Link to Page 2476

 

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κ2009 Statutes of Nevada, Page 2477κ

 

CHAPTER 442, AB 64

Assembly Bill No. 64–Committee on Ways and Means

 

CHAPTER 442

 

AN ACT relating to courts; increasing the number of district judges in the Second and Eighth Judicial Districts; increasing the number of district judges in the Eighth Judicial District who must be judges of the family court; and providing other matters properly relating thereto.

 

[Approved: June 3, 2009]

 

Legislative Counsel’s Digest:

      Sections 1 and 2 of this bill increase the number of district judges in the Second Judicial District, which includes Washoe County, by one district judge, who is not a member of the family court. (NRS 3.010, 3.012)

      Sections 3-5 of this bill increase the number of district judges in the Eighth Judicial District, which includes Clark County, by nine district judges, two of whom must be judges of the family court. (NRS 3.010, 3.018, 3.0185)

      Section 10 of this bill provides that this bill will become effective if, and only if, Assembly Bill No. 65 of this session, which provides for the collection and disposition of additional court fees, is enacted by the Legislature and becomes effective.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 3.012 is hereby amended to read as follows:

      3.012  For the Second Judicial District there must be [14] 15 district judges, 6 of whom must be judges of the family court.

      Sec. 2.  NRS 3.012 is hereby amended to read as follows:

      3.012  For the Second Judicial District there must be [eight] nine district judges who are not judges of the family court.

      Sec. 3.  NRS 3.018 is hereby amended to read as follows:

      3.018  For the Eighth Judicial District there must be [43] 52 district judges, [18] 20 of whom must be judges of the family court.

      Sec. 4.  NRS 3.018 is hereby amended to read as follows:

      3.018  For the Eighth Judicial District there must be [25] 32 district judges who are not judges of the family court.

      Sec. 5.  NRS 3.0185 is hereby amended to read as follows:

      3.0185  For the Eighth Judicial District, in addition to the district judges established pursuant to NRS 3.018, there must be [18] 20 district judges who are judges of the family court.

      Sec. 6.  The additional district judge required for the Second Judicial District pursuant to section 1 of this act must be selected at the general election held on November 2, 2010, and take office on January 3, 2011. The term of this judge expires on January 5, 2015.

      Sec. 7.  The additional district judges required for the Eighth Judicial District pursuant to section 3 of this act must be selected at the general election held on November 2, 2010, and take office on January 3, 2011. The terms of these judges expire on January 5, 2015.

      Sec. 8.  (Deleted by amendment.)

      Sec. 9.  The provisions of NRS 354.599 do not apply to any additional expense of a local government that are related to the provisions of this act.

 


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κ2009 Statutes of Nevada, Page 2478 (Chapter 442, AB 64)κ

 

      Sec. 10.  1.  This section becomes effective upon passage and approval.

      2.  If, and only if, Assembly Bill No. 65 of this session is enacted by the Legislature and becomes effective:

      (a) Sections 1, 3, 6, 7 and 9 of this act become effective on October 1, 2009.

      (b) Section 8 of this act becomes effective on July 1, 2010.

      (c) Sections 1 and 3 of this act expire by limitation on January 2, 2011.

      (d) Sections 2, 4 and 5 of this act become effective on January 3, 2011.

________

 

CHAPTER 443, AB 65

Assembly Bill No. 65–Committee on Judiciary

 

CHAPTER 443

 

AN ACT relating to courts; providing for the collection and disposition of additional court fees; and providing other matters properly relating thereto.

 

[Approved: June 3, 2009]

 

Legislative Counsel’s Digest:

      Section 2 of this bill: (1) authorizes a district court to charge and collect certain additional filing fees; (2) requires the fees to be deposited into a special county account maintained for the benefit of the court; and (3) provides that the fees may be used only for court staffing, capital costs, debt service, renovation, furniture, fixtures, equipment, technology, and in counties whose population is less than 100,000 (currently counties other than Clark and Washoe Counties), for court appointed special advocate programs.

      Section 3 of this bill authorizes a board of county commissioners to impose by ordinance a filing fee of not more than $20 to be paid on the commencement of any civil action or proceeding in the district court and provides that the fee may be used only for programs for court security or for reimbursement of capital costs for maintaining new judicial departments and must not supplant existing budgets for bailiffs or deputy marshals assigned to work in a courtroom. Section 5 of this bill requires a county recorder to collect a fee of $50 upon the filing of any notice of default and election to sell and provides that such fees must be deposited in a special account to support a program of foreclosure mediation established by Supreme Court Rule. However, section 5 also provides that 1.5 percent of the fees collected may be placed in a special account for use by the office of the county recorder. (NRS 107.080)

      Section 6 of this bill provides that notwithstanding the uses provided for the fees in section 2 of this bill, the fees collected pursuant to section 2 must also be used to fund the cost of the salary and benefits of any district judge added by Assembly Bill No. 64 of this session for the period from January 1, 2011, through June 30, 2011.

      Section 7 of this bill requires the county treasurer of a county in which a district judge is added by Assembly Bill No. 64 of this session to remit, from the special account administered and maintained pursuant to section 2 of this bill, an amount equal to $104,104 to the State Controller for credit to the District Judges’ Salary Account of the Supreme Court for each judge added in that county.

      Section 8 of this bill provides that sections 6 and 7 of this bill become effective if, and only if, Assembly Bill No. 64 of this session is enacted by the Legislature and becomes effective.

 


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κ2009 Statutes of Nevada, Page 2479 (Chapter 443, AB 65)κ

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 19 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.

