway express companies operating on any common or contract carrier in this State. This valuation must not include the value of vehicles as defined in NRS 371.020.

      2.  Except as otherwise provided in subsections 3, 4 and 7 and NRS 361.323, the Nevada Tax Commission shall establish and fix the valuation of all physical property used directly in the operation of any such business of any such company in this State, as a collective unit. If the company is operating in more than one county, on establishing the unit valuation for the collective property, the Nevada Tax Commission shall then determine the total aggregate mileage operated within the State and within its several counties and apportion the mileage upon a mile-unit valuation basis. The number of miles apportioned to any county are subject to assessment in that county according to the mile-unit valuation established by the Nevada Tax Commission.

      3.  After establishing the valuation, as a collective unit, of a public utility which generates, transmits or distributes electricity, the Nevada Tax Commission shall segregate the value of any project in this State for the generation of electricity which is not yet put to use. This value must be assessed in the county where the project is located and must be taxed at the same rate as other property.

      4.  After establishing the valuation, as a collective unit, of an electric light and power company that places a facility into operation on or after July 1, 2003, in a county whose population is less than 100,000, the Nevada Tax Commission shall segregate the value of the facility from the collective unit.

 


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ê2007 Statutes of Nevada, Page 1388 (Chapter 326, AB 526)ê

 

July 1, 2003, in a county whose population is less than 100,000, the Nevada Tax Commission shall segregate the value of the facility from the collective unit. This value must be assessed in the county where the facility is located and taxed at the same rate as other property.

      5.  The Nevada Tax Commission shall adopt formulas and incorporate them in its records, providing the method or methods pursued in fixing and establishing the taxable value of all property assessed by it. The formulas must be adopted and may be changed from time to time upon its own motion or when made necessary by judicial decisions, but the formulas must in any event show all the elements of value considered by the Nevada Tax Commission in arriving at and fixing the value for any class of property assessed by it. These formulas must take into account, as indicators of value, the company’s income and the cost of its assets, but the taxable value may not exceed the cost of replacement as appropriately depreciated.

      6.  If two or more persons perform separate functions that collectively are needed to deliver electric service to the final customer and the property used in performing the functions would be centrally assessed if owned by one person, the Nevada Tax Commission shall establish its valuation and apportion the valuation among the several counties in the same manner as the valuation of other centrally assessed property. The Nevada Tax Commission shall determine the proportion of the tax levied upon the property by each county according to the valuation of the contribution of each person to the aggregate valuation of the property. This subsection does not apply to a qualifying facility, as defined in 18 C.F.R. § 292.101, which was constructed before July 1, 1997, or to an exempt wholesale generator, as defined in 15 U.S.C. § 79z-5a.

      7.  A company engaged in a business described in subsection 1 that does not have property of an interstate or intercounty nature must be assessed as provided in subsection 8.

      8.  All other property, including, without limitation, that of any company engaged in providing commercial mobile radio service, radio or television transmission services or cable television or other video services, must be assessed by the county assessors, except as otherwise provided in NRS 361.321 and 362.100 and except that the valuation of land and mobile homes must be established for assessment purposes by the Nevada Tax Commission as provided in NRS 361.325.

      9.  On or before November 1 of each year, the Department shall forward a tax statement to each private car line company based on the valuation established pursuant to this section and in accordance with the tax levies of the several districts in each county. The company shall remit the ad valorem taxes due on or before December 15 to the Department, which shall allocate the taxes due each county on a mile-unit basis and remit the taxes to the counties no later than January 31. The portion of the taxes which is due the State must be transmitted directly to the State Treasurer. A company which fails to pay the tax within the time required shall pay a penalty of 10 percent of the tax due or $5,000, whichever is greater, in addition to the tax. Any amount paid as a penalty must be deposited in the State General Fund. The Department may, for good cause shown, waive the payment of a penalty pursuant to this subsection. As an alternative to any other method of recovering delinquent taxes provided by this chapter, the Attorney General may bring a civil action in a court of competent jurisdiction to recover delinquent taxes due pursuant to this subsection in the manner provided in NRS 361.560.

 


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may bring a civil action in a court of competent jurisdiction to recover delinquent taxes due pursuant to this subsection in the manner provided in NRS 361.560.

      10.  For the purposes of this section, an unscheduled air transport company does not include a company that only uses three or fewer fixed-wing aircraft with a weight of less than 12,500 pounds to provide transportation services, if the company elects, in the form and manner prescribed by the Department, to have the property of the company assessed by a county assessor.

      11.  As used in this section:

      (a) “Company” means any person, company, corporation or association engaged in the business described.

      (b) “Commercial mobile radio service” has the meaning ascribed to it in 47 C.F.R. § 20.3, as that section existed on January 1, 1998.

      Sec. 95.  NRS 372.728 is hereby amended to read as follows:

      372.728  In administering the provisions of this chapter, the Department shall construe the term “retailer maintaining a place of business in this State” to include:

      1.  A retailer maintaining, occupying or using, permanently or temporarily, directly or indirectly, or through a subsidiary or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or place of storage, or any other place of business, in this State.

      2.  A retailer having any representative, agent, salesman, canvasser or solicitor operating in this State under the authority of the retailer or its subsidiary to sell, deliver or take orders for tangible personal property.

      3.  With respect to a lease, a retailer deriving rentals from a lease of tangible personal property situated in this State.

      4.  A retailer soliciting orders for tangible personal property through a system for shopping by means of telecommunication or television, using toll-free telephone numbers, which is intended by the retailer to be broadcast by cable television or other video service network or any other means of broadcasting to persons located in this State or through a website on the Internet or other electronic means of communication to provide solicitations to persons in this State.

      5.  A retailer who, pursuant to a contract with a broadcaster or publisher located in this State, solicits orders for tangible personal property by means of advertising which is disseminated primarily to persons located in this State and only secondarily to bordering jurisdictions.

      6.  A retailer soliciting orders for tangible personal property by mail or electronic facsimile if the solicitations are substantial and recurring and if the retailer benefits from any activities occurring in this State related to banking, financing, the collection of debts, telecommunication or marketing, or benefits from the location in this State of authorized facilities for installation, servicing or repairs.

      7.  A retailer owned or controlled by the same person who owns or controls a retailer who maintains a place of business in the same or a similar line of business in this State.

      8.  A retailer having a person operating under its trade name, pursuant to a franchise or license authorized by the retailer, if the person so operating is required to collect the tax pursuant to NRS 372.195.

 


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      9.  A retailer who, pursuant to a contract with the operator of a [system of] cable television system or other video service network located in this State, solicits orders for tangible personal property by means of advertising which is transmitted or distributed over a [system of] cable television system or other video service network located in this State.

      Sec. 96.  NRS 372.734 is hereby amended to read as follows:

      372.734  In administering the provisions of this chapter, the Department shall not consider the activities of persons that are directly related to the process of transmitting radio, television, cable television , video or data signals, including the transmission of news or information by video or data signal, the transmission of signals from one broadcaster to another and from a broadcaster to a member of the public and including the production and airing of any form of speech or broadcast by radio or television, whether or not compensation is provided to the broadcaster in connection therewith, to be transactions that are taxable pursuant to the provisions of this chapter.

      Sec. 97.  NRS 374.728 is hereby amended to read as follows:

      374.728  In administering the provisions of this chapter, the Department shall construe the term “retailer maintaining a place of business in a county” to include:

      1.  A retailer maintaining, occupying or using, permanently or temporarily, directly or indirectly, or through a subsidiary or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse or place of storage, or any other place of business, in the county.

      2.  A retailer having any representative, agent, salesman, canvasser or solicitor operating in the county under the authority of the retailer or its subsidiary to sell, deliver or take orders for tangible personal property.

      3.  With respect to a lease, a retailer deriving rentals from a lease of tangible personal property situated in the county.

      4.  A retailer soliciting orders for tangible personal property through a system for shopping by means of telecommunication or television, using toll-free telephone numbers, which is intended by the retailer to be broadcast by cable television or other video service network or any other means of broadcasting to persons located in the county or through a website on the Internet or other electronic means of communication to provide solicitations to persons in this State.

      5.  A retailer who, pursuant to a contract with a broadcaster or publisher located in the State, solicits orders for tangible personal property by means of advertising which is disseminated primarily to persons located in the State and only secondarily to bordering jurisdictions, and which is disseminated to persons located in the county.

      6.  A retailer soliciting orders for tangible personal property by mail or electronic facsimile if the solicitations are substantial and recurring and if the retailer benefits from any activities occurring in the county related to banking, financing, the collection of debts, telecommunication or marketing, or benefits from the location in the county of authorized facilities for installation, servicing or repairs.

      7.  A retailer owned or controlled by the same persons who own or control a retailer who maintains a place of business in the same or a similar line of business in the county.

 


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      8.  A retailer having a person operating under its trade name, pursuant to a franchise or license authorized by the retailer, if the person so operating is required to collect the tax pursuant to NRS 374.200.

      9.  A retailer who, pursuant to a contract with the operator of a [system of] cable television system or other video service network located in the State, solicits orders for tangible personal property by means of advertising which is transmitted or distributed over a [system of] cable television system or other video service network located in the county.

      Sec. 98.  NRS 374.739 is hereby amended to read as follows:

      374.739  In administering the provisions of this chapter, the Department shall not consider the activities of persons that are directly related to the process of transmitting radio, television, cable television , video or data signals, including the transmission of news or information by video or data signal, the transmission of signals from one broadcaster to another and from a broadcaster to a member of the public and including the production and airing of any form of speech or broadcast by radio or television, whether or not compensation is provided to the broadcaster in connection therewith, to be transactions that are taxable pursuant to the provisions of this chapter.

      Sec. 99.  NRS 425.393 is hereby amended to read as follows:

      425.393  1.  The Chief may request the following information to carry out the provisions of this chapter:

      (a) The records of the following public officers and state, county and local agencies:

             (1) The State Registrar of Vital Statistics;

             (2) Agencies responsible for maintaining records relating to state and local taxes and revenue;

             (3) Agencies responsible for keeping records concerning real property and personal property for which a title must be obtained;

             (4) All boards, commissions and agencies that issue occupational or professional licenses, certificates or permits;

             (5) The Secretary of State;

             (6) The Employment Security Division of the Department of Employment, Training and Rehabilitation;

             (7) Agencies that administer public assistance;

             (8) The Department of Motor Vehicles;

             (9) The Department of Public Safety;

             (10) The Department of Corrections; and

             (11) Law enforcement agencies and any other agencies that maintain records of criminal history.

      (b) The names and addresses of:

             (1) The customers of public utilities and [community antenna television companies;] video service providers; and

             (2) The employers of the customers described in subparagraph (1).

      (c) Information in the possession of financial institutions relating to the assets, liabilities and any other details of the finances of a person.

      (d) Information in the possession of a public or private employer relating to the employment, compensation and benefits of a person employed by the employer as an employee or independent contractor.

      2.  If a person or other entity fails to supply the information requested pursuant to subsection 1, the Administrator may issue a subpoena to compel the person or entity to provide that information. A person or entity who fails to comply with a request made pursuant to subsection 1 is subject to a civil penalty not to exceed $500 for each failure to comply.

 


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to comply with a request made pursuant to subsection 1 is subject to a civil penalty not to exceed $500 for each failure to comply.

      3.  A disclosure made in good faith pursuant to subsection 1 does not give rise to any action for damages for the disclosure.

      Sec. 100.  NRS 432.310 is hereby amended to read as follows:

      432.310  “Broadcaster” means a radio broadcasting station, cable operator or other video service provider or television broadcasting station primarily engaged in, and deriving income from, the business of facilitating speech via over-the-air communications, both as to pure speech and commercial speech.

      Sec. 101.  NRS 455.210 is hereby amended to read as follows:

      455.210  The provisions of NRS 455.220 and 455.230 are not applicable to:

      1.  An employee of a public utility which produces, transmits or delivers electricity, or a public utility which provides communication services, while the employee, in the course of his employment, constructs, modifies, operates or maintains:

      (a) Electrical systems;

      (b) Communication systems; or

      (c) Overhead electrical or communication circuits or conductors, or the structures supporting them.

      2.  An employee of a [cable antenna television system] video service provider operating pursuant to chapter 711 of NRS or a business which provides communication services, while the employee, acting within the scope of his employment, is making service attachments to the structure supporting an overhead line carrying high voltage, if authorized to do so by the public utility operating the overhead line.

      Sec. 102.  NRS 597.816 is hereby amended to read as follows:

      597.816  The provisions of NRS 597.814 do not prohibit the use of a device for automatic dialing and announcing by any person exclusively on behalf of:

      1.  A school or school district to contact the parents or guardians of a pupil regarding the attendance of the pupil or regarding other business of the school or school district.

      2.  A nonprofit organization.

      3.  A [company] video service provider that provides cable television or other video services to contact its customers regarding a previously arranged installation of such services at the premises of the customer.

      4.  A public utility to contact its customers regarding a previously arranged installation of utility services at the premises of the customer.

      5.  A facility that processes or stores petroleum, volatile petroleum products, natural gas, liquefied petroleum gas, combustible chemicals, explosives, high-level radioactive waste or other dangerous substances to advise local residents, public service agencies and news media of an actual or potential life-threatening emergency.

      6.  A state or local governmental agency, or a private entity operating under contract with and at the direction of such an agency, to provide:

      (a) Information relating to public safety;

      (b) Information relating to a police or fire emergency; or

      (c) A warning of an impending or threatening emergency.

 


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      7.  A candidate for public office, committee advocating the passage or defeat of a ballot question, political party, committee sponsored by a political party or a committee for political action.

      Sec. 103.  NRS 598.137 is hereby amended to read as follows:

      598.137  1.  A person shall not, in connection with the sale or lease or solicitation for sale or lease of any goods, property or service, represent that another person has a chance to receive a prize or item of value without clearly disclosing on whose behalf the contest or promotion is conducted and all conditions that a participant must meet.

      2.  A person who makes a representation described in subsection 1 must display, clearly and conspicuously, adjacent to the description of the item or prize to which it relates:

      (a) The actual retail value of each item or prize;

      (b) The number of each item or prize to be awarded; and

      (c) The odds of receiving each item or prize, expressed in whole numbers.

      3.  It is unlawful to make a representation described in subsection 1 if it has already been determined which items will be given to the person to whom the representation is made.

      4.  The provisions of this section do not apply if:

      (a) Participants are asked to complete and mail or deposit, at a local retail commercial establishment, an entry blank obtained locally or by mail, or to call in their entry by telephone; and

      (b) Participants are not asked to listen to a sales presentation.

      5.  Advertisements with representations made pursuant to subsection 1 that are broadcast by radio or television may be broadcast without the required disclosures, conditions and restrictions but must clearly broadcast the availability of such disclosures, conditions and restrictions to an interested person, without any charge, upon request.

      6.  This section does not create liability for acts of a publisher, owner, agent or employee of a newspaper, periodical, radio station, television station, cable television system or other video service network or other advertising medium for the publication or dissemination of an advertisement or promotion pursuant to this section if the publisher, owner, agent or employee did not know that the advertisement or promotion violated the provisions of this section.

      7.  For the purposes of this section, the actual retail value of an item or prize is the price at which substantial sales of the item were made in an area within the last 90 days, or if no substantial sales were made, the cost of the item or prize to the person on whose behalf the contest or promotion is conducted.

      Sec. 104.  NRS 598A.040 is hereby amended to read as follows:

      598A.040  The provisions of this chapter do not apply to:

      1.  Any labor, agricultural or horticultural organizations organized for the purpose of self-help and not for profit to itself nor to individual members thereof, while lawfully carrying out its legitimate objects.

      2.  Bona fide religious and charitable activities of any nonprofit corporation, trust or organization established exclusively for religious or charitable purposes.

      3.  Conduct which is expressly authorized, regulated or approved by:

      (a) A statute of this State or of the United States;

 


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ê2007 Statutes of Nevada, Page 1394 (Chapter 326, AB 526)ê

 

      (b) An ordinance of any city or county of this State, except for ordinances relating to [community antenna television companies;] video service providers; or

      (c) An administrative agency of this State or of the United States or of a city or county of this State, having jurisdiction of the subject matter.

      4.  Conduct or agreements relating to rates, fares, classifications, divisions, allowances or charges, including charges between carriers and compensation paid or received for the use of facilities and equipment, that are authorized, regulated or approved by the Transportation Services Authority pursuant to chapter 706 of NRS.

      5.  Restrictive covenants:

      (a) Which are part of a contract of sale for a business and which bar the seller of the business from competing with the purchaser of the business sold within a reasonable market area for a reasonable period of time; or

      (b) Which are part of a commercial shopping center lease and which bar the parties from permitting or engaging in the furnishing of certain services or the sale of certain commodities within the commercial shopping center where such leased premises are located.

      Sec. 105.  NRS 599B.010 is hereby amended to read as follows:

      599B.010  As used in this chapter, unless the context otherwise requires:

      1.  “Chance promotion” means any plan in which premiums are distributed by random or chance selection.

      2.  “Commissioner” means the Commissioner of Consumer Affairs.

      3.  “Consumer” means a person who is solicited by a seller or salesman.

      4.  “Division” means the Consumer Affairs Division of the Department of Business and Industry.

      5.  “Donation” means a promise, grant or pledge of money, credit, property, financial assistance or other thing of value given in response to a solicitation by telephone, including, but not limited to, a payment or promise to pay in consideration for a performance, event or sale of goods or services. The term does not include volunteer services, government grants or contracts or a payment by members of any organization of membership fees, dues, fines or assessments or for services rendered by the organization to those persons, if:

      (a) The fees, dues, fines, assessments or services confer a bona fide right, privilege, professional standing, honor or other direct benefit upon the member; and

      (b) Membership in the organization is not conferred solely in consideration for making a donation in response to a solicitation.

      6.  “Goods or services” means any property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value.

      7.  “Premium” includes any prize, bonus, award, gift or any other similar inducement or incentive to purchase.

      8.  “Recovery service” means a business or other practice whereby a person represents or implies that he will, for a fee, recover any amount of money that a consumer has provided to a seller or salesman pursuant to a solicitation governed by the provisions of this chapter.

      9.  “Salesman” means any person:

      (a) Employed or authorized by a seller to sell, or to attempt to sell, goods or services by telephone;

      (b) Retained by a seller to provide consulting services relating to the management or operation of the seller’s business; or

 


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ê2007 Statutes of Nevada, Page 1395 (Chapter 326, AB 526)ê

 

      (c) Who communicates on behalf of a seller with a consumer:

             (1) In the course of a solicitation by telephone; or

             (2) For the purpose of verifying, changing or confirming an order,

Ê except that a person is not a salesman if his only function is to identify a consumer by name only and he immediately refers the consumer to a salesman.

      10.  Except as otherwise provided in subsection 11, “seller” means any person who, on his own behalf, causes or attempts to cause a solicitation by telephone to be made through the use of one or more salesmen or any automated dialing announcing device under any of the following circumstances:

      (a) The person initiates contact by telephone with a consumer and represents or implies:

             (1) That a consumer who buys one or more goods or services will receive additional goods or services, whether or not of the same type as purchased, without further cost, except for actual postage or common carrier charges;

             (2) That a consumer will or has a chance or opportunity to receive a premium;

             (3) That the items for sale are gold, silver or other precious metals, diamonds, rubies, sapphires or other precious stones, or any interest in oil, gas or mineral fields, wells or exploration sites or any other investment opportunity;

             (4) That the product offered for sale is information or opinions relating to sporting events;

             (5) That the product offered for sale is the services of a recovery service; or

             (6) That the consumer will receive a premium or goods or services if he makes a donation;

      (b) The solicitation by telephone is made by the person in response to inquiries from a consumer generated by a notification or communication sent or delivered to the consumer that represents or implies:

             (1) That the consumer has been in any manner specially selected to receive the notification or communication or the offer contained in the notification or communication;

             (2) That the consumer will receive a premium if the recipient calls the person;

             (3) That if the consumer buys one or more goods or services from the person, the consumer will also receive additional or other goods or services, whether or not the same type as purchased, without further cost or at a cost that the person represents or implies is less than the regular price of the goods or services;

             (4) That the product offered for sale is the services of a recovery service; or

             (5) That the consumer will receive a premium or goods or services if he makes a donation; or

      (c) The solicitation by telephone is made by the person in response to inquiries generated by advertisements that represent or imply that the person is offering to sell any:

 


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             (1) Gold, silver or other metals, including coins, diamonds, rubies, sapphires or other stones, coal or other minerals or any interest in oil, gas or other mineral fields, wells or exploration sites, or any other investment opportunity;

             (2) Information or opinions relating to sporting events; or

             (3) Services of a recovery service.

      11.  “Seller” does not include:

      (a) A person licensed pursuant to chapter 90 of NRS when soliciting offers, sales or purchases within the scope of his license.

      (b) A person licensed pursuant to chapter 119A, 119B, 624, 645 or 696A of NRS when soliciting sales within the scope of his license.

      (c) A person licensed as an insurance broker, agent or solicitor when soliciting sales within the scope of his license.

      (d) Any solicitation of sales made by the publisher of a newspaper or magazine or by an agent of the publisher pursuant to a written agreement between the agent and publisher.

      (e) A broadcaster soliciting sales who is licensed by any state or federal authority, if the solicitation is within the scope of the broadcaster’s license.

      (f) A person who solicits a donation from a consumer when:

             (1) The person represents or implies that the consumer will receive a premium or goods or services with an aggregated fair market value of 2 percent of the donation or $50, whichever is less; or

             (2) The consumer provides a donation of $50 or less in response to the solicitation.

      (g) A charitable organization which is registered or approved to conduct a lottery pursuant to chapter 462 of NRS.

      (h) A public utility or motor carrier which is regulated pursuant to chapter 704 or 706 of NRS, or by an affiliate of such a utility or motor carrier, if the solicitation is within the scope of its certificate or license.

      (i) A utility which is regulated pursuant to chapter 710 of NRS, or by an affiliate of such a utility.

      (j) A person soliciting the sale of books, recordings, video cassettes, software for computer systems or similar items through:

             (1) An organization whose method of sales is governed by the provisions of Part 425 of Title 16 of the Code of Federal Regulations relating to the use of negative option plans by sellers in commerce;

             (2) The use of continuity plans, subscription arrangements, arrangements for standing orders, supplements, and series arrangements pursuant to which the person periodically ships merchandise to a consumer who has consented in advance to receive the merchandise on a periodic basis and has the opportunity to review the merchandise for at least 10 days and return it for a full refund within 30 days after it is received; or

             (3) An arrangement pursuant to which the person ships merchandise to a consumer who has consented in advance to receive the merchandise and has the opportunity to review the merchandise for at least 10 days and return it for a full refund within 30 days after it is received.

      (k) A person who solicits sales by periodically publishing and delivering a catalog to consumers if the catalog:

             (1) Contains a written description or illustration of each item offered for sale and the price of each item;

             (2) Includes the business address of the person;

             (3) Includes at least 24 pages of written material and illustrations;

 


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             (4) Is distributed in more than one state; and

             (5) Has an annual circulation by mailing of not less than 250,000.

      (l) A person soliciting without the intent to complete and who does not complete, the sales transaction by telephone but completes the sales transaction at a later face-to-face meeting between the solicitor and the consumer, if the person, after soliciting a sale by telephone, does not cause another person to collect the payment from or deliver any goods or services purchased to the consumer.

      (m) Any commercial bank, bank holding company, subsidiary or affiliate of a bank holding company, trust company, savings and loan association, credit union, industrial loan company, personal property broker, consumer finance lender, commercial finance lender, or insurer subject to regulation by an official or agency of this State or of the United States, if the solicitation is within the scope of the certificate or license held by the entity.

      (n) A person holding a certificate of authority issued pursuant to chapter 452 of NRS when soliciting sales within the scope of the certificate.

      (o) A person licensed pursuant to chapter 689 of NRS when soliciting sales within the scope of his license.

      (p) A person soliciting the sale of services provided by a [community antenna television company] video service provider subject to regulation pursuant to chapter 711 of NRS.

      (q) A person soliciting the sale of agricultural products, if the solicitation is not intended to and does not result in a sale of more than $100 that is to be delivered to one address. As used in this paragraph, “agricultural products” has the meaning ascribed to it in NRS 587.290.

      (r) A person who has been operating, for at least 2 years, a retail business establishment under the same name as that used in connection with the solicitation of sales by telephone if, on a continuing basis:

             (1) Goods are displayed and offered for sale or services are offered for sale and provided at the person’s business establishment; and

             (2) At least 50 percent of the person’s business involves the buyer obtaining such goods or services at the person’s business establishment.

      (s) A person soliciting only the sale of telephone answering services to be provided by the person or his employer.

      (t) A person soliciting a transaction regulated by the Commodity Futures Trading Commission, if:

             (1) The person is registered with or temporarily licensed by the Commission to conduct that activity pursuant to the Commodity Exchange Act , [(] 7 U.S.C. §§ 1 et seq. ; [);] and

             (2) The registration or license has not expired or been suspended or revoked.

      (u) A person who contracts for the maintenance or repair of goods previously purchased from the person:

             (1) Making the solicitation; or

             (2) On whose behalf the solicitation is made.

      (v) A person to whom a license to operate an information service or a nonrestricted gaming license, which is current and valid, has been issued pursuant to chapter 463 of NRS when soliciting sales within the scope of his license.

      (w) A person who solicits a previous customer of the business on whose behalf the call is made if the person making the call:

 


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ê2007 Statutes of Nevada, Page 1398 (Chapter 326, AB 526)ê

 

             (1) Does not offer the customer any premium in connection with the sale;

             (2) Is not selling an investment or an opportunity for an investment that is not registered with any state or federal authority; and

             (3) Is not regularly engaged in telephone sales.

      (x) A person who solicits the sale of livestock.

      (y) An issuer which has a class of securities that is listed on the New York Stock Exchange, the American Stock Exchange or the National Market System of the National Association of Securities Dealers Automated Quotation System.

      (z) A subsidiary of an issuer that qualifies for exemption pursuant to paragraph (y) if at least 60 percent of the voting power of the shares of the subsidiary is owned by the issuer.

      Sec. 105.1.  For the purposes of sections 105.3 to 106.2, inclusive, of this act, the Legislature hereby finds and declares that:

      1.  There is a need to balance the goal of providing children with the benefits and opportunities available on the Internet against the compelling need and duty to protect children from contact with sexual predators.

      2.  Sexual predators use Internet and network sites, including chat rooms and social networking websites, to locate, approach and befriend children, to acquire personal information about children and to prey on children by engaging in sexually explicit conversations, requesting photographs and attempting to lure children into meeting with them in person.

      3.  According to the United States Attorney General, one in five children has been approached sexually on the Internet.

      4.  The explosive growth of chat rooms and social networking websites has increased the difficulty of monitoring the Internet activities of children and protecting children from sexual predators, particularly when children use the Internet without supervision.

      5.  Providers of Internet service and the owners and operators of chat rooms and social networking websites are well-situated to help parents and guardians in the on-going effort to guard against sexual predators who misuse Internet technology as a tool to prey on and victimize children.

      Sec. 105.2.  Chapter 603 of NRS is hereby amended by adding thereto the provisions set forth as sections 105.3 to 106.2, inclusive, of this act.

      Sec. 105.3.  As used in sections 105.3 to 106.2, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 105.4 to 105.7, inclusive, of this act have the meanings ascribed to them in those sections.

      Sec. 105.4.  “Child” means a person who is less than 18 years of age.

      Sec. 105.5.  “Electronic mail” has the meaning ascribed to it in NRS 41.715.

      Sec. 105.6.  1.  “Internet or any other computer network” means:

      (a) The computer network commonly known as the Internet and any other local, regional or global computer network that is similar to or is a predecessor or successor of the Internet; and

      (b) Any identifiable site on the Internet or such other computer network.

      2.  The term includes, without limitation:

      (a) A website or other similar site on the World Wide Web;

      (b) A site that is identifiable through a Uniform Resource Location;

 


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ê2007 Statutes of Nevada, Page 1399 (Chapter 326, AB 526)ê

 

      (c) A site on a computer network that is owned, operated, administered or controlled by a provider of Internet service;

      (d) An electronic bulletin board;

      (e) A list server;

      (f) A newsgroup; or

      (g) A chat room.

      Sec. 105.7.  “Provider of Internet service” or “provider” means any person who, for a fee or other consideration, provides subscribers with access to the Internet or any other computer network.

      Sec. 105.8.  For the purposes of sections 105.3 to 106.2, inclusive, of this act, a person has “reasonable cause to believe” if, in light of all the surrounding facts and circumstances which are known or which reasonably should be known to the person at the time, a reasonable person would believe, under those facts and circumstances, that an act, transaction, event, situation or condition exists, is occurring or has occurred.

      Sec. 106.  1.  If a provider of Internet service knows or has reasonable cause to believe that a subscriber resides within this State, the provider shall make available to the subscriber a product or service which enables the subscriber to regulate a child’s use of the Internet service provided to the subscriber if such a product or service is reasonably and commercially available for the technology utilized by the subscriber to access the Internet service. The product or service must, subject to such availability, enable the subscriber to:

      (a) Block all access to the Internet;

      (b) Block access to specific websites or domains disapproved by the subscriber;

      (c) Restrict access exclusively to specific websites or domains approved by the subscriber; and

      (d) Allow the subscriber to monitor a child’s use of the Internet service by providing a report to the subscriber of the specific websites or domains that the child has visited or has attempted to visit but could not access because the websites or domains were blocked or restricted by the subscriber.

      2.  For the purposes of subsection 1, a provider of Internet service shall be deemed to know that a subscriber resides within this State if the subscriber identifies Nevada as his place of residence at the time of subscription.

      3.  If a product or service described in subsection 1 is reasonably and commercially available for the technology utilized by the subscriber to access the Internet service, the provider of Internet service:

      (a) Shall provide to the subscriber, at the time of subscription, notice of the availability of the product or service described in subsection 1. The notice must be provided to the subscriber by electronic mail or in a written form through another reasonable means.

      (b) May make the product or service described in subsection 1 available to the subscriber either directly or through a third-party vendor. The provider or third-party vendor may charge the subscriber a fee for the product or service.

      Sec. 106.2.  1.  Any violation of sections 105.3 to 106.2, inclusive, of this act constitutes a deceptive trade practice subject to NRS 598.0903 to 598.0999, inclusive.

 


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ê2007 Statutes of Nevada, Page 1400 (Chapter 326, AB 526)ê

 

      2.  The remedies, duties and prohibitions set forth in sections 105.3 to 106.2, inclusive, of this act are not exclusive and are in addition to any other remedies, duties and prohibitions provided by law.

      Sec. 106.4.  NRS 603.010 is hereby amended to read as follows:

      603.010  As used in [this chapter] NRS 603.010 to 603.090, inclusive, unless the context otherwise requires, the words and terms defined in NRS 603.020 and 603.030, have the meanings ascribed to them in those sections.

      Sec. 106.6.  NRS 603.090 is hereby amended to read as follows:

      603.090  The civil remedies provided in [this chapter:] NRS 603.010 to 603.090, inclusive:

      1.  Do not preclude the prosecution of a defendant under the penal laws of this State.

      2.  Are in addition to any rights or remedies to which the owner of a proprietary program or data stored in a computer is entitled under the common law.

      Sec. 106.8.  NRS 618.880 is hereby amended to read as follows:

      618.880  1.  The Division shall adopt regulations establishing standards and procedures for the operation of cranes, including, without limitation, regulations requiring the:

      (a) Establishment and implementation of site safety plans and procedures for the erection and dismantling of tower cranes;

      (b) Establishment of a clear zone around the erection, dismantling or other highly hazardous lifts with a crane;

      (c) Annual certification of the mechanical lifting parts of the crane; and

      (d) Certification of tower cranes each time a tower crane is erected and additional annual certifications of tower cranes while they continue to be in use.

      2.  Except as otherwise provided in subsection 3:

      (a) The Division shall adopt regulations requiring the establishment and implementation of programs for the certification of all persons who operate:

             (1) Tower cranes; or

             (2) Mobile cranes having a usable boom length of 25 feet or greater or a maximum machine rated capacity of 15,000 pounds or greater.

      (b) A person shall not operate a tower crane or a mobile crane described in subparagraph (2) of paragraph (a) unless the person holds certification as a crane operator issued pursuant to this subsection for the type of crane being operated.

      (c) An applicant for certification as a crane operator must hold a certificate which:

             (1) Is issued by an organization whose program of certification for crane operators:

                   (I) Is accredited by the National Commission for Certifying Agencies or an equivalent accrediting body approved by the Division; or

                   (II) Meets other criteria established by the Division; and

             (2) Certifies that the person has met the standards to be a crane operator established by the American Society of Mechanical Engineers in its standards B30.3, B30.4 or B30.5 as adopted by regulation of the Division.

      3.  The provisions of subsection 2 do not apply to a person who:

      (a) Is an employee of a utility while the person is engaged in work for or at the direction of the utility;

      (b) Operates an electric or utility line truck that is regulated pursuant to 29 C.F.R. § 1910.269 or 29 C.F.R. Part 1926, Subpart V; or

 


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ê2007 Statutes of Nevada, Page 1401 (Chapter 326, AB 526)ê

 

      (c) Operates an aerial or lifting device, whether or not self-propelled, that is designed and manufactured with the specific purpose of lifting one or more persons in a bucket or basket or on a ladder or platform and holding those persons in the lifted position while they perform tasks. Such devices include, without limitation:

             (1) A bucket truck or lift;

             (2) An aerial platform;

             (3) A platform lift; or

             (4) A scissors lift.

      4.  As used in this section, “utility” means any public or private utility, whether or not the utility is subject to regulation by the Public Utilities Commission of Nevada, that provides, at wholesale or retail:

      (a) Electric service;

      (b) Gas service;

      (c) Water or sewer service;

      (d) Telecommunication service, including, without limitation, local exchange service, long distance service and personal wireless service; or

      (e) Television service, including, without limitation, community antenna television , cable television and other video service.

      Sec. 107.  NRS 624.218 is hereby amended to read as follows:

      624.218  1.  The Board shall adopt by regulation a classification of licensing for persons who construct or improve [community antenna television systems.] video service networks. Except as otherwise provided in subsection 2, a person who engages in such construction, alteration or improvement must be licensed in this classification and may not be required to be licensed in any other classification.

      2.  The licensing requirements adopted pursuant to subsection 1 do not apply to a person who is engaged solely in the alteration or repair of antennae used by a community antenna television system.

      3.  As used in this section, “video service network” has the meaning ascribed to it in section 26 of this act.

      Sec. 108.  1.  NRS 318.1193, 318.1194, 354.598811, 711.185, 711.190, 711.200, 711.210, 711.230 and 711.250 are hereby repealed.

      2.  Section 2.290 of the Charter of the City of Caliente, being chapter 31, Statutes of Nevada 1971, at page 63, is hereby repealed.

      3.  Section 2.320 of the Charter of the City of Carlin, being chapter 344, Statutes of Nevada 1971, at page 612, is hereby repealed.

      4.  Section 2.280 of the Charter of Carson City, being chapter 213, Statutes of Nevada 1969, at page 300, is hereby repealed.

      5.  Section 2.350 of the Charter of the City of Elko, being chapter 276, Statutes of Nevada 1971, as amended by chapter 51, Statutes of Nevada 2001, at page 460, is hereby repealed.

      6.  Section 2.300 of the Charter of the City of Henderson, being chapter 266, Statutes of Nevada 1971, at page 410, is hereby repealed.

      7.  Section 2.330 of the Charter of the City of Las Vegas, being chapter 517, Statutes of Nevada 1983, at page 1405, is hereby repealed.

      8.  Section 2.300 of the Charter of the City of North Las Vegas, being chapter 573, Statutes of Nevada 1971, at page 1219, is hereby repealed.

      9.  Section 2.320 of the Charter of the City of Wells, being chapter 275, Statutes of Nevada 1971, at page 466, is hereby repealed.

 


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ê2007 Statutes of Nevada, Page 1402 (Chapter 326, AB 526)ê

 

      10.  Section 2.300 of the Charter of the City of Yerington, being chapter 465, Statutes of Nevada 1971, as amended by chapter 184, Statutes of Nevada 1985, at page 645, is hereby repealed.

      Sec. 109.  On or before October 1, 2007, the Secretary of State shall adopt any regulations that are necessary to carry out the provisions of this act.

      Sec. 110.  This act becomes effective upon passage and approval.

________

 

CHAPTER 327, AB 193

Assembly Bill No. 193–Committee on Judiciary

 

CHAPTER 327

 

AN ACT relating to crimes; establishing the requirements for determining whether a person is insane for purposes of the plea of not guilty by reason of insanity and for the insanity defense; authorizing a plea and verdict of guilty but mentally ill under certain circumstances; providing for annual evaluations and the discharge or conditional release of a person who is committed to the custody of the Administrator of the Division of Mental Health and Developmental Services of the Department of Health and Human Services after an acquittal by reason of insanity in certain circumstances; and providing other matters properly relating thereto.