      Sec. 2.  1.  Except as otherwise provided by specific statute and in addition to any other fee required by law, each clerk of the court or county clerk, as appropriate, shall charge and collect the following fees:

      (a) On the commencement of any action or proceeding in the district court, other than those listed in paragraphs (c), (e) and (f), or on the transfer of any action or proceeding from a district court of another county, to be paid by the party commencing the action, proceeding or transfer    $99

      (b) On the appearance of any defendant or any number of defendants answering jointly, to be paid upon the filing of the first paper in the action by him or them $99

      (c) On the filing of a petition for letters testamentary, letters of administration or a guardianship, which fee does not include the court fee prescribed by NRS 19.020, to be paid by the petitioner:

            (1) Where the stated value of the estate is $200,000 or more $352

            (2) Where the stated value of the estate is more than $20,000 but less than $200,000      $99

            (3) Where the stated value of the estate is $20,000 or less, no fee may be charged or collected.

      (d) On the filing of a motion for summary judgment or a joinder thereto    $200

      (e) On the commencement of an action defined as a business matter pursuant to the local rules of practice and on the answer or appearance of any party in any such action or proceeding, to be paid by the party commencing, answering or appearing in the action or proceeding thereto.................................................................................. $1,359

      (f) On the commencement of:

            (1) An action for a constructional defect pursuant to NRS 40.600 to 40.695, inclusive; or

            (2) Any other action defined as “complex” pursuant to the local rules of practice,

Κ and on the answer or appearance of any party in any such action or proceeding, to be paid by the party commencing, answering or appearing in the action or proceeding     $349

      (g) On the filing of a third-party complaint, to be paid by the filing party   $135

      (h) On the filing of a motion to certify or decertify a class, to be paid by the filing party $349

      (i) For the issuance of any writ of attachment, writ of garnishment, writ of execution or any other writ designed to enforce any judgment of the court..................... $10

      2.  Fees collected pursuant to this section must be deposited into a special account administered by the county and maintained for the benefit of the court. The money in that account must be used only:

 


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κ2009 Statutes of Nevada, Page 2480 (Chapter 443, AB 65)κ

 

      (a) To offset the costs for adding and maintaining new judicial departments, including, without limitation, the cost for additional staff;

      (b) To reimburse the county for any capital costs incurred for maintaining any judicial departments that are added by the 75th Session of the Nevada Legislature; and

      (c) If any money remains in the account in a fiscal year after satisfying the purposes set forth in paragraphs (a) and (b), to:

            (1) Acquire land on which to construct additional facilities for the district court or a regional justice center that includes the district court;

            (2) Construct or acquire additional facilities for the district court or a regional justice center that includes the district court;

            (3) Renovate or remodel existing facilities for the district court or a regional justice center that includes the district court;

            (4) Acquire furniture, fixtures and equipment necessitated by the construction or acquisition of additional facilities or the renovation of an existing facility for the district court or a regional justice center that includes the district court;

            (5) Acquire advanced technology;

            (6) 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 district court or a regional justice center that includes the district court;

            (7) In a county whose population is less than 100,000, support court appointed special advocate programs for children, at the discretion of the judges of the judicial district; or

            (8) Be carried forward to the next fiscal year.

      3.  Except as otherwise provided by specific statute, all fees prescribed in this section are payable in advance if demanded by the clerk of the court or county clerk.

      4.  Each clerk of the court or county clerk shall, on or before the fifth day of each month, account for and pay to the county treasurer all fees collected pursuant to this section during the preceding month.

      Sec. 3.  1.  In any county, the board of county commissioners may, in addition to any other fee required by law, impose by ordinance a filing fee of not more than $20 to be paid on the commencement of any civil action or proceeding in the district court for which a filing fee is required and on the filing of any answer or appearance in any such action or proceeding for which a filing fee is required, except as otherwise required pursuant to NRS 19.034.

      2.  On or before the fifth day of each month, in a county where a fee has been imposed pursuant to subsection 1, the clerk of the court shall account for and pay over to the county treasurer any such fees collected by him during the preceding month for credit to an account for programs for court security in the county general fund. The money in that account must be administered by the county and:

      (a) May be used only for programs for court security or to reimburse the county for any capital costs incurred for maintaining any judicial departments that are added by the 75th Session of the Nevada Legislature;

      (b) Must not be used to supplant existing budgets for bailiffs or deputy marshals who are assigned to work in a courtroom; and

      (c) If any balance remains, may be carried forward to the next fiscal year.

 


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κ2009 Statutes of Nevada, Page 2481 (Chapter 443, AB 65)κ

 

      3.  As used in this section, “programs for court security” includes, without limitation:

      (a) Funding for additional positions for bailiffs, marshals, security guards or similar personnel;

      (b) Supplementing existing funding used to pay bailiffs, marshals, security guards and similar personnel;

      (c) Acquiring necessary capital goods for court security;

      (d) Providing security training and education to personnel;

      (e) Conducting security audits; and

      (f) Acquiring or using appropriate technology relating to court security.

      Sec. 4.  (Deleted by amendment.)

      Sec. 5.  NRS 107.080 is hereby amended to read as follows:

      107.080  1.  Except as otherwise provided in NRS 107.085, if any transfer in trust of any estate in real property is made after March 29, 1927, to secure the performance of an obligation or the payment of any debt, a power of sale is hereby conferred upon the trustee to be exercised after a breach of the obligation for which the transfer is security.

      2.  The power of sale must not be exercised, however, until:

      (a) In the case of any trust agreement coming into force:

            (1) On or after July 1, 1949, and before July 1, 1957, the grantor, or his successor in interest, a beneficiary under a subordinate deed of trust or any other person who has a subordinate lien or encumbrance of record on the property, has for a period of 15 days, computed as prescribed in subsection 3, failed to make good the deficiency in performance or payment; or

            (2) On or after July 1, 1957, the grantor, or his successor in interest, a beneficiary under a subordinate deed of trust or any other person who has a subordinate lien or encumbrance of record on the property, has for a period of 35 days, computed as prescribed in subsection 3, failed to make good the deficiency in performance or payment;

      (b) The beneficiary, the successor in interest of the beneficiary or the trustee first executes and causes to be recorded in the office of the recorder of the county wherein the trust property, or some part thereof, is situated a notice of the breach and of his election to sell or cause to be sold the property to satisfy the obligation; and

      (c) Not less than 3 months have elapsed after the recording of the notice.