 

[Approved: June 4, 2007]

 

Legislative Counsel’s Digest:

      In 1995, the Legislature enacted Senate Bill No. 314 which abolished the insanity defense in criminal cases and instead authorized a plea of guilty but mentally ill. In 2001, the Nevada Supreme Court interpreted the provisions of Senate Bill No. 314 and ruled that the federal and state constitutions require the State to provide to criminal defendants the option of raising an insanity defense for crimes that require an element of intent. (Finger v. State, 117 Nev. 548 (2001)) Based on this reasoning and because the Court did not believe that the Legislature would wish to preserve the plea of guilty but mentally ill under these circumstances, the Court struck Senate Bill No. 314 in its entirety and reinstated the insanity defense as it existed before Senate Bill No. 314. (Finger, 117 Nev. at 575) In response to Finger, the Legislature enacted legislation in 2003, Assembly Bill No. 156, which statutorily abolished the plea of guilty but mentally ill and reinstated the insanity defense.

      Section 4 of this bill reinstates the plea of guilty but mentally ill as an additional plea. Section 4 also provides that a defendant who pleads guilty but mentally ill bears the burden of establishing his mental illness by a preponderance of the evidence and that generally such a defendant is subject to the same penalties and procedures as a defendant who pleads guilty. (NRS 174.035)

      Section 10 of this bill authorizes the verdict of guilty but mentally ill. Specifically, section 10 authorizes a judge or jury to find a defendant guilty but mentally ill if the judge or jury finds that the defendant: (1) is guilty of the offense; (2) has established that he was mentally ill at the time the offense was committed; and (3) has not established that he was insane for purposes of the defense of insanity. Generally, a defendant who is found guilty but mentally ill is subject to the same penalties and procedures as a defendant who is found guilty.

 


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ê2007 Statutes of Nevada, Page 1403 (Chapter 327, AB 193)ê

 

      Section 17 of this bill provides the types of sentences a court may impose upon a defendant who pleads or is found guilty but mentally ill. Regardless of whether a defendant is mentally ill at the time of sentencing, the court is required to impose any sentence available to the court for a defendant who pleads or is found guilty of the same offense. However, if the defendant is mentally ill at the time of sentencing and the sentence includes a term of confinement, the court is also required, under certain circumstances, to direct the Department of Corrections to provide to the defendant such treatment as is medically indicated for his mental illness during his confinement. This bill contains many of the same provisions that were included in Senate Bill No. 314 of the 1995 Legislative Session, as well as many new sections that were included to provide for the plea and verdict of guilty but mentally ill.

      Under existing case law in Nevada, a defendant in a criminal case who asserts the insanity defense must prove that he was in a delusional state at the time of the alleged crime and due to that delusional state, he either: (1) did not understand the nature or capacity of his act; or (2) did not appreciate that his act was wrong, meaning that the act is not authorized by law. (Finger, 117 Nev. at 576) This standard for establishing insanity is commonly referred to as the “M’Naghten Rule.” The Nevada Supreme Court has recognized that the Legislature may determine that legal insanity be proven by the defendant by any one of the established standards, including by the M’Naghten Rule. (Finger, 117 Nev. at 575) Section 4 of this bill codifies the M’Naghten Rule, as stated above, as the standard for establishing insanity for purposes of the insanity defense. (NRS 174.035)

      Existing law requires a court to order a person who is acquitted by reason of insanity committed to the custody of the Administrator of the Division of Mental Health and Developmental Services of the Department of Health and Human Services if the court determines that there is clear and convincing evidence that the person is mentally ill. (NRS 175.539) Existing law provides that such a person committed to the custody of the Administrator is generally subject to the same procedures upon commitment as a person who is committed to the custody of the Administrator because he is incompetent to stand trial. (NRS 175.539, 178.400-178.460)

      Sections 30-39 of this bill establish the procedures governing the discharge or conditional release of a person who is committed to the custody of the Administrator following an acquittal by reason of insanity. Section 36 provides that such a person is eligible for discharge or conditional release from custody if he establishes by a preponderance of the evidence that he would not be a danger, as a result of any mental disorder, to himself or others. Section 37 provides that an initial hearing to determine whether a person is eligible for discharge or conditional release must be held not later than 60 days after the person has been committed to the custody of the Administrator, except in certain circumstances. Not later than 21 days before this hearing and annually thereafter, the Administrator shall prepare a report concerning the condition of the person and provide a copy of it to the person, his attorney, the prosecuting attorney and the court. The opinion of the Administrator included in the report concerning whether or not the person should be discharged or conditionally released may be challenged by either the person committed to the custody of the Administrator or the district attorney. Section 38 provides that if a person is not discharged or conditionally released from the custody of the Administrator following his initial hearing, the person may petition annually for a discharge or conditional release. Section 38 further provides that the Division may petition for a discharge or conditional release at any time if the petition is accompanied by the affidavit of a physician or licensed psychologist which states that the person’s mental condition has improved since the most recent hearing concerning the discharge or conditional release of the person.

 


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ê2007 Statutes of Nevada, Page 1404 (Chapter 327, AB 193)ê

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 169.195 is hereby amended to read as follows:

      169.195  1.  “Trial” means that portion of a criminal action which:

      (a) If a jury is used, begins with the impaneling of the jury and ends with the return of the verdict, both inclusive.

      (b) If no jury is used, begins with the opening statement, or if there is no opening statement, when the first witness is sworn, and ends with the closing argument or upon submission of the cause to the court without argument, both inclusive.

      2.  “Trial” does not include any proceeding had upon a plea of guilty or guilty but mentally ill to determine the degree of guilt or to fix the punishment.

      Sec. 2.  NRS 173.035 is hereby amended to read as follows:

      173.035  1.  An information may be filed against any person for any offense when the person:

      (a) Has had a preliminary examination as provided by law before a justice of the peace, or other examining officer or magistrate, and has been bound over to appear at the court having jurisdiction; or

      (b) Has waived his right to a preliminary examination.

      2.  If, however, upon the preliminary examination the accused has been discharged, or the affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the Attorney General when acting pursuant to a specific statute or the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of the court first had, file an information, and process must forthwith be issued thereon. The affidavit need not be filed in cases where the defendant has waived a preliminary examination, or upon a preliminary examination has been bound over to appear at the court having jurisdiction.

      3.  The information must be filed within 15 days after the holding or waiver of the preliminary examination. Each information must set forth the crime committed according to the facts.

      4.  If, with the consent of the prosecuting attorney, a defendant waives his right to a preliminary examination in accordance with an agreement by the defendant to plead guilty , guilty but mentally ill or nolo contendere to a lesser charge or to at least one , but not all, of the initial charges, the information filed against the defendant pursuant to this section may contain only the offense or offenses to which the defendant has agreed to enter a plea of guilty , guilty but mentally ill or nolo contendere. If, for any reason, the agreement is rejected by the district court or withdrawn by the defendant, the prosecuting attorney may file an amended information charging all of the offenses which were in the criminal complaint upon which the preliminary examination was waived. The defendant must then be arraigned in accordance with the amended information.

      Sec. 3.  NRS 173.125 is hereby amended to read as follows:

      173.125  The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, and a plea of guilty or guilty but mentally ill to one or more offenses charged in the indictment or information does not preclude prosecution for the other offenses.

 


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ê2007 Statutes of Nevada, Page 1405 (Chapter 327, AB 193)ê

 

guilty or guilty but mentally ill to one or more offenses charged in the indictment or information does not preclude prosecution for the other offenses.

      Sec. 4.  NRS 174.035 is hereby amended to read as follows:

      174.035  1.  A defendant may plead not guilty, guilty , guilty but mentally ill or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty [.] or guilty but mentally ill.

      2.  If a plea of guilty or guilty but mentally ill is made in a written plea agreement, the agreement must be in substantially the form prescribed in NRS 174.063. If a plea of guilty or guilty but mentally ill is made orally, the court shall not accept such a plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and consequences of the plea.

      3.  With the consent of the court and the district attorney, a defendant may enter a conditional plea of guilty , guilty but mentally ill or nolo contendere, reserving in writing the right, on appeal from the judgment, to a review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal must be allowed to withdraw the plea.

      4.  A plea of guilty but mentally ill must be entered not less than 21 days before the date set for trial. A defendant who has entered a plea of guilty but mentally ill has the burden of establishing his mental illness by a preponderance of the evidence. Except as otherwise provided by specific statute, a defendant who enters such a plea is subject to the same criminal, civil and administrative penalties and procedures as a defendant who pleads guilty.

      5.  The defendant may, in the alternative or in addition to any one of the pleas permitted by subsection 1, plead not guilty by reason of insanity. A plea of not guilty by reason of insanity must be entered not less than 21 days before the date set for trial. A defendant who has not so pleaded may offer the defense of insanity during trial upon good cause shown. Under such a plea or defense, the burden of proof is upon the defendant to establish [his insanity] by a preponderance of the evidence [.

      5.]  that:

      (a) Due to a disease or defect of the mind, he was in a delusional state at the time of the alleged offense; and

      (b) Due to the delusional state, he either did not:

             (1) Know or understand the nature and capacity of his act; or

             (2) Appreciate that his conduct was wrong, meaning not authorized by law.

      6.  If a defendant refuses to plead or if the court refuses to accept a plea of guilty or guilty but mentally ill or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.

      [6.] 7.  A defendant may not enter a plea of guilty or guilty but mentally ill pursuant to a plea bargain for an offense punishable as a felony for which:

      (a) Probation is not allowed; or

      (b) The maximum prison sentence is more than 10 years,

Ê unless the plea bargain is set forth in writing and signed by the defendant, the defendant’s attorney, if he is represented by counsel, and the prosecuting attorney.

      8.  As used in this section, a “disease or defect of the mind” does not include a disease or defect which is caused solely by voluntary intoxication.

 


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ê2007 Statutes of Nevada, Page 1406 (Chapter 327, AB 193)ê

 

      Sec. 5.  NRS 174.055 is hereby amended to read as follows:

      174.055  In [the] a justice court, if the defendant pleads guilty [,] or guilty but mentally ill, the court may, before entering such a plea or pronouncing judgment, examine witnesses to ascertain the gravity of the offense committed. If it appears to the court that a higher offense has been committed than the offense charged in the complaint, the court may order the defendant to be committed or admitted to bail or to answer any indictment that may be found against him or any information which may be filed by the district attorney.

      Sec. 6.  NRS 174.061 is hereby amended to read as follows:

      174.061  1.  If a prosecuting attorney enters into an agreement with a defendant in which the defendant agrees to testify against another defendant in exchange for a plea of guilty , guilty but mentally ill or nolo contendere to a lesser charge or for a recommendation of a reduced sentence, the agreement:

      (a) Is void if the defendant’s testimony is false.

      (b) Must be in writing and include a statement that the agreement is void if the defendant’s testimony is false.

      2.  A prosecuting attorney shall not enter into an agreement with a defendant which:

      (a) Limits the testimony of the defendant to a predetermined formula.

      (b) Is contingent on the testimony of the defendant contributing to a specified conclusion.

      Sec. 7.  NRS 174.063 is hereby amended to read as follows:

      174.063  1.  If a plea of guilty or guilty but mentally ill is made in a written plea agreement, the agreement must be substantially in the following form:

 

Case No....................................................................

Dept. No...................................................................

 

IN THE .................. JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA IN AND FOR THE COUNTY OF.............,

 

The State of Nevada ,

PLAINTIFF,

 

v.

 

(Name of defendant) ,

DEFENDANT.

 

GUILTY OR GUILTY BUT MENTALLY ILL PLEA AGREEMENT

      I hereby agree to plead guilty or guilty but mentally ill to: (List charges to which defendant is pleading guilty [),] or guilty but mentally ill), as more fully alleged in the charging document attached hereto as Exhibit 1.

      My decision to plead guilty or guilty but mentally ill is based upon the plea agreement in this case which is as follows:

      (State the terms of the agreement.)

 


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ê2007 Statutes of Nevada, Page 1407 (Chapter 327, AB 193)ê

 

CONSEQUENCES OF THE PLEA

      I understand that by pleading guilty or guilty but mentally ill I admit the facts which support all the elements of the offenses to which I now plead as set forth in Exhibit 1.

      I understand that as a consequence of my plea of guilty or guilty but mentally ill I may be imprisoned for a period of not more than (maximum term of imprisonment) and that I (may or will) be fined up to (maximum amount of fine). I understand that the law requires me to pay an administrative assessment fee.

      I understand that, if appropriate, I will be ordered to make restitution to the victim of the offenses to which I am pleading guilty or guilty but mentally ill and to the victim of any related offense which is being dismissed or not prosecuted pursuant to this agreement. I will also be ordered to reimburse the State of Nevada for expenses [related] relating to my extradition, if any.

      I understand that I (am or am not) eligible for probation for the offense to which I am pleading guilty [.] or guilty but mentally ill. (I understand that, except as otherwise provided by statute, the question of whether I receive probation is in the discretion of the sentencing judge, or I understand that I must serve a mandatory minimum term of (term of imprisonment) or pay a minimum mandatory fine of (amount of fine) or serve a mandatory minimum term (term of imprisonment) and pay a minimum mandatory fine of (amount of fine).)

      I understand that if more than one sentence of imprisonment is imposed and I am eligible to serve the sentences concurrently, the sentencing judge has the discretion to order the sentences served concurrently or consecutively.

      I understand that information regarding charges not filed, dismissed charges or charges to be dismissed pursuant to this agreement may be considered by the judge at sentencing.

      I have not been promised or guaranteed any particular sentence by anyone. I know that my sentence is to be determined by the court within the limits prescribed by statute. I understand that if my attorney or the State of Nevada or both recommend any specific punishment to the court, the court is not obligated to accept the recommendation.

      I understand that the Division of Parole and Probation of the Department of Public Safety may or will prepare a report for the sentencing judge before sentencing. This report will include matters relevant to the issue of sentencing, including my criminal history. I understand that this report may contain hearsay information regarding my background and criminal history. My attorney (if represented by counsel) and I will each have the opportunity to comment on the information contained in the report at the time of sentencing.

 

WAIVER OF RIGHTS

      By entering my plea of guilty [,] or guilty but mentally ill, I understand that I have waived the following rights and privileges:

      1.  The constitutional privilege against self-incrimination, including the right to refuse to testify at trial, in which event the prosecution would not be allowed to comment to the jury about my refusal to testify.

      2.  The constitutional right to a speedy and public trial by an impartial jury, free of excessive pretrial publicity prejudicial to the defense, at which trial I would be entitled to the assistance of an attorney, either appointed or retained.

 


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ê2007 Statutes of Nevada, Page 1408 (Chapter 327, AB 193)ê

 

trial I would be entitled to the assistance of an attorney, either appointed or retained. At trial, the State would bear the burden of proving beyond a reasonable doubt each element of the offense charged.

      3.  The constitutional right to confront and cross-examine any witnesses who would testify against me.

      4.  The constitutional right to subpoena witnesses to testify on my behalf.

      5.  The constitutional right to testify in my own defense.

      6.  The right to appeal the conviction, with the assistance of an attorney, either appointed or retained, unless the appeal is based upon reasonable constitutional, jurisdictional or other grounds that challenge the legality of the proceedings and except as otherwise provided in subsection 3 of NRS 174.035.

 

VOLUNTARINESS OF PLEA

      I have discussed the elements of all the original charges against me with my attorney (if represented by counsel) and I understand the nature of these charges against me.

      I understand that the State would have to prove each element of the charge against me at trial.

      I have discussed with my attorney (if represented by counsel) any possible defenses and circumstances which might be in my favor.

      All of the foregoing elements, consequences, rights and waiver of rights have been thoroughly explained to me by my attorney (if represented by counsel).

      I believe that pleading guilty or guilty but mentally ill and accepting this plea bargain is in my best interest and that a trial would be contrary to my best interest.

      I am signing this agreement voluntarily, after consultation with my attorney (if represented by counsel) and I am not acting under duress or coercion or by virtue of any promises of leniency, except for those set forth in this agreement.

      I am not now under the influence of intoxicating liquor, a controlled substance or other drug which would in any manner impair my ability to comprehend or understand this agreement or the proceedings surrounding my entry of this plea.

      My attorney (if represented by counsel) has answered all my questions regarding this guilty or guilty but mentally ill plea agreement and its consequences to my satisfaction and I am satisfied with the services provided by my attorney.

 

      Dated: This ............. day of the month of ………. of the year …….

 

                                                                                .........................................................

                                                                                                  Defendant.

 

Agreed to on this ............ day of the month of ………. of the year …….

 

                                                                                .........................................................

                                                                                      Deputy District Attorney.

 


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ê2007 Statutes of Nevada, Page 1409 (Chapter 327, AB 193)ê

 

      2.  If the defendant is represented by counsel, the written plea agreement must also include a certificate of counsel that is substantially in the following form:

 

CERTIFICATE OF COUNSEL

      I, the undersigned, as the attorney for the defendant named herein and as an officer of the court hereby certify that:

      1.  I have fully explained to the defendant the allegations contained in the charges to which guilty or guilty but mentally ill pleas are being entered.

      2.  I have advised the defendant of the penalties for each charge and the restitution that the defendant may be ordered to pay.

      3.  All pleas of guilty or guilty but mentally ill offered by the defendant pursuant to this agreement are consistent with all the facts known to me and are made with my advice to the defendant and are in the best interest of the defendant.

      4.  To the best of my knowledge and belief, the defendant:

      (a) Is competent and understands the charges and the consequences of pleading guilty or guilty but mentally ill as provided in this agreement.

      (b) Executed this agreement and will enter all guilty or guilty but mentally ill pleas pursuant hereto voluntarily.

      (c) Was not under the influence of intoxicating liquor, a controlled substance or other drug at the time of the execution of this agreement.

 

      Dated: This ............. day of the month of ………. of the year …….

 

                                                                                .........................................................

                                                                                       Attorney for defendant.

      Sec. 8.  NRS 174.065 is hereby amended to read as follows:

      174.065  Except as otherwise provided in NRS 174.061:

      1.  On a plea of guilty or guilty but mentally ill to an information or indictment accusing a defendant of a crime divided into degrees, when consented to by the prosecuting attorney in open court and approved by the court, the plea may specify the degree, and in such event the defendant shall not be punished for a higher degree than that specified in the plea.

      2.  On a plea of guilty or guilty but mentally ill to an indictment or information for murder of the first degree, when consented to by the prosecuting attorney in open court and approved by the court, the plea may specify a punishment less than death. The specified punishment, or any lesser punishment, may be imposed by a single judge.

      Sec. 9.  NRS 174.075 is hereby amended to read as follows:

      174.075  1.  Pleadings in criminal proceedings are the indictment, the information and, in justice court, the complaint, and the pleas of guilty, guilty but mentally ill, not guilty , not guilty by reason of insanity and nolo contendere.

      2.  All other pleas, [and] demurrers and motions to quash are abolished, and defenses and objections raised before trial which could have been raised by one or more of them may be raised only by motion to dismiss or to grant appropriate relief, as provided in this title.