      3.  The 15- or 35-day period provided in paragraph (a) of subsection 2 commences on the first day following the day upon which the notice of default and election to sell is recorded in the office of the county recorder of the county in which the property is located and a copy of the notice of default and election to sell is mailed by registered or certified mail, return receipt requested and with postage prepaid to the grantor, and to the person who holds the title of record on the date the notice of default and election to sell is recorded, at their respective addresses, if known, otherwise to the address of the trust property. The notice of default and election to sell must describe the deficiency in performance or payment and may contain a notice of intent to declare the entire unpaid balance due if acceleration is permitted by the obligation secured by the deed of trust, but acceleration must not occur if the deficiency in performance or payment is made good and any costs, fees and expenses incident to the preparation or recordation of the notice and incident to the making good of the deficiency in performance or payment are paid within the time specified in subsection 2.

 


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κ2009 Statutes of Nevada, Page 2482 (Chapter 443, AB 65)κ

 

      4.  The trustee, or other person authorized to make the sale under the terms of the trust deed or transfer in trust, shall, after expiration of the 3-month period following the recording of the notice of breach and election to sell, and before the making of the sale, give notice of the time and place thereof by recording the notice of sale and by:

      (a) Providing the notice to each trustor and any other person entitled to notice pursuant to this section by personal service or by mailing the notice by registered or certified mail to the last known address of the trustor and any other person entitled to such notice pursuant to this section;

      (b) Posting a similar notice particularly describing the property, for 20 days successively, in three public places of the township or city where the property is situated and where the property is to be sold; and

      (c) Publishing a copy of the notice three times, once each week for 3 consecutive weeks, in a newspaper of general circulation in the county where the property is situated.

      5.  Every sale made under the provisions of this section and other sections of this chapter vests in the purchaser the title of the grantor and his successors in interest without equity or right of redemption. A sale made pursuant to this section may be declared void by any court of competent jurisdiction in the county where the sale took place if:

      (a) The trustee or other person authorized to make the sale does not substantially comply with the provisions of this section;

      (b) Except as otherwise provided in subsection 6, an action is commenced in the county where the sale took place within 90 days after the date of the sale; and

      (c) A notice of lis pendens providing notice of the pendency of the action is recorded in the office of the county recorder of the county where the sale took place within 30 days after commencement of the action.

      6.  If proper notice is not provided pursuant to subsection 3 or paragraph (a) of subsection 4 to the grantor, to the person who holds the title of record on the date the notice of default and election to sell is recorded, to each trustor or to any other person entitled to such notice, the person who did not receive such proper notice may commence an action pursuant to subsection 5 within 120 days after the date on which the person received actual notice of the sale.

      7.  The sale of a lease of a dwelling unit of a cooperative housing corporation vests in the purchaser title to the shares in the corporation which accompany the lease.

      8.  The county recorder shall, in addition to any other fee, at the time of recording a notice of default and election to sell collect the sum of $50 for deposit in the Account for Foreclosure Mediation, which is hereby created in the State General Fund. The fees collected must be paid over to the county treasurer by the county recorder on or before the fifth day of each month for the preceding calendar month, and, except as otherwise provided in this subsection, must be placed to the credit of the Account. The county recorder may direct that 1.5 percent of the fees collected by the county recorder be transferred into a special account for use by the office of the county recorder. The county treasurer shall, on or before the 15th day of each month, remit the fees deposited by the county recorder for the Account for Foreclosure Mediation to the State Controller for credit to the Account. The Account must be administered by the Court Administrator, and the money in the Account may be expended only for the purpose of supporting a program of foreclosure mediation established by Supreme Court Rule.

 


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κ2009 Statutes of Nevada, Page 2483 (Chapter 443, AB 65)κ

 

and the money in the Account may be expended only for the purpose of supporting a program of foreclosure mediation established by Supreme Court Rule.

      Sec. 6.  Notwithstanding any provision of section 2 of this act to the contrary, the fees collected pursuant to section 2 of this act and deposited in the special account administered by the county and maintained for the benefit of the court must be used to fund the cost of the salary and benefits of any district judge added by Assembly Bill No. 64 of this session for the period from January 1, 2011, through June 30, 2011, and this money is hereby authorized for expenditure.

      Sec. 7.  In a county in which a district judge is added by Assembly Bill No. 64 of this session, the county treasurer is hereby required to, on or before the first Monday in January 2011, remit, from the special account administered and maintained pursuant to section 2 of this act, an amount equal to $104,104 to the State Controller for credit to the District Judges’ Salary Account of the Supreme Court for each judge added in that county.

      Sec. 8.  1.  This section and sections 1 to 5, inclusive, of this act become effective on July 1, 2009.

      2.  Sections 6 and 7 of this act become effective on July 1, 2009, if, and only if, Assembly Bill No. 64 of this session is enacted by the Legislature and becomes effective.

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CHAPTER 444, AB 46

Assembly Bill No. 46–Committee on Judiciary

 

CHAPTER 444

 

AN ACT relating to firearms; requiring a court to transmit certain records of adjudication concerning a person’s mental health to the Central Repository for Nevada Records of Criminal History for certain purposes relating to the purchase or possession of a firearm; establishing procedures for those persons to petition a court to regain certain rights relating to the purchase or possession of a firearm; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Federal law requires states to transmit to the National Instant Criminal Background Check System records of adjudication of mental illness or incompetence, involuntary admission to mental health facilities and other records which indicate a person is prohibited from purchasing a firearm. Federal law also requires states to implement a program by which a person who was previously adjudicated mentally ill or involuntarily committed can apply to have his right to possess a firearm restored and ties this requirement to certain federal funding for states under the NICS Improvement Amendments Act of 2007. (Public Law 110-180) Nevada law prohibits a person from owning or possessing a firearm if he has been adjudicated as mentally ill or has been committed to any mental health facility. (NRS 202.360)

 


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      Sections 1-4 and 13 of this bill require a court to transmit to the Central Repository for Nevada Records of Criminal History a record of any court order, judgment, plea or verdict concerning the involuntary admission of a person to a mental health facility, the appointment of a guardian for a person who has a mental defect, a finding that a person is incompetent to stand trial, a verdict acquitting a person by reason of insanity or a plea of guilty but mentally ill, along with a statement that the record is being transmitted for inclusion in all appropriate databases of the National Instant Criminal Background Check System. (NRS 159.055, 174.035, 175.533, 175.539, 178.425, 433A.310)

      Section 7 of this bill requires the Central Repository to take reasonable steps to ensure that the records transmitted to it by the court are included in each appropriate database of the National Instant Criminal Background Check System. In accordance with federal law, this section also provides a procedure for a person who is the subject of such a record to petition a court to have the record removed from the National Instant Criminal Background Check System and to have his right to possess or purchase a firearm restored.

      Section 8 of this bill provides that the records transmitted by the court to the Central Repository are confidential, may not be used for any purpose other than for inclusion in each appropriate database of the National Instant Criminal Background Check System, and no cause of action for damages may be brought for transmission, failure to transmit, delay in transmitting or inaccuracies within such records.

      Section 8.5 of this bill authorizes a person who is or believes he is the subject of a record of mental health held by the Central Repository to inspect and correct such records. This section, which is modeled after NRS 179A.150, also requires the Central Repository and the Director of the Department of Public Safety to adopt certain regulations relating to the inspection and correction of such records.

      Section 11.5 of this bill requires a court, when appointing a general guardian, to determine whether a proposed ward is a person with a mental defect who is prohibited from possessing a firearm pursuant to federal law.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  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.

 


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κ2009 Statutes of Nevada, Page 2485 (Chapter 444, AB 46)κ

 

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 by a preponderance of the evidence 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.

      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,

Κ 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.  If the court accepts a plea of guilty but mentally ill pursuant to this section, the court shall cause, on a form prescribed by the Department of Public Safety, a record of that plea to be transmitted to the Central Repository for Nevada Records of Criminal History along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

      9.  As used in this section [, a “disease] :

      (a) “Disease or defect of the mind” does not include a disease or defect which is caused solely by voluntary intoxication.

      (b) “National Instant Criminal Background Check System” has the meaning ascribed to it in section 6 of this act.

      Sec. 2.  NRS 175.533 is hereby amended to read as follows:

      175.533  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.

 


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κ2009 Statutes of Nevada, Page 2486 (Chapter 444, AB 46)κ

 

      3.  If the trier of fact finds a defendant guilty but mentally ill pursuant to subsection 1, the court shall cause, on a form prescribed by the Department of Public Safety, a record of the finding to be transmitted to the Central Repository for Nevada Records of Criminal History, along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

      4.  As used in this section [, a “disease] :

      (a) “Disease or defect of the mind” does not include a disease or defect which is caused solely by voluntary intoxication.

      (b) “National Instant Criminal Background Check System” has the meaning ascribed to it in section 6 of this act.

      Sec. 3.  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 person with mental illness, the court must order his discharge; or

      (b) That there is clear and convincing evidence that the person is a person with mental illness, 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 discharged or conditionally released therefrom in accordance with NRS 178.467 to 178.471, inclusive.

Κ The court shall issue its finding within 90 days after the defendant is acquitted.

      3.  The Administrator shall make the reports and the court shall proceed in the manner provided in NRS 178.467 to 178.471, inclusive.

      4.  If the court accepts a verdict acquitting a defendant by reason of insanity pursuant to this section, the court shall cause, on a form prescribed by the Department of Public Safety, a record of that verdict to be transmitted to the Central Repository for Nevada Records of Criminal History, along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

      5.  As used in this section, unless the context otherwise requires:

      (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 offenders and defendants with mental disorders. The term includes, without limitation, Lakes Crossing Center.

 


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κ2009 Statutes of Nevada, Page 2487 (Chapter 444, AB 46)κ

 

      (c) “National Instant Criminal Background Check System” has the meaning ascribed to it in section 6 of this act.

      (d) “Person with mental illness” has the meaning ascribed to it in NRS 178.3986.

      Sec. 4.  NRS 178.425 is hereby amended to read as follows:

      178.425  1.  If the court finds the defendant incompetent, and that he is dangerous to himself or to society and that commitment is required for a determination of his ability to receive treatment to competency and to attain competence, the judge shall order the sheriff to convey the defendant forthwith, together with a copy of the complaint, the commitment and the physicians’ certificate, if any, into the custody of the Administrator or his designee for detention and treatment at a division facility that is secure. The order may include the involuntary administration of medication if appropriate for treatment to competency.

      2.  The defendant must be held in such custody until a court orders his release or until he is returned for trial or judgment as provided in NRS 178.450, 178.455 and 178.460.

      3.  If the court finds the defendant incompetent but not dangerous to himself or to society, and finds that commitment is not required for a determination of the defendant’s ability to receive treatment to competency and to attain competence, the judge shall order the defendant to report to the Administrator or his designee as an outpatient for treatment, if it might be beneficial, and for a determination of his ability to receive treatment to competency and to attain competence. The court may require the defendant to give bail for his periodic appearances before the Administrator or his designee.

      4.  Except as otherwise provided in subsection 5, proceedings against the defendant must be suspended until the Administrator or his designee or, if the defendant is charged with a misdemeanor, the judge finds him capable of standing trial or opposing pronouncement of judgment as provided in NRS 178.400.