 


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ê2007 Statutes of Nevada, Page 1410 (Chapter 327, AB 193)ê

 

      Sec. 10.  Chapter 175 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  During a trial, upon a plea of not guilty by reason of insanity, the trier of fact may find the defendant guilty but mentally ill if the trier of fact finds all of the following:

      (a) The defendant is guilty beyond a reasonable doubt of an offense;

      (b) The defendant has established by a preponderance of the evidence that due to a disease or defect of the mind, he was mentally ill at the time of the commission of the offense; and

      (c) The defendant has not established by a preponderance of the evidence that he is not guilty by reason of insanity pursuant to subsection 5 of NRS 174.035.

      2.  Except as otherwise provided by specific statute, a defendant who is found guilty but mentally ill is subject to the same criminal, civil and administrative penalties and procedures as a defendant who is found guilty.

      3.  As used in this section, a “disease or defect of the mind” does not include a disease or defect which is caused solely by voluntary intoxication.

      Sec. 11.  NRS 175.101 is hereby amended to read as follows:

      175.101  If by reason of absence from the judicial district, death, sickness or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of [guilt,] guilty or guilty but mentally ill, any other judge regularly sitting in or assigned to the court may perform those duties , [;] but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.

      Sec. 12.  NRS 175.282 is hereby amended to read as follows:

      175.282  If a prosecuting attorney enters into an agreement with a defendant in which the defendant agrees to testify against another defendant in exchange for a plea of guilty , guilty but mentally ill or nolo contendere to a lesser charge or for a recommendation of a reduced sentence, the court shall:

      1.  After excising any portion it deems irrelevant or prejudicial, permit the jury to inspect the agreement;

      2.  If the defendant who is testifying has not entered his plea or been sentenced pursuant to the agreement, instruct the jury regarding the possible related pressures on the defendant by providing the jury with an appropriate cautionary instruction; and

      3.  Allow the defense counsel to cross-examine fully the defendant who is testifying concerning the agreement.

      Sec. 13.  NRS 175.381 is hereby amended to read as follows:

      175.381  1.  If, at any time after the evidence on either side is closed, the court deems the evidence insufficient to warrant a conviction, it may advise the jury to acquit the defendant, but the jury is not bound by such advice.

      2.  The court may, on a motion of a defendant or on its own motion, which is made after the jury returns a verdict of guilty [,] or guilty but mentally ill, set aside the verdict and enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. The motion for a judgment of acquittal must be made within 7 days after the jury is discharged or within such further time as the court may fix during that period.

 


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ê2007 Statutes of Nevada, Page 1411 (Chapter 327, AB 193)ê

 

      3.  If a motion for a judgment of acquittal after a verdict of guilty or guilty but mentally ill pursuant to this section is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed. The court shall specify the grounds for that determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial is granted conditionally and the judgment is reversed on appeal, the new trial must proceed unless the appellate court has otherwise ordered. If the motion is denied conditionally, the defendant on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings must be in accordance with the order of the appellate court.

      Sec. 14.  NRS 175.501 is hereby amended to read as follows:

      175.501  The defendant may be found guilty or guilty but mentally ill of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.

      Sec. 14.5.  NRS 175.539 is hereby amended to read as follows:

      175.539  1.  Where on a trial a defense of insanity is interposed by the defendant and he is acquitted by reason of that defense, the finding of the jury pending the judicial determination pursuant to subsection 2 has the same effect as if he were regularly adjudged insane, and the judge must:

      (a) Order a peace officer to take the person into protective custody and transport him to a forensic facility for detention pending a hearing to determine his mental health;

      (b) Order the examination of the person by two psychiatrists, two psychologists, or one psychiatrist and one psychologist who are employed by a division facility; and

      (c) At a hearing in open court, receive the report of the examining advisers and allow counsel for the State and for the person to examine the advisers, introduce other evidence and cross-examine witnesses.

      2.  If the court finds, after the hearing:

      (a) That there is not clear and convincing evidence that the person is a mentally ill person, the court must order his discharge; or

      (b) That there is clear and convincing evidence that the person is a mentally ill person, the court must order that he be committed to the custody of the Administrator of the Division of Mental Health and Developmental Services of the Department of Health and Human Services until he is [regularly] discharged or conditionally released therefrom in accordance with [law.] sections 30 to 39, inclusive, of this act.

Ê The court shall issue its finding within 90 days after the defendant is acquitted.

      3.  The Administrator shall make the [same] reports and the court shall proceed in the [same] manner [in the case of a person committed to the custody of the Division of Mental Health and Developmental Services pursuant to this section as of a person committed because he is incompetent to stand trial pursuant to NRS 178.400 to 178.460, inclusive, except that the determination to be made by the Administrator and the district judge on the question of release is whether the person has recovered from his mental illness or has improved to such an extent that he is no longer a mentally ill person.] provided in sections 30 to 39, inclusive, of this act.

      4.  As used in this section, unless the context otherwise requires:

 


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ê2007 Statutes of Nevada, Page 1412 (Chapter 327, AB 193)ê

 

      (a) “Division facility” has the meaning ascribed to it in NRS 433.094.

      (b) “Forensic facility” means a secure facility of the Division of Mental Health and Developmental Services of the Department of Health and Human Services for mentally disordered offenders and defendants. The term includes, without limitation, Lakes Crossing Center.

      (c) “Mentally ill person” has the meaning ascribed to it in [NRS 433A.115.] section 35 of this act.

      Sec. 15.  NRS 175.547 is hereby amended to read as follows:

      175.547  1.  In any case in which a defendant pleads or is found guilty or guilty but mentally ill of murder in the first or second degree, kidnapping in the first or second degree, false imprisonment, burglary or invasion of the home, the court shall, at the request of the prosecuting attorney, conduct a separate hearing to determine whether the offense was sexually motivated. A request for such a hearing may not be submitted to the court unless the prosecuting attorney, before the commencement of the trial, files and serves upon the defendant a written notice of his intention to request such a hearing.

      2.  A hearing requested pursuant to subsection 1 must be conducted before:

      (a) The court imposes its sentence; or

      (b) A separate penalty hearing is conducted.

      3.  At the hearing, only evidence concerning the question of whether the offense was sexually motivated may be presented. The prosecuting attorney must prove beyond a reasonable doubt that the offense was sexually motivated.

      4.  The court shall enter its finding in the record.

      5.  For the purposes of this section, an offense is “sexually motivated” if one of the purposes for which the person committed the offense was his sexual gratification.

      Sec. 16.  NRS 175.552 is hereby amended to read as follows:

      175.552  1.  Except as otherwise provided in subsection 2, in every case in which there is a finding that a defendant is guilty or guilty but mentally ill of murder of the first degree, whether or not the death penalty is sought, the court shall conduct a separate penalty hearing. The separate penalty hearing must be conducted as follows:

      (a) If the finding is made by a jury, the separate penalty hearing must be conducted in the trial court before the trial jury, as soon as practicable.

      (b) If the finding is made upon a plea of guilty or guilty but mentally ill or a trial without a jury and the death penalty is sought, the separate penalty hearing must be conducted before a jury impaneled for that purpose, as soon as practicable.

      (c) If the finding is made upon a plea of guilty or guilty but mentally ill or a trial without a jury and the death penalty is not sought, the separate penalty hearing must be conducted as soon as practicable before the judge who conducted the trial or who accepted the plea . [of guilty, as soon as practicable.]

      2.  In a case in which the death penalty is not sought or in which a court has made a finding that the defendant is mentally retarded and has stricken the notice of intent to seek the death penalty pursuant to NRS 174.098, the parties may by stipulation waive the separate penalty hearing required in subsection 1. When stipulating to such a waiver, the parties may also include an agreement to have the sentence, if any, imposed by the trial judge. Any stipulation pursuant to this subsection must be in writing and signed by the defendant, his attorney, if any, and the prosecuting attorney.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1413 (Chapter 327, AB 193)ê

 

stipulation pursuant to this subsection must be in writing and signed by the defendant, his attorney, if any, and the prosecuting attorney.

      3.  During the hearing, evidence may be presented concerning aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible. Evidence may be offered to refute hearsay matters. No evidence which was secured in violation of the Constitution of the United States or the Constitution of the State of Nevada may be introduced. The State may introduce evidence of additional aggravating circumstances as set forth in NRS 200.033, other than the aggravated nature of the offense itself, only if it has been disclosed to the defendant before the commencement of the penalty hearing.

      4.  In a case in which the death penalty is not sought or in which a court has found the defendant to be mentally retarded and has stricken the notice of intent to seek the death penalty pursuant to NRS 174.098, the jury or the trial judge shall determine whether the defendant should be sentenced to life with the possibility of parole or life without the possibility of parole.

      Sec. 17.  Chapter 176 of NRS is hereby amended by adding a new section to read as follows:

      1.  If a defendant is found guilty but mentally ill pursuant to section 10 of this act or the court accepts his plea of guilty but mentally ill entered pursuant to NRS 174.035, and the court finds by a preponderance of the evidence that:

      (a) The defendant is not mentally ill at the time of sentencing, the court shall impose any sentence that the court is authorized to impose upon a defendant who pleads or is found guilty of the same offense; or

      (b) The defendant is mentally ill at the time of sentencing, the court shall:

             (1) Impose any sentence that the court is authorized to impose upon a defendant who pleads or is found guilty of the same offense; and

             (2) Include in that sentence an order that the defendant, during the period of his confinement or probation, be given or obtain such treatment as is medically indicated for his mental illness.

      2.  If the sentence of a defendant includes a period of confinement at a state correctional facility, the Department of Corrections shall separate such a person from the general population of the prison and shall not return the person to that population until a licensed psychiatrist or psychologist employed by the Department finds that the person no longer requires acute mental health care. If the person is returned to the general population, the person must continue to be given or obtain such treatment as is medically indicated for his mental illness.

      Sec. 18.  NRS 176.059 is hereby amended to read as follows:

      176.059  1.  Except as otherwise provided in subsection 2, when a defendant pleads guilty or guilty but mentally ill or is found guilty or guilty but mentally ill of a misdemeanor, including the violation of any municipal ordinance, the justice or judge shall include in the sentence the sum prescribed by the following schedule as an administrative assessment and render a judgment against the defendant for the assessment:

 

 

 

 


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ê2007 Statutes of Nevada, Page 1414 (Chapter 327, AB 193)ê

 

                    Fine                                                                                          Assessment

$5 to $49.............................................................................................. $25

50 to 59................................................................................................... 40

60 to 69................................................................................................... 45

70 to 79................................................................................................... 50

80 to 89................................................................................................... 55

90 to 99................................................................................................... 60

100 to 199.............................................................................................. 70

200 to 299.............................................................................................. 80

300 to 399.............................................................................................. 90

400 to 499............................................................................................ 100

500 to 1,000........................................................................................ 115

 

If the justice or judge sentences the defendant to perform community service in lieu of a fine, the justice or judge shall include in the sentence the amount of the administrative assessment that corresponds with the fine for which the defendant would have been responsible as prescribed by the schedule in this subsection.

      2.  The provisions of subsection 1 do not apply to:

      (a) An ordinance regulating metered parking; or

      (b) An ordinance which is specifically designated as imposing a civil penalty or liability pursuant to NRS 244.3575 or 268.019.

      3.  The money collected for an administrative assessment must not be deducted from the fine imposed by the justice or judge but must be taxed against the defendant in addition to the fine. The money collected for an administrative assessment must be stated separately on the court’s docket and must be included in the amount posted for bail. If bail is forfeited, the administrative assessment included in the amount posted for bail pursuant to this subsection must be disbursed in the manner set forth in subsection 5 or 6. If the defendant is found not guilty or the charges are dismissed, the money deposited with the court must be returned to the defendant. If the justice or judge cancels a fine because the fine has been determined to be uncollectible, any balance of the fine and the administrative assessment remaining unpaid shall be deemed to be uncollectible and the defendant is not required to pay it. If a fine is determined to be uncollectible, the defendant is not entitled to a refund of the fine or administrative assessment he has paid and the justice or judge shall not recalculate the administrative assessment.

      4.  If the justice or judge permits the fine and administrative assessment to be paid in installments, the payments must be first applied to the unpaid balance of the administrative assessment. The city treasurer shall distribute partially collected administrative assessments in accordance with the requirements of subsection 5. The county treasurer shall distribute partially collected administrative assessments in accordance with the requirements of subsection 6.

      5.  The money collected for administrative assessments in municipal court must be paid by the clerk of the court to the city treasurer on or before the fifth day of each month for the preceding month. The city treasurer shall distribute, on or before the 15th day of that month, the money received in the following amounts for each assessment received:

      (a) Two dollars to the county treasurer for credit to a special account in the county general fund for the use of the county’s juvenile court or for services to juvenile offenders. Any money remaining in the special account after 2 fiscal years must be deposited in the county general fund if it has not been committed for expenditure.

 


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ê2007 Statutes of Nevada, Page 1415 (Chapter 327, AB 193)ê

 

after 2 fiscal years must be deposited in the county general fund if it has not been committed for expenditure. The county treasurer shall provide, upon request by a juvenile court, monthly reports of the revenue credited to and expenditures made from the special account.

      (b) Seven dollars for credit to a special revenue fund for the use of the municipal courts. Any money remaining in the special revenue fund after 2 fiscal years must be deposited in the municipal general fund if it has not been committed for expenditure. The city treasurer shall provide, upon request by a municipal court, monthly reports of the revenue credited to and expenditures made from the special revenue fund.

      (c) The remainder of each assessment to the State Controller for credit to a special account in the State General Fund.

      6.  The money collected for administrative assessments in justice courts must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month. The county treasurer shall distribute, on or before the 15th day of that month, the money received in the following amounts for each assessment received:

      (a) Two dollars for credit to a special account in the county general fund for the use of the county’s juvenile court or for services to juvenile offenders. Any money remaining in the special account after 2 fiscal years must be deposited in the county general fund if it has not been committed for expenditure. The county treasurer shall provide, upon request by a juvenile court, monthly reports of the revenue credited to and expenditures made from the special account.

      (b) Seven dollars for credit to a special revenue fund for the use of the justice courts. Any money remaining in the special revenue fund after 2 fiscal years must be deposited in the county general fund if it has not been committed for expenditure. The county treasurer shall provide, upon request by a justice court, monthly reports of the revenue credited to and expenditures made from the special revenue fund.

      (c) The remainder of each assessment to the State Controller for credit to a special account in the State General Fund.

      7.  The money apportioned to a juvenile court, a justice court or a municipal court pursuant to this section must be used, in addition to providing services to juvenile offenders in the juvenile court, to improve the operations of the court, or to acquire appropriate advanced technology or the use of such technology, or both. Money used to improve the operations of the court may include expenditures for:

      (a) Training and education of personnel;

      (b) Acquisition of capital goods;

      (c) Management and operational studies; or

      (d) Audits.

      8.  Of the total amount deposited in the State General Fund pursuant to subsections 5 and 6, the State Controller shall distribute the money received to the following public agencies in the following manner:

      (a) Not less than 51 percent to the Office of Court Administrator for allocation as follows:

             (1) Eighteen and one-half percent of the amount distributed to the Office of Court Administrator for the administration of the courts.

             (2) Nine percent of the amount distributed to the Office of Court Administrator for the development of a uniform system for judicial records.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1416 (Chapter 327, AB 193)ê

 

             (3) Nine percent of the amount distributed to the Office of Court Administrator for continuing judicial education.

             (4) Sixty percent of the amount distributed to the Office of Court Administrator for the Supreme Court.

             (5) Three and one-half percent of the amount distributed to the Office of Court Administrator for the payment for the services of retired justices and retired district judges.

      (b) Not more than 49 percent must be used to the extent of legislative authorization for the support of:

             (1) The Central Repository for Nevada Records of Criminal History;

             (2) The Peace Officers’ Standards and Training Commission;

             (3) The operation by the Nevada Highway Patrol of a computerized switching system for information related to law enforcement;

             (4) The Fund for the Compensation of Victims of Crime; and

             (5) The Advisory Council for Prosecuting Attorneys.

      9.  As used in this section:

      (a) “Juvenile court” has the meaning ascribed to it in NRS 62A.180.

      (b) “Office of Court Administrator” means the Office of Court Administrator created pursuant to NRS 1.320.

      Sec. 19.  NRS 176.0611 is hereby amended to read as follows:

      176.0611  1.  A county or a city, upon recommendation of the appropriate court, may, by ordinance, authorize the justices or judges of the justice or municipal courts within its jurisdiction to impose for not longer than 50 years, in addition to the administrative assessments imposed pursuant to NRS 176.059 and 176.0613, an administrative assessment for the provision of court facilities.

      2.  Except as otherwise provided in subsection 3, in any jurisdiction in which an administrative assessment for the provision of court facilities has been authorized, when a defendant pleads guilty or guilty but mentally ill or is found guilty or guilty but mentally ill of a misdemeanor, including the violation of any municipal ordinance, the justice or judge shall include in the sentence the sum of $10 as an administrative assessment for the provision of court facilities and render a judgment against the defendant for the assessment. If the justice or judge sentences the defendant to perform community service in lieu of a fine, the justice or judge shall include in the sentence the administrative assessment required pursuant to this subsection.

      3.  The provisions of subsection 2 do not apply to:

      (a) An ordinance regulating metered parking; or

      (b) An ordinance that is specifically designated as imposing a civil penalty or liability pursuant to NRS 244.3575 or 268.019.

      4.  The money collected for an administrative assessment for the provision of court facilities must not be deducted from the fine imposed by the justice or judge but must be taxed against the defendant in addition to the fine. The money collected for such an administrative assessment must be stated separately on the court’s docket and must be included in the amount posted for bail. If bail is forfeited, the administrative assessment included in the amount posted for bail pursuant to this subsection must be disbursed in the manner set forth in subsection 6 or 7. If the defendant is found not guilty or the charges are dismissed, the money deposited with the court must be returned to the defendant. If the justice or judge cancels a fine because the fine has been determined to be uncollectible, any balance of the fine and the administrative assessment remaining unpaid shall be deemed to be uncollectible and the defendant is not required to pay it.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1417 (Chapter 327, AB 193)ê

 

uncollectible and the defendant is not required to pay it. If a fine is determined to be uncollectible, the defendant is not entitled to a refund of the fine or administrative assessment he has paid and the justice or judge shall not recalculate the administrative assessment.

      5.  If the justice or judge permits the fine and administrative assessment for the provision of court facilities to be paid in installments, the payments must be applied in the following order:

      (a) To pay the unpaid balance of an administrative assessment imposed pursuant to NRS 176.059;

      (b) To pay the unpaid balance of an administrative assessment for the provision of court facilities pursuant to this section;

      (c) To pay the unpaid balance of an administrative assessment for the provision of specialty court programs pursuant to NRS 176.0613; and

      (d) To pay the fine.

      6.  The money collected for administrative assessments for the provision of court facilities in municipal courts must be paid by the clerk of the court to the city treasurer on or before the fifth day of each month for the preceding month. The city treasurer shall deposit the money received in a special revenue fund. The city may use the money in the special revenue fund only to:

      (a) Acquire land on which to construct additional facilities for the municipal courts or a regional justice center that includes the municipal courts.