      5.  Whenever the defendant has been found incompetent, with no substantial probability of attaining competency in the foreseeable future, and released from custody or from obligations as an outpatient pursuant to paragraph (d) of subsection 4 of NRS 178.460, the proceedings against the defendant which were suspended must be dismissed. No new charge arising out of the same circumstances may be brought after a period, equal to the maximum time allowed by law for commencing a criminal action for the crime with which the defendant was charged, has lapsed since the date of the alleged offense.

      6.  If a defendant is found incompetent pursuant to this section, the court shall cause, on a form prescribed by the Department of Public Safety, a record of that finding to be transmitted to the Central Repository for Nevada Records of Criminal History, along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

      7.  As used in this section, “National Instant Criminal Background Check System” has the meaning ascribed to it in section 6 of this act.

 


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      Sec. 5.  Chapter 179A of NRS is hereby amended by adding thereto the provisions set forth as sections 6 to 8.5, inclusive, of this act.

      Sec. 6.  “National Instant Criminal Background Check System” means the national system created by the federal Brady Handgun Violence Prevention Act, Public Law 103-159.

      Sec. 7.  1.  Upon receiving a record transmitted pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 11.5 of this act, the Central Repository shall take reasonable steps to ensure that the information reported in the record is included in each appropriate database of the National Instant Criminal Background Check System.

      2.  Except as otherwise provided in subsection 3, if the Central Repository receives a record described in subsection 1, the person who is the subject of the record may petition the court for an order declaring that:

      (a) The basis for the adjudication reported in the record no longer exists;

      (b) The adjudication reported in the record is deemed not to have occurred for purposes of 18 U.S.C. § 922(d)(4) and (g)(4) and NRS 202.360; and

      (c) The information reported in the record must be removed from the National Instant Criminal Background Check System.

      3.  To the extent authorized by federal law, if the record concerning the petitioner was transmitted to the Central Repository pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 11.5 of this act, the petitioner may not file a petition pursuant to subsection 2 until 3 years after the date of the order transmitting the record to the Central Repository.

      4.  A petition filed pursuant to subsection 2 must be:

      (a) Filed in the court which made the adjudication or finding pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 11.5 of this act; and

      (b) Served upon the district attorney for the county in which the court described in paragraph (a) is located.

      5.  The Nevada Rules of Civil Procedure govern all proceedings concerning a petition filed pursuant to subsection 2.

      6.  The court shall grant the petition and issue the order described in subsection 2 if the court finds that the petitioner has established that:

      (a) The basis for the adjudication or finding made pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 11.5 of this act concerning the petitioner no longer exists;

      (b) The petitioner’s record and reputation indicate that the petitioner is not likely to act in a manner dangerous to public safety; and

      (c) Granting the relief requested by the petitioner pursuant to subsection 2 is not contrary to the public interest.

      7.  Except as otherwise provided in this subsection, the petitioner must establish the provisions of subsection 6 by a preponderance of the evidence. If the adjudication or finding concerning the petitioner was made pursuant to NRS 433A.310 or section 11.5 of this act, the petitioner must establish the provisions of subsection 6 by clear and convincing evidence.

      8.  The court, upon entering an order pursuant to this section, shall cause, on a form prescribed by the Department of Public Safety, a record of the order to be transmitted to the Central Repository.

 


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κ2009 Statutes of Nevada, Page 2489 (Chapter 444, AB 46)κ

 

      9.  Within 5 business days after receiving a record of an order transmitted pursuant to subsection 8, the Central Repository shall take reasonable steps to ensure that information concerning the adjudication or finding made pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 11.5 of this act is removed from the National Instant Criminal Background Check System.

      10.  If the Central Repository fails to remove a record as provided in subsection 9, the petitioner may bring an action to compel the removal of the record. If the petitioner prevails in the action, the court may award the petitioner reasonable attorney’s fees and costs incurred in bringing the action.

      11.  If a petition brought pursuant to subsection 2 is denied, the person who is the subject of the record may petition for a rehearing not sooner than 2 years after the date of the denial of the petition.

      Sec. 8.  1.  Any record described in section 7 of this act is confidential and is not a public book or record within the meaning of NRS 239.010. A person may not use the record for any purpose other than for inclusion in the appropriate database of the National Instant Criminal Background Check System.

      2.  If a person or governmental entity is required to transmit, report or take any other action concerning a record pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 7 or 11.5 of this act, no action for damages may be brought against the person or governmental entity for:

      (a) Transmitting or reporting the record or taking any other required action concerning the record;

      (b) Failing to transmit or report the record or failing to take any other required action concerning the record;

      (c) Delaying the transmission or reporting of the record or delaying in taking any other required action concerning the record; or

      (d) Transmitting or reporting an inaccurate or incomplete version of the record or taking any other required action concerning an inaccurate or incomplete version of the record.

      Sec. 8.5.  1.  The Central Repository shall permit a person who is or believes he may be the subject of information relating to records of mental health held by the Central Repository to inspect and correct any information contained in such records.

      2.  The Central Repository shall adopt regulations and make available necessary forms to permit inspection, review and correction of information relating to records of mental health by those persons who are the subjects thereof. The regulations must specify:

      (a) The requirements for proper identification of the persons seeking access to the records; and

      (b) The reasonable charges or fees, if any, for inspecting records.

      3.  The Director of the Department shall adopt regulations governing:

      (a) All challenges to the accuracy or sufficiency of information or records of mental health by the person who is the subject of the allegedly inaccurate or insufficient record;

      (b) The correction of any information relating to records of mental health found by the Director to be inaccurate, insufficient or incomplete in any material respect;

 


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κ2009 Statutes of Nevada, Page 2490 (Chapter 444, AB 46)κ

 

      (c) The dissemination of corrected information to those persons or agencies which have previously received inaccurate or incomplete information; and

      (d) A reasonable time limit within which inaccurate or insufficient information relating to records of mental health must be corrected and the corrected information disseminated.

      4.  As used in this section, “information relating to records of mental health” means information contained in a record:

      (a) Transmitted to the Central Repository pursuant to NRS 174.035, 175.533, 175.539, 178.425 or 433A.310 or section 11.5 of this act; or

      (b) Transmitted to the National Instant Criminal Background Check System pursuant to section 7 of this act.

      Sec. 9.  NRS 179A.010 is hereby amended to read as follows:

      179A.010  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 179A.020 to 179A.073, inclusive, and section 6 of this act have the meanings ascribed to them in those sections.

      Sec. 10.  (Deleted by amendment.)

      Sec. 11.  (Deleted by amendment.)

      Sec. 11.5.  Chapter 159 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  If the court orders a general guardian appointed for a proposed ward, the court shall determine, by clear and convincing evidence, whether the proposed ward is a person with a mental defect who is prohibited from possessing a firearm pursuant to 18 U.S.C. § 922(d)(4) or (g)(4). If a court makes a finding pursuant to this section that the proposed ward is a person with a mental defect, the court shall include the finding in the order appointing the guardian and cause a record of the order to be transmitted to the Central Repository for Nevada Records of Criminal History, along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

      2.  As used in this section:

      (a) “National Instant Criminal Background Check System” has the meaning ascribed to it in section 6 of this act.

      (b) “Person with a mental defect” means a person who, as a result of marked subnormal intelligence, mental illness, incompetence, condition or disease, is:

            (1) A danger to himself or others; or

            (2) Lacks the capacity to contract or manage his own affairs.

      Sec. 12.  NRS 202.362 is hereby amended to read as follows:

      202.362  1.  Except as otherwise provided in subsection 3, a person within this State shall not sell or otherwise dispose of any firearm or ammunition to another person if he has actual knowledge that the other person:

      (a) Is under indictment for, or has been convicted of, a felony in this or any other state, or in any political subdivision thereof, or of a felony in violation of the laws of the United States of America, unless he has received a pardon and the pardon does not restrict his right to bear arms;

      (b) Is a fugitive from justice;

      (c) Has been adjudicated as mentally ill or has been committed to any mental health facility; or

 


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κ2009 Statutes of Nevada, Page 2491 (Chapter 444, AB 46)κ

 

      (d) Is illegally or unlawfully in the United States.

      2.  A person who violates the provisions of subsection 1 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 1 year 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.  This section does not apply to a person who sells or disposes of any firearm or ammunition to:

      (a) A licensed importer, licensed manufacturer, licensed dealer or licensed collector who, pursuant to 18 U.S.C. § 925(b), is not precluded from dealing in firearms or ammunition; or

      (b) A person who has been granted relief from the disabilities imposed by federal laws pursuant to 18 U.S.C. § 925(c) [.] or section 7 of this act.

      Sec. 13.  NRS 433A.310 is hereby amended to read as follows:

      433A.310  1.  Except as otherwise provided in NRS 432B.6076 and 432B.6077, if the district court finds, after proceedings for the involuntary court-ordered admission of a person to a public or private mental health facility:

      (a) That there is not clear and convincing evidence that the person with respect to whom the hearing was held has a mental illness or exhibits observable behavior such that he is likely to harm himself or others if allowed his liberty, the court shall enter its finding to that effect and the person must not be involuntarily detained in such a facility.

      (b) That there is clear and convincing evidence that the person with respect to whom the hearing was held has a mental illness and, because of that illness, is likely to harm himself or others if allowed his liberty, the court may order the involuntary admission of the person for the most appropriate course of treatment. The order of the court must be interlocutory and must not become final if, within 30 days after the involuntary admission, the person is unconditionally released pursuant to NRS 433A.390.

      2.  Except as otherwise provided in NRS 432B.608, an involuntary admission pursuant to paragraph (b) of subsection 1 automatically expires at the end of 6 months if not terminated previously by the medical director of the public or private mental health facility as provided for in subsection 2 of NRS 433A.390. Except as otherwise provided in NRS 432B.608, at the end of the court-ordered period of treatment, the Division or any mental health facility that is not operated by the Division may petition to renew the detention of the person for additional periods not to exceed 6 months each. For each renewal, the petition must set forth to the court specific reasons why further treatment would be in the person’s own best interests.

      3.  Before issuing an order for involuntary admission or a renewal thereof, the court shall explore other alternative courses of treatment within the least restrictive appropriate environment as suggested by the evaluation team who evaluated the person, or other persons professionally qualified in the field of psychiatric mental health, which the court believes may be in the best interests of the person.

      4.  If the court issues an order involuntarily admitting a person to a public or private mental health facility pursuant to this section, the court shall, notwithstanding the provisions of NRS 433A.715, cause, on a form prescribed by the Department of Public Safety, a record of such order to be transmitted to the Central Repository for Nevada Records of Criminal History, along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

 


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κ2009 Statutes of Nevada, Page 2492 (Chapter 444, AB 46)κ

 

transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System.

      5.  As used in this section, “National Instant Criminal Background Check System” has the meaning ascribed to it in section 6 of this act.

      Sec. 14.  The provisions of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.

      Sec. 15.  This act becomes effective on January 1, 2010.

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CHAPTER 445, AB 84

Assembly Bill No. 84–Committee on Commerce and Labor

 

CHAPTER 445

 

AN ACT relating to compensation; revising provisions related to compensation for overtime; revising provisions for the collection of benefits required to be repaid to the Employment Security Division of the Department of Employment, Training and Rehabilitation; establishing a penalty for fraudulently obtaining unemployment benefits under certain circumstances; revising provisions relating to the authorized use of money in the Employment Security Fund by the Administrator of the Division; providing penalties; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 8.3 of this bill revises provisions related to an exception to certain requirements for compensation for overtime.