      (b) Construct or acquire additional facilities for the municipal courts or a regional justice center that includes the municipal courts.

      (c) Renovate or remodel existing facilities for the municipal courts.

      (d) Acquire furniture, fixtures and equipment necessitated by the construction or acquisition of additional facilities or the renovation of an existing facility for the municipal courts or a regional justice center that includes the municipal courts. This paragraph does not authorize the expenditure of money from the fund for furniture, fixtures or equipment for judicial chambers.

      (e) Acquire advanced technology for use in the additional or renovated facilities.

      (f) Pay debt service on any bonds issued pursuant to subsection 3 of NRS 350.020 for the acquisition of land or facilities or the construction or renovation of facilities for the municipal courts or a regional justice center that includes the municipal courts.

Ê Any money remaining in the special revenue fund after 5 fiscal years must be deposited in the municipal general fund for the continued maintenance of court facilities if it has not been committed for expenditure pursuant to a plan for the construction or acquisition of court facilities or improvements to court facilities. The city treasurer shall provide, upon request by a municipal court, monthly reports of the revenue credited to and expenditures made from the special revenue fund.

      7.  The money collected for administrative assessments for the provision of court facilities in justice courts must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month. The county treasurer shall deposit the money received to a special revenue fund. The county may use the money in the special revenue fund only to:

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1418 (Chapter 327, AB 193)ê

 

      (a) Acquire land on which to construct additional facilities for the justice courts or a regional justice center that includes the justice courts.

      (b) Construct or acquire additional facilities for the justice courts or a regional justice center that includes the justice courts.

      (c) Renovate or remodel existing facilities for the justice courts.

      (d) Acquire furniture, fixtures and equipment necessitated by the construction or acquisition of additional facilities or the renovation of an existing facility for the justice courts or a regional justice center that includes the justice courts. This paragraph does not authorize the expenditure of money from the fund for furniture, fixtures or equipment for judicial chambers.

      (e) Acquire advanced technology for use in the additional or renovated facilities.

      (f) Pay debt service on any bonds issued pursuant to subsection 3 of NRS 350.020 for the acquisition of land or facilities or the construction or renovation of facilities for the justice courts or a regional justice center that includes the justice courts.

Ê Any money remaining in the special revenue fund after 5 fiscal years must be deposited in the county general fund for the continued maintenance of court facilities if it has not been committed for expenditure pursuant to a plan for the construction or acquisition of court facilities or improvements to court facilities. The county treasurer shall provide, upon request by a justice court, monthly reports of the revenue credited to and expenditures made from the special revenue fund.

      8.  If money collected pursuant to this section is to be used to acquire land on which to construct a regional justice center, to construct a regional justice center or to pay debt service on bonds issued for these purposes, the county and the participating cities shall, by interlocal agreement, determine such issues as the size of the regional justice center, the manner in which the center will be used and the apportionment of fiscal responsibility for the center.

      Sec. 20.  NRS 176.0613 is hereby amended to read as follows:

      176.0613  1.  The justices or judges of the justice or municipal courts shall impose, in addition to an administrative assessment imposed pursuant to NRS 176.059 and 176.0611, an administrative assessment for the provision of specialty court programs.

      2.  Except as otherwise provided in subsection 3, when a defendant pleads guilty or guilty but mentally ill or is found guilty or guilty but mentally ill of a misdemeanor, including the violation of any municipal ordinance, the justice or judge shall include in the sentence the sum of $7 as an administrative assessment for the provision of specialty court programs and render a judgment against the defendant for the assessment. If a defendant is sentenced to perform community service in lieu of a fine, the sentence must include the administrative assessment required pursuant to this subsection.

      3.  The provisions of subsection 2 do not apply to:

      (a) An ordinance regulating metered parking; or

      (b) An ordinance which is specifically designated as imposing a civil penalty or liability pursuant to NRS 244.3575 or 268.019.

      4.  The money collected for an administrative assessment for the provision of specialty court programs must not be deducted from the fine imposed by the justice or judge but must be taxed against the defendant in addition to the fine.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1419 (Chapter 327, AB 193)ê

 

addition to the fine. The money collected for such an administrative assessment must be stated separately on the court’s docket and must be included in the amount posted for bail. If bail is forfeited, the administrative assessment included in the bail pursuant to this subsection must be disbursed pursuant to subsection 6 or 7. If the defendant is found not guilty or the charges are dismissed, the money deposited with the court must be returned to the defendant. If the justice or judge cancels a fine because the fine has been determined to be uncollectible, any balance of the fine and the administrative assessment remaining unpaid shall be deemed to be uncollectible and the defendant is not required to pay it. If a fine is determined to be uncollectible, the defendant is not entitled to a refund of the fine or administrative assessment he has paid and the justice or judge shall not recalculate the administrative assessment.

      5.  If the justice or judge permits the fine and administrative assessment for the provision of specialty court programs to be paid in installments, the payments must be applied in the following order:

      (a) To pay the unpaid balance of an administrative assessment imposed pursuant to NRS 176.059;

      (b) To pay the unpaid balance of an administrative assessment for the provision of court facilities pursuant to NRS 176.0611;

      (c) To pay the unpaid balance of an administrative assessment for the provision of specialty court programs; and

      (d) To pay the fine.

      6.  The money collected for an administrative assessment for the provision of specialty court programs in municipal court must be paid by the clerk of the court to the city treasurer on or before the fifth day of each month for the preceding month. On or before the 15th day of that month, the city treasurer shall deposit the money received for each administrative assessment with the State Controller for credit to a special account in the State General Fund administered by the Office of Court Administrator.

      7.  The money collected for an administrative assessment for the provision of specialty court programs in justice courts must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month. On or before the 15th day of that month, the county treasurer shall deposit the money received for each administrative assessment with the State Controller for credit to a special account in the State General Fund administered by the Office of Court Administrator.

      8.  The Office of Court Administrator shall allocate the money credited to the State General Fund pursuant to subsections 6 and 7 to courts to assist with the funding or establishment of specialty court programs.

      9.  Money that is apportioned to a court from administrative assessments for the provision of specialty court programs must be used by the court to:

      (a) Pay for the treatment and testing of persons who participate in the program; and

      (b) Improve the operations of the specialty court program by any combination of:

             (1) Acquiring necessary capital goods;

             (2) Providing for personnel to staff and oversee the specialty court program;

             (3) Providing training and education to personnel;

             (4) Studying the management and operation of the program;

             (5) Conducting audits of the program;

 


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ê2007 Statutes of Nevada, Page 1420 (Chapter 327, AB 193)ê

 

             (6) Supplementing the funds used to pay for judges to oversee a specialty court program; or

             (7) Acquiring or using appropriate technology.

      10.  As used in this section:

      (a) “Office of Court Administrator” means the Office of Court Administrator created pursuant to NRS 1.320; and

      (b) “Specialty court program” means a program established by a court to facilitate testing, treatment and oversight of certain persons over whom the court has jurisdiction and who the court has determined suffer from a mental illness or abuses alcohol or drugs. Such a program includes, without limitation, a program established pursuant to NRS 176A.250 or 453.580.

      Sec. 21.  NRS 176.062 is hereby amended to read as follows:

      176.062  1.  When a defendant pleads guilty or guilty but mentally ill or is found guilty or guilty but mentally ill of a felony or gross misdemeanor, the judge shall include in the sentence the sum of $25 as an administrative assessment and render a judgment against the defendant for the assessment.

      2.  The money collected for an administrative assessment:

      (a) Must not be deducted from any fine imposed by the judge;

      (b) Must be taxed against the defendant in addition to the fine; and

      (c) Must be stated separately on the court’s docket.

      3.  The money collected for administrative assessments in district courts must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month. The county treasurer shall distribute, on or before the 15th day of that month, the money received in the following amounts for each assessment received:

      (a) Five dollars for credit to a special account in the county general fund for the use of the district court.

      (b) The remainder of each assessment to the State Controller.

      4.  The State Controller shall credit the money received pursuant to subsection 3 to a special account for the assistance of criminal justice in the State General Fund, and distribute the money from the account to the Attorney General as authorized by the Legislature. Any amount received in excess of the amount authorized by the Legislature for distribution must remain in the account.

      Sec. 22.  NRS 176.135 is hereby amended to read as follows:

      176.135  1.  Except as otherwise provided in this section and NRS 176.151, the Division shall make a presentence investigation and report to the court on each defendant who pleads guilty , guilty but mentally ill or nolo contendere to , or is found guilty or guilty but mentally ill of , a felony.

      2.  If a defendant is convicted of a felony that is a sexual offense, the presentence investigation and report:

      (a) Must be made before the imposition of sentence or the granting of probation; and

      (b) If the sexual offense is an offense for which the suspension of sentence or the granting of probation is permitted, must include a psychosexual evaluation of the defendant.

      3.  If a defendant is convicted of a felony other than a sexual offense, the presentence investigation and report must be made before the imposition of sentence or the granting of probation unless:

      (a) A sentence is fixed by a jury; or

 


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      (b) Such an investigation and report on the defendant has been made by the Division within the 5 years immediately preceding the date initially set for sentencing on the most recent offense.

      4.  Upon request of the court, the Division shall make presentence investigations and reports on defendants who plead guilty , guilty but mentally ill or nolo contendere to , or are found guilty or guilty but mentally ill of , gross misdemeanors.

      Sec. 23.  NRS 176.151 is hereby amended to read as follows:

      176.151  1.  If a defendant pleads guilty , guilty but mentally ill or nolo contendere to , or is found guilty or guilty but mentally ill of , one or more category E felonies, but no other felonies, the Division shall not make a presentence investigation and report on the defendant pursuant to NRS 176.135, unless the Division has not made a presentence investigation and report on the defendant pursuant to NRS 176.135 within the 5 years immediately preceding the date initially set for sentencing on the category E felony or felonies and:

      (a) The court requests a presentence investigation and report; or

      (b) The prosecuting attorney possesses evidence that would support a decision by the court to deny probation to the defendant pursuant to paragraph (b) of subsection 1 of NRS 176A.100.

      2.  If the Division does not make a presentence investigation and report on a defendant pursuant to subsection 1, the Division shall, not later than 45 days after the date on which the defendant is sentenced, make a general investigation and report on the defendant that contains:

      (a) Any prior criminal record of the defendant;

      (b) Information concerning the characteristics of the defendant, the circumstances affecting his behavior and the circumstances of his offense that may be helpful to persons responsible for the supervision or correctional treatment of the defendant;

      (c) Information concerning the effect that the offense committed by the defendant has had upon the victim, including, without limitation, any physical or psychological harm or financial loss suffered by the victim, to the extent that such information is available from the victim or other sources, but the provisions of this paragraph do not require any particular examination or testing of the victim, and the extent of any investigation or examination and the extent of the information included in the report is solely at the discretion of the Division;

      (d) Data or information concerning reports and investigations thereof made pursuant to chapter 432B of NRS that relate to the defendant and are made available pursuant to NRS 432B.290; and

      (e) Any other information that the Division believes may be helpful to persons responsible for the supervision or correctional treatment of the defendant.

      Sec. 24.  NRS 176.165 is hereby amended to read as follows:

      176.165  Except as otherwise provided in this section, a motion to withdraw a plea of guilty , guilty but mentally ill or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended. To correct manifest injustice, the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

 


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ê2007 Statutes of Nevada, Page 1422 (Chapter 327, AB 193)ê

 

      Sec. 25.  NRS 176A.255 is hereby amended to read as follows:

      176A.255  1.  A justice court or a municipal court may, upon approval of the district court, transfer original jurisdiction to the district court of a case involving an eligible defendant.

      2.  As used in this section, “eligible defendant” means a person who:

      (a) Has not tendered a plea of guilty , guilty but mentally ill or nolo contendere to, or been found guilty or guilty but mentally ill of, an offense that is a misdemeanor;

      (b) Appears to suffer from mental illness or to be mentally retarded; and

      (c) Would benefit from assignment to a program established pursuant to NRS 176A.250.

      Sec. 26.  NRS 176A.260 is hereby amended to read as follows:

      176A.260  1.  Except as otherwise provided in subsection 2, if a defendant who suffers from mental illness or is mentally retarded tenders a plea of guilty , guilty but mentally ill or nolo contendere to, or is found guilty or guilty but mentally ill of, any offense for which the suspension of sentence or the granting of probation is not prohibited by statute, the court may, without entering a judgment of conviction and with the consent of the defendant, suspend further proceedings and place the defendant on probation upon terms and conditions that must include attendance and successful completion of a program established pursuant to NRS 176A.250.

      2.  If the offense committed by the defendant involved the use or threatened use of force or violence or if the defendant was previously convicted in this State or in any other jurisdiction of a felony that involved the use or threatened use of force or violence, the court may not assign the defendant to the program unless the prosecuting attorney stipulates to the assignment.

      3.  Upon violation of a term or condition:

      (a) The court may enter a judgment of conviction and proceed as provided in the section pursuant to which the defendant was charged.

      (b) Notwithstanding the provisions of paragraph (e) of subsection 2 of NRS 193.130, the court may order the defendant to the custody of the Department of Corrections if the offense is punishable by imprisonment in the state prison.

      4.  Upon fulfillment of the terms and conditions, the court shall discharge the defendant and dismiss the proceedings against him. Discharge and dismissal pursuant to this section is without adjudication of guilt and is not a conviction for purposes of this section or for purposes of employment, civil rights or any statute or regulation or license or questionnaire or for any other public or private purpose, but is a conviction for the purpose of additional penalties imposed for second or subsequent convictions or the setting of bail. Discharge and dismissal restores the defendant, in the contemplation of the law, to the status occupied before the arrest, indictment or information. The defendant may not be held thereafter under any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge that arrest, indictment, information or trial in response to an inquiry made of him for any purpose.

      Sec. 27.  NRS 177.015 is hereby amended to read as follows:

      177.015  The party aggrieved in a criminal action may appeal only as follows:

 


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ê2007 Statutes of Nevada, Page 1423 (Chapter 327, AB 193)ê

 

      1.  Whether that party is the State or the defendant:

      (a) To the district court of the county from a final judgment of the justice court.

      (b) To the Supreme Court from an order of the district court granting a motion to dismiss, a motion for acquittal or a motion in arrest of judgment, or granting or refusing a new trial.

      (c) To the Supreme Court from a determination of the district court about whether a defendant is mentally retarded that is made as a result of a hearing held pursuant to NRS 174.098. If the Supreme Court entertains the appeal, it shall enter an order staying the criminal proceedings against the defendant for such time as may be required.

      2.  The State may, upon good cause shown, appeal to the Supreme Court from a pretrial order of the district court granting or denying a motion to suppress evidence made pursuant to NRS 174.125. Notice of the appeal must be filed with the clerk of the district court within 2 judicial days and with the Clerk of the Supreme Court within 5 judicial days after the ruling by the district court. The clerk of the district court shall notify counsel for the defendant or, in the case of a defendant without counsel, the defendant within 2 judicial days after the filing of the notice of appeal. The Supreme Court may establish such procedures as it determines proper in requiring the appellant to make a preliminary showing of the propriety of the appeal and whether there may be a miscarriage of justice if the appeal is not entertained. If the Supreme Court entertains the appeal, or if it otherwise appears necessary, it may enter an order staying the trial for such time as may be required.

      3.  The defendant only may appeal from a final judgment or verdict in a criminal case.

      4.  Except as otherwise provided in subsection 3 of NRS 174.035, the defendant in a criminal case shall not appeal a final judgment or verdict resulting from a plea of guilty , guilty but mentally ill or nolo contendere that the defendant entered into voluntarily and with a full understanding of the nature of the charge and the consequences of the plea, unless the appeal is based upon reasonable constitutional, jurisdictional or other grounds that challenge the legality of the proceedings. The Supreme Court may establish procedures to require the defendant to make a preliminary showing of the propriety of the appeal.

      Sec. 28.  NRS 177.075 is hereby amended to read as follows:

      177.075  1.  Except where appeal is automatic, an appeal from a district court to the Supreme Court is taken by filing a notice of appeal with the clerk of the district court. Bills of exception and assignments of error in cases governed by this chapter are abolished.

      2.  When a court imposes sentence upon a defendant who has not pleaded guilty or guilty but mentally ill and who is without counsel, the court shall advise the defendant of his right to appeal, and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on his behalf.

      3.  A notice of appeal must be signed:

      (a) By the appellant or appellant’s attorney; or

      (b) By the clerk if prepared by him.

 


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ê2007 Statutes of Nevada, Page 1424 (Chapter 327, AB 193)ê

 

      Sec. 29.  Chapter 178 of NRS is hereby amended by adding thereto the provisions set forth as sections 30 to 39, inclusive, of this act.

      Sec. 30.  As used in sections 30 to 39, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 31 to 35, inclusive, of this act have the meanings ascribed to them in those sections.

      Sec. 31.  “Administrator” means the Administrator of the Division.

      Sec. 32.  “Division” means the Division of Mental Health and Developmental Services of the Department of Health and Human Services.

      Sec. 33.  “Division facility” has the meaning ascribed to it in NRS 433.094.

      Sec. 34.  “Mental disorder” means a mental illness that results from a psychiatric or neurological disorder that so substantially impairs the mental or emotional functioning of the person as to make care or treatment necessary or advisable for the welfare of the person or for the safety of the person or property of another and includes, without limitation, mental retardation and related conditions.

      Sec. 35.  “Mentally ill person” means a person who has a mental disorder.

      Sec. 36.  1.  The Administrator or his designee shall keep each mentally ill person committed to his custody pursuant to NRS 175.539 under observation.

      2.  A person committed to the custody of the Administrator pursuant to NRS 175.539 is eligible for:

      (a) Discharge from commitment if the person establishes by a preponderance of the evidence that he would not be a danger, as a result of any mental disorder, to himself or to the person or property of another if discharged; or

      (b) Conditional release from commitment if the person establishes by a preponderance of the evidence that he would not be a danger, as a result of any mental disorder, to himself or to the person or property of another if released from commitment with conditions imposed by the court in consultation with the Division.

      3.  If a person who is conditionally released from the custody of the Administrator fails to comply with any condition imposed by the court, the court shall issue an order to have the person recommitted to the custody of the Administrator.

      Sec. 37.  1.  Except as otherwise provided in this section, a court must hold a hearing not later than 60 days after:

      (a) A person is committed to the custody of the Administrator pursuant to NRS 175.539; or

      (b) The Division or the person committed to the custody of the Administrator files a petition for discharge or conditional release pursuant to section 38 of this act.

      2.  During the hearing held pursuant to subsection 1, the court shall consider any relevant information that will enable the court to determine whether the person is eligible for discharge or conditional release pursuant to section 36 of this act. The court may postpone the hearing described in this subsection for good cause or upon agreement by the person committed to the custody of the Administrator, the court and the Division.

      3.  Not later than 21 days before the date of the hearing held pursuant to paragraph (a) of subsection 1 and annually thereafter, the Administrator or his designee shall prepare a written report stating whether, in his opinion, upon medical consultation, the person who was committed to the custody of the Administrator has recovered from his mental disorder or has improved to such an extent that he is no longer a mentally ill person and whether or not, in his opinion, the person should be discharged or conditionally released.

 


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ê2007 Statutes of Nevada, Page 1425 (Chapter 327, AB 193)ê

 

or his designee shall prepare a written report stating whether, in his opinion, upon medical consultation, the person who was committed to the custody of the Administrator has recovered from his mental disorder or has improved to such an extent that he is no longer a mentally ill person and whether or not, in his opinion, the person should be discharged or conditionally released. If the Administrator or his designee determines that the person has not recovered from his mental disorder or has not improved to such an extent that he is no longer a mentally ill person, the Administrator or his designee shall include in the report his opinion concerning whether:

      (a) There is a substantial probability that the person may receive treatment and recover from his mental disorder or improve to such an extent that he is no longer a mentally ill person in the foreseeable future; and

      (b) The person is at that time a danger to himself or to society.

      4.  If the opinion of the Administrator included in the report prepared pursuant to subsection 3 provides that:

      (a) The person committed to his custody should not be discharged or conditionally released, the person who is committed may overcome the opinion of the Administrator by proving the elements necessary for discharge or conditional release pursuant to subsection 2 of section 36 of this act by a preponderance of the evidence.

      (b) The person committed to his custody should be discharged or conditionally released, the district attorney may overcome the opinion of the Administrator by proving by a preponderance of the evidence that the person continues to be a mentally ill person.

      5.  Within the period prescribed in subsection 3, the Administrator or his designee shall provide a copy of the report to:

      (a) The person committed to the custody of the Administrator and his attorney;

      (b) The prosecuting attorney; and

      (c) The court.

      Sec. 38.  1.  A person committed to the custody of the Administrator pursuant to NRS 175.539 may petition the court for discharge or conditional release not sooner than 1 year after the person is committed to the custody of the Administrator and not more than once each year thereafter.

      2.  The Division may file a petition for the discharge or conditional release of a person committed to the custody of the Administrator pursuant to NRS 175.539 at any time if the petition is accompanied by an affidavit of a physician or licensed psychologist which states that the mental disorder of the person has improved since the date of the most recent hearing concerning the discharge or conditional release of the person such that the physician or licensed psychologist recommends the discharge or conditional release of the person.

      3.  A person who is committed to the custody of the Administrator pursuant to NRS 175.539 may apply for discharge or conditional release pursuant to subsection 1 by:

      (a) Filing a petition for discharge or conditional release with the court that ordered the person committed pursuant to NRS 175.539; and

      (b) Providing a copy of the petition to the Division and the prosecuting attorney.

 


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ê2007 Statutes of Nevada, Page 1426 (Chapter 327, AB 193)ê

 

      4.  The Division may file a petition for discharge or conditional release pursuant to subsection 2 by:

      (a) Filing the petition with the court that ordered the person committed to the custody of the Administrator pursuant to NRS 175.539;

      (b) Including with the petition an affidavit of a physician or licensed psychologist pursuant to subsection 2; and

      (c) Providing a copy of the petition to the person committed to the custody of the Administrator, his attorney and the prosecuting attorney.

      Sec. 39.  1.  When a person is conditionally released pursuant to sections 30 to 39, inclusive, of this act:

      (a) The State and any of its agents or employees are not liable for any debts or contractual obligations, medical or otherwise, incurred or damages caused by the actions of the person; and

      (b) The court shall order the restoration of full civil and legal rights as deemed necessary to facilitate the person’s rehabilitation.

      2.  When a person is conditionally released pursuant to sections 30 to 39, inclusive, of this act, the court shall order the Division to conduct an evaluation of the person as often as is deemed necessary to determine whether the person:

      (a) Has complied with the conditions of his release; or

      (b) Presents a clear and present danger of harm to himself or others.

      3.  The court may order a person who is conditionally released pursuant to sections 30 to 39, inclusive, of this act returned to the custody of the Administrator if the court determines that the conditional release is no longer appropriate because that person:

      (a) Has violated a condition of his release; or

      (b) Presents a clear and present danger of harm to himself or others.

      Sec. 40.  NRS 178.388 is hereby amended to read as follows:

      178.388  1.  Except as otherwise provided in this title, the defendant must be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence. A corporation may appear by counsel for all purposes.

      2.  In prosecutions for offenses not punishable by death:

      (a) The defendant’s voluntary absence after the trial has been commenced in his presence must not prevent continuing the trial to and including the return of the verdict.

      (b) If the defendant was present at the trial through the time he pleads guilty or guilty but mentally ill or is found guilty or guilty but mentally ill but at the time of his sentencing is incarcerated in another jurisdiction, he may waive his right to be present at the sentencing proceedings and agree to be sentenced in this State in his absence. The defendant’s waiver is valid only if it is:

             (1) Made knowingly, intelligently and voluntarily after consulting with an attorney licensed to practice in this State;

             (2) Signed and dated by the defendant and notarized by a notary public or judicial officer; and

             (3) Signed and dated by his attorney after it has been signed by the defendant and notarized.

      3.  In prosecutions for offenses punishable by fine or by imprisonment for not more than 1 year, or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial and imposition of sentence in the defendant’s absence, if the court determines that the defendant was fully aware of his applicable constitutional rights when he gave his consent.

 


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ê2007 Statutes of Nevada, Page 1427 (Chapter 327, AB 193)ê

 

the defendant’s absence, if the court determines that the defendant was fully aware of his applicable constitutional rights when he gave his consent.

      4.  The presence of the defendant is not required at the arraignment or any preceding stage if the court has provided for the use of a closed-circuit television to facilitate communication between the court and the defendant during the proceeding. If closed-circuit television is provided for, members of the news media may observe and record the proceeding from both locations unless the court specifically provides otherwise.

      5.  The defendant’s presence is not required at the settling of jury instructions.

      Sec. 41.  NRS 178.399 is hereby amended to read as follows:

      178.399  As used in NRS [178.400] 178.399 to 178.460, inclusive, unless the context otherwise requires, “treatment to competency” means treatment provided to a defendant to attempt to cause him to attain competency to stand trial or receive pronouncement of judgment.

      Sec. 42.  NRS 179.225 is hereby amended to read as follows:

      179.225  1.  If the punishment of the crime is the confinement of the criminal in prison, the expenses must be paid from money appropriated to the Office of the Attorney General for that purpose, upon approval by the State Board of Examiners. After the appropriation is exhausted, the expenses must be paid from the Reserve for Statutory Contingency Account upon approval by the State Board of Examiners. In all other cases, they must be paid out of the county treasury in the county wherein the crime is alleged to have been committed. The expenses are:

      (a) If the prisoner is returned to this State from another state, the fees paid to the officers of the state on whose governor the requisition is made;

      (b) If the prisoner is returned to this State from a foreign country or jurisdiction, the fees paid to the officers and agents of this State or the United States; or

      (c) If the prisoner is temporarily returned for prosecution to this State from another state pursuant to this chapter or chapter 178 of NRS and is then returned to the sending state upon completion of the prosecution, the fees paid to the officers and agents of this State,

Ê and the necessary traveling expenses and subsistence allowances in the amounts authorized by NRS 281.160 incurred in returning the prisoner.

      2.  If a person is returned to this State pursuant to this chapter or chapter 178 of NRS and is convicted of, or pleads guilty , guilty but mentally ill or nolo contendere to , the criminal charge for which he was returned or a lesser criminal charge, the court shall conduct an investigation of the financial status of the person to determine his ability to make restitution. In conducting the investigation, the court shall determine if the person is able to pay any existing obligations for:

      (a) Child support;

      (b) Restitution to victims of crimes; and

      (c) Any administrative assessment required to be paid pursuant to NRS 62E.270, 176.059, 176.0611, 176.0613 and 176.062.

      3.  If the court determines that the person is financially able to pay the obligations described in subsection 2, it shall, in addition to any other sentence it may impose, order the person to make restitution for the expenses incurred by the Attorney General or other governmental entity in returning him to this State. The court shall not order the person to make restitution if payment of restitution will prevent him from paying any existing obligations described in subsection 2.

 


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ê2007 Statutes of Nevada, Page 1428 (Chapter 327, AB 193)ê

 

described in subsection 2. Any amount of restitution remaining unpaid constitutes a civil liability arising upon the date of the completion of his sentence.

      4.  The Attorney General may adopt regulations to carry out the provisions of this section.

      Sec. 43.  NRS 1.4675 is hereby amended to read as follows:

      1.4675  1.  The Commission shall suspend a justice or judge from the exercise of office with salary:

      (a) While there is pending an indictment or information charging the justice or judge with a crime punishable as a felony pursuant to the laws of the State of Nevada or the United States; or

      (b) When the justice or judge has been adjudged mentally incompetent or insane.

      2.  The Commission may suspend a justice or judge from the exercise of office without salary if the justice or judge:

      (a) Pleads guilty , guilty but mentally ill or no contest to a charge of; or

      (b) Is found guilty or guilty but mentally ill of,

Ê a crime punishable as a felony pursuant to the laws of the State of Nevada or the United States. If the conviction is later reversed, the justice or judge must be paid his salary for the period of suspension.

      3.  The Commission may suspend a justice or judge from the exercise of office with salary if the Commission determines, pending a final determination in a judicial disciplinary proceeding, that the justice or judge poses a substantial threat of serious harm to the public or to the administration of justice.

      4.  A justice or judge suspended pursuant to this section may appeal the suspension to the Supreme Court for reconsideration of the order.

      5.  The Commission may suspend a justice or judge pursuant to this section only in accordance with its procedural rules.

      Sec. 44.  NRS 33.400 is hereby amended to read as follows:

      33.400  1.  In addition to any other remedy provided by law, the parent or guardian of a child may petition any court of competent jurisdiction on behalf of the child for a temporary or extended order against a person who is 18 years of age or older and who the parent or guardian reasonably believes has committed or is committing a crime involving:

      (a) Physical or mental injury to the child of a nonaccidental nature; or

      (b) Sexual abuse or sexual exploitation of the child.

      2.  If such an order on behalf of a child is granted, the court may direct the person who allegedly committed or is committing the crime to:

      (a) Stay away from the home, school, business or place of employment of the child and any other location specifically named by the court.

      (b) Refrain from contacting, intimidating, threatening or otherwise interfering with the child and any other person specifically named by the court, who may include, without limitation, a member of the family or the household of the child.

      (c) Comply with any other restriction which the court deems necessary to protect the child or to protect any other person specifically named by the court , who may include, without limitation, a member of the family or the household of the child.

      3.  If a defendant charged with committing a crime described in subsection 1 is released from custody before trial or is found guilty or guilty but mentally ill during the trial, the court may issue a temporary or extended order or provide as a condition of the release or sentence that the defendant:

 


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ê2007 Statutes of Nevada, Page 1429 (Chapter 327, AB 193)ê

 

but mentally ill during the trial, the court may issue a temporary or extended order or provide as a condition of the release or sentence that the defendant:

      (a) Stay away from the home, school, business or place of employment of the child against whom the alleged crime was committed and any other location specifically named by the court.

      (b) Refrain from contacting, intimidating, threatening or otherwise interfering with the child against whom the alleged crime was committed and any other person specifically named by the court, who may include, without limitation, a member of the family or the household of the child.

      (c) Comply with any other restriction which the court deems necessary to protect the child or to protect any other person specifically named by the court , who may include, without limitation, a member of the family or the household of the child.

      4.  A temporary order may be granted with or without notice to the adverse party. An extended order may be granted only after:

      (a) Notice of the petition for the order and of the hearing thereon is served upon the adverse party pursuant to the Nevada Rules of Civil Procedure; and

      (b) A hearing is held on the petition.

      5.  If an extended order is issued by a justice court, an interlocutory appeal lies to the district court, which may affirm, modify or vacate the order in question. The appeal may be taken without bond, but its taking does not stay the effect or enforcement of the order.

      6.  Unless a more severe penalty is prescribed by law for the act that constitutes the violation of the order, any person who intentionally violates:

      (a) A temporary order is guilty of a gross misdemeanor.

      (b) An extended order is guilty of a category C felony and shall be punished as provided in NRS 193.130.

      7.  Any court order issued pursuant to this section must:

      (a) Be in writing;

      (b) Be personally served on the person to whom it is directed; and

      (c) Contain the warning that violation of the order:

             (1) Subjects the person to immediate arrest.

             (2) Is a gross misdemeanor if the order is a temporary order.

             (3) Is a category C felony if the order is an extended order.

      Sec. 45.  NRS 33.440 is hereby amended to read as follows:

      33.440  1.  Upon the request of the parent or guardian of a child, the prosecuting attorney in any trial brought against a person for a crime described in subsection 1 of NRS 33.400 shall inform the parent or guardian of the final disposition of the case.

      2.  If the defendant is found guilty or guilty but mentally ill and the court issues an order or provides a condition of his sentence restricting the ability of the defendant to have contact with the child against whom the crime was committed or witnesses, the clerk of the court shall:

      (a) Keep a record of the order or condition of the sentence; and

      (b) Provide a certified copy of the order or condition of the sentence to the parent or guardian of the child and other persons named in the order.

      Sec. 46.  NRS 34.735 is hereby amended to read as follows:

      34.735  A petition must be in substantially the following form, with appropriate modifications if the petition is filed in the Supreme Court:

 


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ê2007 Statutes of Nevada, Page 1430 (Chapter 327, AB 193)ê

 

Case No........................

Dept. No.......................

 

IN THE .................. JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA IN AND FOR THE COUNTY OF ................

 

...................................................................

                       Petitioner,

 

                              v.                                                               PETITION FOR WRIT

                                                                                                OF HABEAS CORPUS

                                                                                                  (POSTCONVICTION)

...................................................................

                     Respondent.

 

INSTRUCTIONS:

      (1) This petition must be legibly handwritten or typewritten, signed by the petitioner and verified.

      (2) Additional pages are not permitted except where noted or with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum.

      (3) If you want an attorney appointed, you must complete the Affidavit in Support of Request to Proceed in Forma Pauperis. You must have an authorized officer at the prison complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution.

      (4) You must name as respondent the person by whom you are confined or restrained. If you are in a specific institution of the Department of Corrections, name the warden or head of the institution. If you are not in a specific institution of the Department but within its custody, name the Director of the Department of Corrections.

      (5) You must include all grounds or claims for relief which you may have regarding your conviction or sentence. Failure to raise all grounds in this petition may preclude you from filing future petitions challenging your conviction and sentence.

      (6) You must allege specific facts supporting the claims in the petition you file seeking relief from any conviction or sentence. Failure to allege specific facts rather than just conclusions may cause your petition to be dismissed. If your petition contains a claim of ineffective assistance of counsel, that claim will operate to waive the attorney-client privilege for the proceeding in which you claim your counsel was ineffective.

      (7) When the petition is fully completed, the original and one copy must be filed with the clerk of the state district court for the county in which you were convicted. One copy must be mailed to the respondent, one copy to the Attorney General’s Office, and one copy to the district attorney of the county in which you were convicted or to the original prosecutor if you are challenging your original conviction or sentence. Copies must conform in all particulars to the original submitted for filing.

 


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ê2007 Statutes of Nevada, Page 1431 (Chapter 327, AB 193)ê

 

PETITION

 

      1.  Name of institution and county in which you are presently imprisoned or where and how you are presently restrained of your liberty:      

.........................................................................................................................................

      2.  Name and location of court which entered the judgment of conviction under attack:

.........................................................................................................................................

      3.  Date of judgment of conviction: ..................................................................

      4.  Case number: ...................................................................................................

      5.  (a) Length of sentence: ..................................................................................

.........................................................................................................................................

      (b) If sentence is death, state any date upon which execution is scheduled:     

      6.  Are you presently serving a sentence for a conviction other than the conviction under attack in this motion? Yes ........ No ........

If “yes,” list crime, case number and sentence being served at this time: ........

.........................................................................................................................................

.........................................................................................................................................

      7.  Nature of offense involved in conviction being challenged: ...................

.........................................................................................................................................

      8.  What was your plea? (check one)

      (a) Not guilty ........

      (b) Guilty ........

      (c) Guilty but mentally ill ......

      (d) Nolo contendere ........

      9.  If you entered a plea of guilty or guilty but mentally ill to one count of an indictment or information, and a plea of not guilty to another count of an indictment or information, or if a plea of guilty or guilty but mentally ill was negotiated, give details:   

.........................................................................................................................................

.........................................................................................................................................

      10.  If you were found guilty or guilty but mentally ill after a plea of not guilty, was the finding made by: (check one)

      (a) Jury ........

      (b) Judge without a jury ........

      11.  Did you testify at the trial? Yes ........ No ........

      12.  Did you appeal from the judgment of conviction? Yes ........ No ........

      13.  If you did appeal, answer the following:

      (a) Name of court: ................................................................................................

      (b) Case number or citation: ...............................................................................

      (c) Result: ...............................................................................................................

      (d) Date of result: ..................................................................................................

      (Attach copy of order or decision, if available.)

      14.  If you did not appeal, explain briefly why you did not: ........................

.........................................................................................................................................

.........................................................................................................................................

 


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ê2007 Statutes of Nevada, Page 1432 (Chapter 327, AB 193)ê

 

      15.  Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications or motions with respect to this judgment in any court, state or federal? Yes ........ No ........

      16.  If your answer to No. 15 was “yes,” give the following information:

      (a) (1) Name of court: .........................................................................................

             (2) Nature of proceeding: ..............................................................................

.........................................................................................................................................

             (3) Grounds raised: .........................................................................................

.........................................................................................................................................

.........................................................................................................................................

            (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes ........ No ........

             (5) Result: ........................................................................................................

             (6) Date of result: ...........................................................................................

            (7) If known, citations of any written opinion or date of orders entered pursuant to such result:

.........................................................................................................................................

      (b) As to any second petition, application or motion, give the same information:

             (1) Name of court: .........................................................................................

             (2) Nature of proceeding: ..............................................................................

             (3) Grounds raised: .........................................................................................

             (4) Did you receive an evidentiary hearing on your petition, application or motion? Yes ........ No ........

             (5) Result: ........................................................................................................

             (6) Date of result: ...........................................................................................

             (7) If known, citations of any written opinion or date of orders entered pursuant to such result:

.........................................................................................................................................

      (c) As to any third or subsequent additional applications or motions, give the same information as above, list them on a separate sheet and attach.

      (d) Did you appeal to the highest state or federal court having jurisdiction, the result or action taken on any petition, application or motion?

             (1) First petition, application or motion? Yes ........ No ........

Citation or date of decision: .....................................................................................