      Section 8.5 of this bill authorizes the Administrator of the Employment Security Division of the Department of Employment, Training and Rehabilitation to assess against a person who is overpaid benefits certain administrative fees prescribed by an agency of the United States. Section 9 of this bill revises existing law by providing that certain fraudulent activity conducted by a person in order to obtain or increase any unemployment benefit or payment, including the filing of a claim while incarcerated without expressly disclosing that the person is incarcerated, constitutes unemployment insurance fraud. Section 9 also requires a person who commits unemployment insurance fraud to repay to the Administrator all of the benefits received by that person, in addition to any interest, penalties and costs. Section 9 further provides that a person is disqualified from receiving unemployment compensation benefits for a specified period, but authorizes the Administrator to waive the period of disqualification for good cause shown or if the person adheres to a repayment schedule. Additionally, section 9 provides that a person who obtains benefits of $250 or more while committing unemployment insurance fraud shall be punished in the same manner as if he committed theft. Section 9 also provides that the repayment of such benefits may not be done by the withholding of benefits otherwise due and payable to the person unless the period of disqualification is waived by the Administrator. Finally, section 9 authorizes the Administrator to impose a penalty equal to not more than 25 or 50 percent of the total amount of benefits improperly obtained by a person, depending on the amount improperly obtained by the person. (NRS 612.445)

      Section 10 of this bill revises existing law by authorizing the Administrator to use money from the Employment Security Fund for the payment of costs of any program or the implementation of procedures for the proper payment of benefits and the collection of contributions and reimbursements. (NRS 612.615)

 


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κ2009 Statutes of Nevada, Page 2493 (Chapter 445, AB 84)κ

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Sections 1-8.  (Deleted by amendment.)

      Sec. 8.3.  NRS 608.018 is hereby amended to read as follows:

      608.018  1.  An employer shall pay 1 1/2 times an employee’s regular wage rate whenever an employee who receives compensation for employment at a rate less than 1 1/2 times the minimum rate prescribed pursuant to NRS 608.250 works:

      (a) More than 40 hours in any scheduled week of work; or

      (b) More than 8 hours in any workday unless by mutual agreement the employee works a scheduled 10 hours per day for 4 calendar days within any scheduled week of work.

      2.  An employer shall pay 1 1/2 times an employee’s regular wage rate whenever an employee who receives compensation for employment at a rate not less than 1 1/2 times the minimum rate prescribed pursuant to NRS 608.250 works more than 40 hours in any scheduled week of work.

      3.  The provisions of subsections 1 and 2 do not apply to:

      (a) Employees who are not covered by the minimum wage provisions of NRS 608.250;

      (b) Outside buyers;

      (c) [Salesmen earning commissions] Employees in a retail or service business if their regular rate is more than 1 1/2 times the minimum wage, and more than [one-half] half their compensation for a representative period comes from commissions [;] on goods or services, with the representative period being, to the extent allowed pursuant to federal law, not less than one month;

      (d) Employees who are employed in bona fide executive, administrative or professional capacities;

      (e) Employees covered by collective bargaining agreements which provide otherwise for overtime;

      (f) Drivers, drivers’ helpers, loaders and mechanics for motor carriers subject to the Motor Carrier Act of 1935, as amended;

      (g) Employees of a railroad;

      (h) Employees of a carrier by air;

      (i) Drivers or drivers’ helpers making local deliveries and paid on a trip-rate basis or other delivery payment plan;

      (j) Drivers of taxicabs or limousines;

      (k) Agricultural employees;

      (l) Employees of business enterprises having a gross sales volume of less than $250,000 per year;

      (m) Any salesman or mechanic primarily engaged in selling or servicing automobiles, trucks or farm equipment; and

      (n) A mechanic or workman for any hours to which the provisions of subsection 3 or 4 of NRS 338.020 apply.

      Sec. 8.5.  NRS 612.365 is hereby amended to read as follows:

      612.365  1.  Any person who is overpaid any amount as benefits under this chapter is liable for the amount overpaid unless:

      (a) The overpayment was not due to fraud, misrepresentation or willful nondisclosure on the part of the recipient; and

 


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κ2009 Statutes of Nevada, Page 2494 (Chapter 445, AB 84)κ

 

      (b) The overpayment was received without fault on the part of the recipient, and its recovery would be against equity and good conscience, as determined by the Administrator.

      2.  The amount of the overpayment must be assessed to the liable person, and he must be notified of the basis of the assessment. The notice must specify the amount for which the person is liable. In the absence of fraud, misrepresentation or willful nondisclosure, notice of the assessment must be mailed or personally served not later than 1 year after the close of the benefit year in which the overpayment was made.

      3.  At any time within 5 years after the notice of overpayment, the Administrator may recover the amount of the overpayment by using the same methods of collection provided in NRS 612.625 to 612.645, inclusive, 612.685 and 612.686 for the collection of past due contributions or by deducting the amount of the overpayment from any benefits payable to the liable person under this chapter.

      4.  The Administrator may waive recovery or adjustment of all or part of the amount of any such overpayment which he finds to be uncollectible or the recovery or adjustment of which he finds to be administratively impracticable.

      5.  To the extent allowed pursuant to federal law, the Administrator may assess any administrative fee prescribed by an applicable agency of the United States regarding the recovery of such overpayments.

      6.  Any person against whom liability is determined under this section may appeal therefrom within 11 days after the date the notice provided for in this section was mailed to, or served upon, the person. An appeal must be made and conducted in the manner provided in this chapter for the appeals from determinations of benefit status. The 11-day period provided for in this subsection may be extended for good cause shown.

      Sec. 9.  NRS 612.445 is hereby amended to read as follows:

      612.445  [When the Administrator finds that any]

      1.  A person [has made] shall not make a false statement or representation, knowing it to be false, or knowingly [failed] fail to disclose a material fact in order to obtain or increase any benefit or other payment under this chapter, including, without limitation, by failing to properly report earnings or by filing a claim for benefits using the social security number, name or other personal identifying information of another person. A person who violates the provisions of this subsection commits unemployment insurance fraud.