             (2) Second petition, application or motion? Yes ........ No .........

Citation or date of decision: .....................................................................................

             (3) Third or subsequent petitions, applications or motions? Yes ........ No ........

Citation or date of decision: .....................................................................................

      (e) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not. (You must relate specific facts in response to this question. Your response may be included on paper which is 8 1/2 by 11 inches attached to the petition. Your response may not exceed five handwritten or typewritten pages in length.)      

.........................................................................................................................................

.........................................................................................................................................

      17.  Has any ground being raised in this petition been previously presented to this or any other court by way of petition for habeas corpus, motion, application or any other postconviction proceeding? If so, identify:

 


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ê2007 Statutes of Nevada, Page 1433 (Chapter 327, AB 193)ê

 

      (a) Which of the grounds is the same: ..............................................................

.........................................................................................................................................

      (b) The proceedings in which these grounds were raised: ..............................

.........................................................................................................................................

      (c) Briefly explain why you are again raising these grounds. (You must relate specific facts in response to this question. Your response may be included on paper which is 8 1/2 by 11 inches attached to the petition. Your response may not exceed five handwritten or typewritten pages in length.) .....................................................................................

.........................................................................................................................................

      18.  If any of the grounds listed in Nos. 23(a), (b), (c) and (d), or listed on any additional pages you have attached, were not previously presented in any other court, state or federal, list briefly what grounds were not so presented, and give your reasons for not presenting them. (You must relate specific facts in response to this question. Your response may be included on paper which is 8 1/2 by 11 inches attached to the petition. Your response may not exceed five handwritten or typewritten pages in length.)

.........................................................................................................................................

      19.  Are you filing this petition more than 1 year following the filing of the judgment of conviction or the filing of a decision on direct appeal? If so, state briefly the reasons for the delay. (You must relate specific facts in response to this question. Your response may be included on paper which is 8 1/2 by 11 inches attached to the petition. Your response may not exceed five handwritten or typewritten pages in length.) ...........................................................................................................

.........................................................................................................................................

      20.  Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes ........ No ........

If yes, state what court and the case number: ......................................................

.........................................................................................................................................

      21.  Give the name of each attorney who represented you in the proceeding resulting in your conviction and on direct appeal:   

.........................................................................................................................................

      22.  Do you have any future sentences to serve after you complete the sentence imposed by the judgment under attack? Yes ........ No ........

If yes, specify where and when it is to be served, if you know: .........................

.........................................................................................................................................

      23.  State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary you may attach pages stating additional grounds and facts supporting same.

      (a) Ground one: .....................................................................................................

.........................................................................................................................................

Supporting FACTS (Tell your story briefly without citing cases or law.): .........

.........................................................................................................................................

.........................................................................................................................................

      (b) Ground two: .....................................................................................................

.........................................................................................................................................

Supporting FACTS (Tell your story briefly without citing cases or law.): .........

.........................................................................................................................................

.........................................................................................................................................

 


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ê2007 Statutes of Nevada, Page 1434 (Chapter 327, AB 193)ê

 

      (c) Ground three: ...................................................................................................

.........................................................................................................................................

Supporting FACTS (Tell your story briefly without citing cases or law.): .........

.........................................................................................................................................

.........................................................................................................................................

      (d) Ground four: ....................................................................................................

.........................................................................................................................................

Supporting FACTS (Tell your story briefly without citing cases or law.): .........

.........................................................................................................................................

.........................................................................................................................................

      WHEREFORE, petitioner prays that the court grant petitioner relief to which he may be entitled in this proceeding.

      EXECUTED at ................... on the ....... day of the month of ....... of the year .......

 

                                                                                        .................................................

                                                                                            Signature of petitioner

                                                                                        .................................................

                                                                                                         Address

 

...................................................................

      Signature of attorney (if any)

...................................................................

            Attorney for petitioner

...................................................................

                         Address

 

VERIFICATION

 

      Under penalty of perjury, the undersigned declares that he is the petitioner named in the foregoing petition and knows the contents thereof; that the pleading is true of his own knowledge, except as to those matters stated on information and belief, and as to such matters he believes them to be true.

 

                                                                                        .................................................

                                                                                                        Petitioner

                                                                                        .................................................

                                                                                            Attorney for petitioner

 

CERTIFICATE OF SERVICE BY MAIL

 

      I, ................................, hereby certify , pursuant to N.R.C.P. 5(b), that on this ........ day of the month of ........ of the year ........, I mailed a true and correct copy of the foregoing PETITION FOR WRIT OF HABEAS CORPUS addressed to:

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1435 (Chapter 327, AB 193)ê

 

                                                        .................................................................................

                                                                   Respondent prison or jail official

                                                        .................................................................................

                                                                                         Address

                                                        .................................................................................

                                                        Attorney General

                                                        Heroes’ Memorial Building

                                                        Capitol Complex

                                                        Carson City, Nevada 89710

 

                                                        .................................................................................

                                                          District Attorney of County of Conviction

                                                        .................................................................................

                                                                                         Address

 

                                                                                        .................................................

                                                                                            Signature of Petitioner

      Sec. 47.  NRS 34.810 is hereby amended to read as follows:

      34.810  1.  The court shall dismiss a petition if the court determines that:

      (a) The petitioner’s conviction was upon a plea of guilty or guilty but mentally ill and the petition is not based upon an allegation that the plea was involuntarily or unknowingly entered or that the plea was entered without effective assistance of counsel.

      (b) The petitioner’s conviction was the result of a trial and the grounds for the petition could have been:

             (1) Presented to the trial court;

             (2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or postconviction relief; or

             (3) Raised in any other proceeding that the petitioner has taken to secure relief from his conviction and sentence,

Ê unless the court finds both cause for the failure to present the grounds and actual prejudice to the petitioner.

      2.  A second or successive petition must be dismissed if the judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

      3.  Pursuant to subsections 1 and 2, the petitioner has the burden of pleading and proving specific facts that demonstrate:

      (a) Good cause for the petitioner’s failure to present the claim or for presenting the claim again; and

      (b) Actual prejudice to the petitioner.

Ê The petitioner shall include in the petition all prior proceedings in which he challenged the same conviction or sentence.

      4.  The court may dismiss a petition that fails to include any prior proceedings of which the court has knowledge through the record of the court or through the pleadings submitted by the respondent.

 


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ê2007 Statutes of Nevada, Page 1436 (Chapter 327, AB 193)ê

 

      Sec. 48.  NRS 41B.070 is hereby amended to read as follows:

      41B.070  “Convicted” and “conviction” mean a judgment based upon:

      1.  A plea of guilty , guilty but mentally ill or nolo contendere;

      2.  A finding of [guilt] guilty or guilty but mentally ill by a jury or a court sitting without a jury;

      3.  An adjudication of delinquency or finding of [guilt] guilty or guilty but mentally ill by a court having jurisdiction over juveniles; or

      4.  Any other admission or finding of [guilt] guilty or guilty but mentally ill in a criminal action or a proceeding in a court having jurisdiction over juveniles.

      Sec. 49.  NRS 48.125 is hereby amended to read as follows:

      48.125  1.  Evidence of a plea of guilty [,] or guilty but mentally ill, later withdrawn, or of an offer to plead guilty or guilty but mentally ill to the crime charged or any other crime is not admissible in a criminal proceeding involving the person who made the plea or offer.

      2.  Evidence of a plea of nolo contendere or of an offer to plead nolo contendere to the crime charged or any other crime is not admissible in a civil or criminal proceeding involving the person who made the plea or offer.

      Sec. 50.  NRS 50.068 is hereby amended to read as follows:

      50.068  1.  A defendant is not incompetent to be a witness solely by reason of the fact that he enters into an agreement with the prosecuting attorney in which he agrees to testify against another defendant in exchange for a plea of guilty , guilty but mentally ill or nolo contendere to a lesser charge or for a recommendation of a reduced sentence.

      2.  The testimony of the defendant who is testifying may be admitted whether or not he has entered his plea or been sentenced pursuant to the agreement with the prosecuting attorney.

      Sec. 51.  NRS 51.295 is hereby amended to read as follows:

      51.295  1.  Evidence of a final judgment, entered after trial or upon a plea of guilty [,] or guilty but mentally ill, but not upon a plea of nolo contendere, adjudging a person guilty of a crime punishable by death or imprisonment in excess of 1 year [,] is not inadmissible under the hearsay rule to prove any fact essential to sustain the judgment.

      2.  This section does not make admissible, when offered by the State in a criminal prosecution for purposes other than impeachment, a judgment against a person other than the accused.

      3.  The pendency of an appeal may be shown but does not affect admissibility.

      Sec. 52.  NRS 200.485 is hereby amended to read as follows:

      200.485  1.  Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018:

      (a) For the first offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

             (1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not more than 6 months; and

             (2) Perform not less than 48 hours, but not more than 120 hours, of community service.

Ê The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive hours and must occur at a time when the person is not required to be at his place of employment or on a weekend.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1437 (Chapter 327, AB 193)ê

 

than 4 consecutive hours and must occur at a time when the person is not required to be at his place of employment or on a weekend.

      (b) For the second offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

             (1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not more than 6 months; and

             (2) Perform not less than 100 hours, but not more than 200 hours, of community service.

Ê The person shall be further punished by a fine of not less than $500, but not more than $1,000.

      (c) For the third and any subsequent offense within 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130.

      2.  In addition to any other penalty, if a person is convicted of a battery which constitutes domestic violence pursuant to NRS 33.018, the court shall:

      (a) Except as otherwise provided in this subsection, for the first offense within 7 years, require him to participate in weekly counseling sessions of not less than 1 1/2 hours per week for not less than 6 months, but not more than 12 months, at his expense, in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

      (b) Except as otherwise provided in this subsection, for the second offense within 7 years, require him to participate in weekly counseling sessions of not less than 1 1/2 hours per week for 12 months, at his expense, in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

Ê If the person resides more than 70 miles from the nearest location at which counseling services are available, the court may allow the person to participate in counseling sessions in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470 every other week for the number of months required pursuant to paragraph (a) or (b) so long as the number of hours of counseling is not less than 6 hours per month. If the person resides in this State but the nearest location at which counseling services are available is in another state, the court may allow the person to participate in counseling in the other state in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

      3.  An offense that occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.

      4.  In addition to any other fine or penalty, the court shall order such a person to pay an administrative assessment of $35. Any money so collected must be paid by the clerk of the court to the State Controller on or before the fifth day of each month for the preceding month for credit to the Account for Programs Related to Domestic Violence established pursuant to NRS 228.460.

      5.  In addition to any other penalty, the court may require such a person to participate, at his expense, in a program of treatment for the abuse of alcohol or drugs that has been certified by the Health Division of the Department of Health and Human Services.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1438 (Chapter 327, AB 193)ê

 

alcohol or drugs that has been certified by the Health Division of the Department of Health and Human Services.

      6.  If it appears from information presented to the court that a child under the age of 18 years may need counseling as a result of the commission of a battery which constitutes domestic violence pursuant to NRS 33.018, the court may refer the child to an agency which provides child welfare services. If the court refers a child to an agency which provides child welfare services, the court shall require the person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018 to reimburse the agency for the costs of any services provided, to the extent of his ability to pay.

      7.  If a person is charged with committing a battery which constitutes domestic violence pursuant to NRS 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty , guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless he knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial. A court shall not grant probation to and, except as otherwise provided in NRS 4.373 and 5.055, a court shall not suspend the sentence of such a person.

      8.  As used in this section:

      (a) “Agency which provides child welfare services” has the meaning ascribed to it in NRS 432B.030.

      (b) “Battery” has the meaning ascribed to it in paragraph (a) of subsection 1 of NRS 200.481.

      (c) “Offense” includes a battery which constitutes domestic violence pursuant to NRS 33.018 or a violation of the law of any other jurisdiction that prohibits the same or similar conduct.

      Sec. 53.  NRS 200.485 is hereby amended to read as follows:

      200.485  1.  Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018:

      (a) For the first offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

             (1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not more than 6 months; and

             (2) Perform not less than 48 hours, but not more than 120 hours, of community service.

Ê The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive hours and must occur at a time when the person is not required to be at his place of employment or on a weekend.

      (b) For the second offense within 7 years, is guilty of a misdemeanor and shall be sentenced to:

             (1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not more than 6 months; and

             (2) Perform not less than 100 hours, but not more than 200 hours, of community service.

Ê The person shall be further punished by a fine of not less than $500, but not more than $1,000.

      (c) For the third and any subsequent offense within 7 years, is guilty of a category C felony and shall be punished as provided in NRS 193.130.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1439 (Chapter 327, AB 193)ê

 

      2.  In addition to any other penalty, if a person is convicted of a battery which constitutes domestic violence pursuant to NRS 33.018, the court shall:

      (a) For the first offense within 7 years, require him to participate in weekly counseling sessions of not less than 1 1/2 hours per week for not less than 6 months, but not more than 12 months, at his expense, in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

      (b) For the second offense within 7 years, require him to participate in weekly counseling sessions of not less than 1 1/2 hours per week for 12 months, at his expense, in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

Ê If the person resides in this State but the nearest location at which counseling services are available is in another state, the court may allow the person to participate in counseling in the other state in a program for the treatment of persons who commit domestic violence that has been certified pursuant to NRS 228.470.

      3.  An offense that occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.

      4.  In addition to any other fine or penalty, the court shall order such a person to pay an administrative assessment of $35. Any money so collected must be paid by the clerk of the court to the State Controller on or before the fifth day of each month for the preceding month for credit to the Account for Programs Related to Domestic Violence established pursuant to NRS 228.460.

      5.  In addition to any other penalty, the court may require such a person to participate, at his expense, in a program of treatment for the abuse of alcohol or drugs that has been certified by the Health Division of the Department of Health and Human Services.

      6.  If it appears from information presented to the court that a child under the age of 18 years may need counseling as a result of the commission of a battery which constitutes domestic violence pursuant to NRS 33.018, the court may refer the child to an agency which provides child welfare services. If the court refers a child to an agency which provides child welfare services, the court shall require the person convicted of a battery which constitutes domestic violence pursuant to NRS 33.018 to reimburse the agency for the costs of any services provided, to the extent of his ability to pay.

      7.  If a person is charged with committing a battery which constitutes domestic violence pursuant to NRS 33.018, a prosecuting attorney shall not dismiss such a charge in exchange for a plea of guilty , guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless he knows, or it is obvious, that the charge is not supported by probable cause or cannot be proved at the time of trial. A court shall not grant probation to and, except as otherwise provided in NRS 4.373 and 5.055, a court shall not suspend the sentence of such a person.

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1440 (Chapter 327, AB 193)ê

 

      8.  As used in this section:

      (a) “Agency which provides child welfare services” has the meaning ascribed to it in NRS 432B.030.

      (b) “Battery” has the meaning ascribed to it in paragraph (a) of subsection 1 of NRS 200.481.

      (c) “Offense” includes a battery which constitutes domestic violence pursuant to NRS 33.018 or a violation of the law of any other jurisdiction that prohibits the same or similar conduct.

      Sec. 54.  NRS 202.270 is hereby amended to read as follows:

      202.270  1.  A person who destroys, or attempts to destroy, with dynamite, nitroglycerine, gunpowder or other high explosive, any dwelling house or other building, knowing or having reason to believe that a human being is therein at the time, is guilty of a category A felony and shall be punished by imprisonment in the state prison:

      (a) For life without the possibility of parole;

      (b) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

      (c) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served,

Ê in the discretion of the jury, or of the court upon a plea of guilty [.] or guilty but mentally ill.

      2.  A person who conspires with others to commit the offense described in subsection 1 shall be punished in the same manner.

      Sec. 55.  NRS 202.885 is hereby amended to read as follows:

      202.885  1.  A person may not be prosecuted or convicted pursuant to NRS 202.882 unless a court in this State or any other jurisdiction has entered a judgment of conviction against a culpable actor for:

      (a) The violent or sexual offense against the child; or

      (b) Any other offense arising out of the same facts as the violent or sexual offense against the child.

      2.  For any violation of NRS 202.882, an indictment must be found or an information or complaint must be filed within 1 year after the date on which:

      (a) A court in this State or any other jurisdiction has entered a judgment of conviction against a culpable actor as provided in subsection 1; or

      (b) The violation is discovered,

Ê whichever occurs later.

      3.  For the purposes of this section:

      (a) A court in “any other jurisdiction” includes, without limitation, a tribal court or a court of the United States or the Armed Forces of the United States.

      (b) “Convicted” and “conviction” mean a judgment based upon:

             (1) A plea of guilty , guilty but mentally ill or nolo contendere;

             (2) A finding of [guilt] guilty or guilty but mentally ill by a jury or a court sitting without a jury;

             (3) An adjudication of delinquency or finding of [guilt] guilty or guilty but mentally ill by a court having jurisdiction over juveniles; or

             (4) Any other admission or finding of [guilt] guilty or guilty but mentally ill in a criminal action or a proceeding in a court having jurisdiction over juveniles.

      (c) A court “enters” a judgment of conviction against a person on the date on which guilt is admitted, adjudicated or found, whether or not:

 


…………………………………………………………………………………………………………………

ê2007 Statutes of Nevada, Page 1441 (Chapter 327, AB 193)ê

 

             (1) The court has imposed a sentence, a penalty or other sanction for the conviction; or

             (2) The person has exercised any right to appeal the conviction.

      (d) “Culpable actor” means a person who:

             (1) Causes or perpetrates an unlawful act;

             (2) Aids, abets, commands, counsels, encourages, hires, induces, procures or solicits another person to cause or perpetrate an unlawful act; or

             (3) Is a principal in any degree, accessory before or after the fact, accomplice or conspirator to an unlawful act.

      Sec. 56.  NRS 207.016 is hereby amended to read as follows:

      207.016  1.  A conviction pursuant to NRS 207.010, 207.012 or 207.014 operates only to increase, not to reduce, the sentence otherwise provided by law for the principal crime.

      2.  If a count pursuant to NRS 207.010, 207.012 or 207.014 is included in an information charging the primary offense, each previous conviction must be alleged in the accusatory pleading, but no such conviction may be alluded to on trial of the primary offense, nor may any allegation of the conviction be read in the presence of a jury trying the offense or a grand jury considering an indictment for the offense. A count pursuant to NRS 207.010, 207.012 or 207.014 may be separately filed after conviction of the primary offense, but if it is so filed, sentence must not be imposed, or the hearing required by subsection 3 held, until 15 days after the separate filing.

      3.  If a defendant charged pursuant to NRS 207.010, 207.012 or 207.014 pleads guilty or guilty but mentally ill to , or is found guilty or guilty but mentally ill of , the primary offense but denies any previous conviction charged, the court shall determine the issue of the previous conviction after hearing all relevant evidence presented on the issue by the prosecution and the defendant. At such a hearing, the defendant may not challenge the validity of a previous conviction. The court shall impose sentence:

      (a) Pursuant to NRS 207.010 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual criminality;

      (b) Pursuant to NRS 207.012 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual felon; or

      (c) Pursuant to NRS 207.014 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitually fraudulent felon.

      4.  Nothing in the provisions of this section, NRS 207.010, 207.012 or 207.014 limits the prosecution in introducing evidence of prior convictions for purposes of impeachment.

      5.  For the purposes of NRS 207.010, 207.012 and 207.014, a certified copy of a felony conviction is prima facie evidence of conviction of a prior felony.

      6.  Nothing in the provisions of this section, NRS 207.010, 207.012 or 207.014 prohibits a court from imposing an adjudication of habitual criminality, adjudication of habitual felon or adjudication of habitually fraudulent felon based upon a stipulation of the parties.

      Sec. 57.  NRS 207.193 is hereby amended to read as follows:

      207.193  1.  Except as otherwise provided in subsection 4, if a person is convicted of coercion or attempted coercion in violation of paragraph (a) of subsection 2 of NRS 207.190, the court shall, at the request of the prosecuting attorney, conduct a separate hearing to determine whether the offense was sexually motivated.

 


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prosecuting attorney, conduct a separate hearing to determine whether the offense was sexually motivated. A request for such a hearing may not be submitted to the court unless the prosecuting attorney, not less than 72 hours before the commencement of the trial, files and serves upon the defendant a written notice of his intention to request such a hearing.

      2.  A hearing requested pursuant to subsection 1 must be conducted before:

      (a) The court imposes its sentence; or

      (b) A separate penalty hearing is conducted.

      3.  At the hearing, only evidence concerning the question of whether the offense was sexually motivated may be presented. The prosecuting attorney must prove beyond a reasonable doubt that the offense was sexually motivated.

      4.  A person may stipulate that his offense was sexually motivated before a hearing held pursuant to subsection 1 or as part of an agreement to plead nolo contendere , guilty or guilty [.] but mentally ill.

      5.  The court shall enter in the record:

      (a) Its finding from a hearing held pursuant to subsection 1; or

      (b) A stipulation made pursuant to subsection 4.

      6.  For the purposes of this section, an offense is “sexually motivated” if one of the purposes for which the person committed the offense was his sexual gratification.

      Sec. 58.  NRS 212.189 is hereby amended to read as follows:

      212.189  1.  Except as otherwise provided in subsection 9, a prisoner who is in lawful custody or confinement, other than residential confinement, shall not knowingly:

      (a) Store or stockpile any human excrement or bodily fluid;

      (b) Sell, supply or provide any human excrement or bodily fluid to any other person;

      (c) Buy, receive or acquire any human excrement or bodily fluid from any other person; or

      (d) Use, propel, discharge, spread or conceal, or cause to be used, propelled, discharged, spread or concealed, any human excrement or bodily fluid:

             (1) With the intent to have the excrement or bodily fluid come into physical contact with any portion of the body of an officer or employee of a prison or any other person, whether or not such physical contact actually occurs; or

             (2) Under circumstances in which the excrement or bodily fluid is reasonably likely to come into physical contact with any portion of the body of an officer or employee of a prison or any other person, whether or not such physical contact actually occurs.

      2.  Except as otherwise provided in subsection 3, if a prisoner violates any provision of subsection 1, the prisoner is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.

      3.  If a prisoner violates any provision of paragraph (d) of subsection 1 and, at the time of the offense, the prisoner knew that any portion of the excrement or bodily fluid involved in the offense contained a communicable disease that causes or is reasonably likely to cause substantial bodily harm, whether or not the communicable disease was transmitted to a victim as a result of the offense, the prisoner is guilty of a category A felony and shall be punished by imprisonment in the state prison:

 


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result of the offense, the prisoner is guilty of a category A felony and shall be punished by imprisonment in the state prison:

      (a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

      (b) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served,

Ê and may be further punished by a fine of not more than $50,000.

      4.  A sentence imposed upon a prisoner pursuant to subsection 2 or 3:

      (a) Is not subject to suspension or the granting of probation; and

      (b) Must run consecutively after the prisoner has served any sentences imposed upon him for the offense or offenses for which the prisoner was in lawful custody or confinement when he violated the provisions of subsection 1.

      5.  In addition to any other penalty, the court shall order a prisoner who violates any provision of paragraph (d) of subsection 1 to reimburse the appropriate person or governmental body for the cost of any examinations or testing:

      (a) Conducted pursuant to paragraphs (a) and (b) of subsection 7; or

      (b) Paid for pursuant to subparagraph (2) of paragraph (c) of subsection 7.

      6.  The warden, sheriff, administrator or other person responsible for administering a prison shall immediately and fully investigate any act described in subsection 1 that is reported or suspected to have been committed in the prison.

      7.  If there is probable cause to believe that an act described in paragraph (d) of subsection 1 has been committed in a prison:

      (a) Each prisoner believed to have committed the act or to have been the bodily source of any portion of the excrement or bodily fluid involved in the act must submit to any appropriate examinations and testing to determine whether each such prisoner has any communicable disease.

      (b) If possible, a sample of the excrement or bodily fluid involved in the act must be recovered and tested to determine whether any communicable disease is present in the excrement or bodily fluid.

      (c) If the excrement or bodily fluid involved in the act came into physical contact with any portion of the body of an officer or employee of a prison or any other person:

             (1) The results of any examinations or testing conducted pursuant to paragraphs (a) and (b) must be provided to each such officer, employee or other person; and

             (2) For each such officer or employee, the person or governmental body operating the prison where the act was committed shall pay for any appropriate examinations and testing requested by the officer or employee to determine whether a communicable disease was transmitted to him as a result of the act.

      (d) The results of the investigation conducted pursuant to subsection 6 and the results of any examinations or testing conducted pursuant to paragraphs (a) and (b) must be submitted to the district attorney of the county in which the act was committed or to the Office of the Attorney General for possible prosecution of each prisoner who committed the act.

      8.  If a prisoner is charged with committing an act described in paragraph (d) of subsection 1 and a victim or an intended victim of the act was an officer or employee of a prison, the prosecuting attorney shall not dismiss the charge in exchange for a plea of guilty , guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial.

 


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nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial.

      9.  The provisions of this section do not apply to a prisoner who commits an act described in subsection 1 if the act:

      (a) Is otherwise lawful and is authorized by the warden, sheriff, administrator or other person responsible for administering the prison, or his designee, and the prisoner performs the act in accordance with the directions or instructions given to him by that person;

      (b) Involves the discharge of human excrement or bodily fluid directly from the body of the prisoner and the discharge is the direct result of a temporary or permanent injury, disease or medical condition afflicting the prisoner that prevents the prisoner from having physical control over the discharge of his own excrement or bodily fluid; or

      (c) Constitutes voluntary sexual conduct with another person in violation of the provisions of NRS 212.187.

      Sec. 59.  NRS 244.3485 is hereby amended to read as follows:

      244.3485  1.  The board of county commissioners of each county shall, by ordinance, require each person who wishes to engage in the business of a secondhand dealer in an unincorporated area of the county to obtain a license issued by the board before he engages in the business of a secondhand dealer.

      2.  The ordinance must require the applicant to submit:

      (a) An application for a license to the board of county commissioners in a form prescribed by the board.

      (b) With his application a complete set of his fingerprints and written permission authorizing the board to forward those fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

      3.  The board of county commissioners shall not issue a license pursuant to this section to an applicant who has been convicted of, or entered a plea of guilty , guilty but mentally ill or nolo contendere to, a felony involving moral turpitude or related to the qualifications, functions or duties of a secondhand dealer.

      4.  The board of county commissioners may:

      (a) Establish and collect a fee for the issuance or renewal of a license;

      (b) Establish and collect a fee to cover the costs of the investigation of an applicant, including a fee to process the fingerprints of the applicant;

      (c) Place conditions, limitations or restrictions upon the license;

      (d) Establish any other requirements necessary to carry out the provisions of this section; or

      (e) Enact an ordinance which covers the same or similar subject matter included in the provisions of NRS 647.140 and which provides that any person who violates any provision of that ordinance shall be punished:

             (1) For the first offense, by a fine of not more than $500.

             (2) For the second offense, by a fine of not more than $1,000.

             (3) For the third offense, by a fine of not more than $2,000 and by revocation of the license of the secondhand dealer.

      Sec. 60.  NRS 244.3695 is hereby amended to read as follows:

      244.3695  1.  The board of county commissioners shall create a graffiti reward and abatement fund. The money in the fund must be used to pay a reward to a person who, in response to the offer of a reward, provides information which results in the identification, apprehension and conviction of a person who violates a county ordinance that prohibits graffiti or other defacement of property.

 


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information which results in the identification, apprehension and conviction of a person who violates a county ordinance that prohibits graffiti or other defacement of property.

      2.  When a defendant pleads or is found guilty or guilty but mentally ill of violating a county ordinance that prohibits graffiti or other defacement of property, the court shall include an administrative assessment of $250 for each violation in addition to any other fine or penalty. The money collected must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for credit to the graffiti reward and abatement fund.

      3.  If sufficient money is available in the graffiti reward and abatement fund, a county law enforcement agency may offer a reward, not to exceed $1,000, for information leading to the identification, apprehension and conviction of a person who violates a county ordinance that prohibits graffiti or other defacement of property. The reward must be paid out of the graffiti reward and abatement fund upon approval of the board of county commissioners.

      Sec. 61.  NRS 268.0974 is hereby amended to read as follows:

      268.0974  1.  The governing body of an incorporated city in this State, whether organized pursuant to general law or special charter shall, by ordinance, require each person who wishes to engage in the business of a secondhand dealer in the incorporated city to obtain a license issued by the governing body before he engages in the business of a secondhand dealer.

      2.  The ordinance must require the applicant to submit:

      (a) An application for a license to the governing body of the incorporated city in a form prescribed by the governing body.

      (b) With his application a complete set of his fingerprints and written permission authorizing the governing body of the incorporated city to forward those fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

      3.  The governing body of the incorporated city shall not issue a license pursuant to this section to an applicant who has been convicted of, or entered a plea of guilty , guilty but mentally ill or nolo contendere to, a felony involving moral turpitude or related to the qualifications, functions or duties of a secondhand dealer.

      4.  The governing body of the incorporated city may:

      (a) Establish and collect a fee for the issuance or renewal of a license;

      (b) Establish and collect a fee to cover the costs of the investigation of an applicant, including a fee to process the fingerprints of the applicant;

      (c) Place conditions, limitations or restrictions upon the license;

      (d) Establish any other requirements necessary to carry out the provisions of this section; or

      (e) Enact an ordinance which covers the same or similar subject matter included in the provisions of NRS 647.140 and which provides that any person who violates any provision of that ordinance shall be punished:

             (1) For the first offense, by a fine of not more than $500.

             (2) For the second offense, by a fine of not more than $1,000.

             (3) For the third offense, by a fine of not more than $2,000 and by revocation of the license of the secondhand dealer.

      Sec. 62.  NRS 268.4085 is hereby amended to read as follows:

      268.4085  1.  The governing body of each city shall create a graffiti reward and abatement fund. The money in the fund must be used to pay a reward to a person who, in response to the offer of a reward, provides information which results in the identification, apprehension and conviction of a person who violated a city ordinance that prohibits graffiti or other defacement of property.

 


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reward to a person who, in response to the offer of a reward, provides information which results in the identification, apprehension and conviction of a person who violated a city ordinance that prohibits graffiti or other defacement of property.

      2.  When a defendant pleads or is found guilty or guilty but mentally ill of violating a city ordinance that prohibits graffiti or other defacement of property, the court shall include an administrative assessment of $250 for each violation in addition to any other fine or penalty. The money collected must be paid by the clerk of the court to the city treasurer on or before the fifth day of each month for credit to the graffiti reward and abatement fund.

      3.  If sufficient money is available in the graffiti reward and abatement fund, a law enforcement agency for the city may offer a reward, not to exceed $1,000, for information leading to the identification, apprehension and conviction of a person who violates a city ordinance that prohibits graffiti or other defacement of property. The reward must be paid out of the graffiti reward and abatement fund upon approval of the governing body of the city.

      Sec. 63.  NRS 357.170 is hereby amended to read as follows:

      357.170  1.  An action pursuant to this chapter may not be commenced more than 3 years after the date of discovery of the fraudulent activity by the Attorney General or more than 5 years after the fraudulent activity occurred, whichever is earlier. Within those limits, an action may be based upon fraudulent activity that occurred before October 1, 1999.

      2.  In an action pursuant to this chapter, the standard of proof is a preponderance of the evidence. A finding of [guilt] guilty or guilty but mentally ill in a criminal proceeding charging false statement or fraud, whether upon a verdict of guilty or guilty but mentally ill or a plea of guilty , guilty but mentally ill or nolo contendere, estops the person found guilty or guilty but mentally ill from denying an essential element of that offense in an action pursuant to this chapter based upon the same transaction as the criminal proceeding.

      Sec. 64.  NRS 453.3363 is hereby amended to read as follows:

      453.3363  1.  If a person who has not previously been convicted of any offense pursuant to NRS 453.011 to 453.552, inclusive, or pursuant to any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant or hallucinogenic substances tenders a plea of guilty, guilty but mentally ill, nolo contendere or similar plea to a charge pursuant to subparagraph (1) of paragraph (a) of subsection 2 of NRS 453.3325, subsection 2 or 3 of NRS 453.336, NRS 453.411 or 454.351, or is found guilty or guilty but mentally ill of one of those charges, the court, without entering a judgment of conviction and with the consent of the accused, may suspend further proceedings and place him on probation upon terms and conditions that must include attendance and successful completion of an educational program or, in the case of a person dependent upon drugs, of a program of treatment and rehabilitation pursuant to NRS 453.580.

      2.  Upon violation of a term or condition, the court may enter a judgment of conviction and proceed as provided in the section pursuant to which the accused was charged. Notwithstanding the provisions of paragraph (e) of subsection 2 of NRS 193.130, upon violation of a term or condition, the court may order the person to the custody of the Department of Corrections.

 


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      3.  Upon fulfillment of the terms and conditions, the court shall discharge the accused and dismiss the proceedings against him. A nonpublic record of the dismissal must be transmitted to and retained by the Division of Parole and Probation of the Department of Public Safety solely for the use of the courts in determining whether, in later proceedings, the person qualifies under this section.

      4.  Except as otherwise provided in subsection 5, discharge and dismissal under this section is without adjudication of guilt and is not a conviction for purposes of this section or for purposes of employment, civil rights or any statute or regulation or license or questionnaire or for any other public or private purpose, but is a conviction for the purpose of additional penalties imposed for second or subsequent convictions or the setting of bail. Discharge and dismissal restores the person discharged, in the contemplation of the law, to the status occupied before the arrest, indictment or information. He may not be held thereafter under any law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge that arrest, indictment, information or trial in response to an inquiry made of him for any purpose. Discharge and dismissal under this section may occur only once with respect to any person.

      5.  A professional licensing board may consider a proceeding under this section in determining suitability for a license or liability to discipline for misconduct. Such a board is entitled for those purposes to a truthful answer from the applicant or licensee concerning any such proceeding with respect to him.

      Sec. 65.  NRS 453.348 is hereby amended to read as follows:

      453.348  In any proceeding brought under NRS 453.316, 453.321, 453.322, 453.333, 453.334, 453.337, 453.338 or 453.401, any previous convictions of the offender for a felony relating to controlled substances must be alleged in the indictment or information charging the primary offense, but the conviction may not be alluded to on the trial of the primary offense nor may any evidence of the previous offense be produced in the presence of the jury except as otherwise prescribed by law. If the offender pleads guilty or guilty but mentally ill to , or is convicted of , the primary offense but denies any previous conviction charged, the court shall determine the issue after hearing all relevant evidence. A certified copy of a conviction of a felony is prima facie evidence of the conviction.

      Sec. 66.  NRS 453.575 is hereby amended to read as follows:

      453.575  1.  If a defendant pleads guilty or guilty but mentally ill to , or is found guilty or guilty but mentally ill of, any violation of this chapter and an analysis of a controlled substance or other substance or drug was performed in relation to his case, the court shall include in the sentence an order that the defendant pay the sum of $60 as a fee for the analysis of the controlled substance or other substance or drug.

      2.  Except as otherwise provided in this subsection, any money collected for such an analysis must not be deducted from, and is in addition to, any fine otherwise imposed by the court and must be:

      (a) Collected from the defendant before or at the same time that the fine is collected.

      (b) Stated separately in the judgment of the court or on the court’s docket.

 


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      3.  The money collected pursuant to subsection 1 in any district, municipal or justice court must be paid by the clerk of the court to the county or city treasurer, as appropriate, on or before the fifth day of each month for the preceding month.

      4.  The board of county commissioners of each county shall by ordinance create in the county treasury a fund to be designated as the fund for forensic services. The governing body of each city shall create in the city treasury a fund to be designated as the fund for forensic services. Upon receipt, the county or city treasurer, as appropriate, shall deposit any fee for the analyses of controlled substances or other substances or drugs in the fund. The money from such deposits must be accounted for separately within the fund.

      5.  Except as otherwise provided in subsection 6, each month the treasurer shall, from the money credited to the fund pursuant to subsection 3, pay any amount owed for forensic services and deposit any remaining money in the county or city general fund, as appropriate.

      6.  In counties which do not receive forensic services under a contract with the State, the money deposited in the fund for forensic services pursuant to subsection 4 must be expended, except as otherwise provided in this subsection:

      (a) To pay for the analyses of controlled substances or other substances or drugs performed in connection with criminal investigations within the county;

      (b) To purchase and maintain equipment to conduct these analyses; and

      (c) For the training and continuing education of the employees who conduct these analyses.

Ê Money from the fund must not be expended to cover the costs of analyses conducted by, equipment used by or training for employees of an analytical laboratory not registered with the Drug Enforcement Administration of the United States Department of Justice.

      Sec. 67.  NRS 454.358 is hereby amended to read as follows:

      454.358  1.  When a defendant pleads guilty or guilty but mentally ill to , or is found guilty or guilty but mentally ill of , any violation of this chapter and an analysis of a dangerous drug was performed in relation to his case, the justice or judge shall include in the sentence the sum of $50 as a fee for the analysis of the dangerous drug.

      2.  The money collected for such an analysis must not be deducted from the fine imposed by the justice or judge, but must be taxed against the defendant in addition to the fine. The money collected for such an analysis must be stated separately on the court’s docket and must be included in the amount posted for bail. If the defendant is found not guilty or the charges are dropped, the money deposited with the court must be returned to the defendant.

      3.  The money collected pursuant to subsection 1 in municipal court must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month.

      4.  The money collected pursuant to subsection 1 in justice courts must be paid by the clerk of the court to the county treasurer on or before the fifth day of each month for the preceding month.

 

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