      2.  When the Administrator finds that a person has committed unemployment insurance fraud pursuant to subsection 1, the person shall repay to the Administrator for deposit in the Fund a sum equal to all of the benefits received by or paid to the person for each week with respect to which the false statement or representation was made or to which he failed to disclose a material fact [. The] in addition to any interest, penalties and costs related to that sum.

      3.  Except as otherwise provided in this subsection and subsection 8, the person is disqualified from receiving unemployment compensation benefits under this chapter [for] :

      (a) For a period [of] beginning with the first week claimed in violation of subsection 1 and ending not more than 52 consecutive weeks [beginning with] after the week in which it is determined that [an improper] a claim was filed [involving the false statement or representation or failure to disclose a material fact.]

 


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κ2009 Statutes of Nevada, Page 2495 (Chapter 445, AB 84)κ

 

filed [involving the false statement or representation or failure to disclose a material fact.] in violation of subsection 1; or

      (b) Until the sum described in subsection 2, in addition to any interest, penalties or costs related to that sum, is repaid to the Administrator,

Κ whichever is longer. The Administrator shall fix the period of disqualification according to the circumstances in each case.

      4.  It is a violation of subsection 1 for a person to file a claim, or to cause or allow a claim to be filed on his behalf, if:

      (a) The person is incarcerated in the state prison or any county or city jail or detention facility or other correctional facility in this State; and

      (b) The claim does not expressly disclose his incarceration.

      5.  A person who obtains benefits of $250 or more in violation of subsection 1 shall be punished in the same manner as theft pursuant to subsection 3 or 4 of NRS 205.0835.

      6.  In addition to the repayment of benefits required pursuant to subsection 2, if the amount of benefits which must be repaid is greater than $1,000, the Administrator may impose a penalty equal to not more than:

      (a) If the amount of such benefits is greater than $1,000 but not greater than $2,500, 25 percent; or

      (b) If the amount of such benefits is greater than $2,500, 50 percent,

Κ of the total amount of benefits received by the person in violation of subsection 1 or any other provision of this chapter.

      7.  Except as otherwise provided in subsection 8, a person may not pay benefits as required pursuant to subsection 2 by using benefits which would otherwise be due and payable to the person if he was not disqualified.

      8.  The Administrator may waive the period of disqualification prescribed in subsection 3 for good cause shown or if the person adheres to a repayment schedule authorized by the Administrator that is designed to fully repay benefits received from an improper claim, in addition to any related interest, penalties and costs, within 18 months. If the Administrator waives the period of disqualification pursuant to this subsection, the person may repay benefits as required pursuant to subsection 2 by using any benefits which are due and payable to the person, except that benefits which are due and payable to the person may not be used to repay any related interest, penalties and costs.

      9.  The Administrator may recover any money required to be paid pursuant to this section in accordance with the provisions of NRS 612.365 and may collect interest on any such money in accordance with the provisions of NRS 612.620.

      Sec. 10.  NRS 612.615 is hereby amended to read as follows:

      612.615  1.  There is hereby created the Employment Security Fund as a special revenue fund.

      2.  All interest and forfeits collected under NRS 612.618 to 612.675, inclusive, and 612.740 must be paid into the Fund.

      3.  All money which is deposited or paid into the Fund is hereby appropriated and made available to the Administrator. The money may not be expended or made available for expenditure in any manner which would permit its substitution for, or a corresponding reduction in, federal payments which would, in the absence of this money, be available to finance expenditures for the administration of the employment security laws of the State of Nevada.

 


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κ2009 Statutes of Nevada, Page 2496 (Chapter 445, AB 84)κ

 

      4.  This section does not prevent this money from being used as a revolving fund to cover expenditures, necessary and proper under the law, for which federal payments have been duly requested but not yet received, subject to the repayment to the Fund of such expenditures when received.

      5.  The money in this Fund must be used by the Administrator for the payment of costs of [administration] :

      (a) Administration which are found not to have been properly and validly chargeable against federal grants received for or in the Unemployment Compensation Administration Fund [.] ; or

      (b) Any program or the implementation of procedures deemed necessary by the Administrator to ensure the proper payment of benefits and collection of contributions and reimbursements pursuant to this chapter.

      6.  Any balances in this Fund do not lapse at any time, but are continuously available to the Administrator for expenditure consistent with this chapter.

      7.  Money in this Fund must not be commingled with other state money, but must be maintained in a separate account on the books of the depositary.

      Sec. 11.  NRS 612.715 is hereby amended to read as follows:

      612.715  [Whoever] Except as otherwise provided in subsection 5 of NRS 612.445, whoever makes a false statement or representation knowing it to be false, or knowingly fails to disclose a material fact, to obtain or increase any benefit or other payment under this chapter, either for himself or for any other person, is guilty of a misdemeanor.

      Sec. 12.  NRS 612.720 is hereby amended to read as follows:

      612.720  [Whenever] Except as otherwise provided in subsection 5 of NRS 612.445, whenever two or more persons [shall] conspire to obtain or increase any benefit or other payment under this chapter by a false statement or representation knowing it to be false, or by knowingly failing to disclose a material fact, or whenever any person makes a series of false statements or representations knowing them to be false, to obtain or increase benefit payments under this chapter over a period of more than 1 week, every such person is guilty of a gross misdemeanor.

      Sec. 13.  NRS 612.725 is hereby amended to read as follows:

      612.725  [Any] Except as otherwise provided in subsection 5 of NRS 612.445, any person residing in this State who claims benefits under any agreement existing between the Division and some other state or the Federal Government, who willfully makes a false statement or representation or knowingly fails to disclose a material fact to obtain or increase benefits under the provisions of the unemployment law of any other state or the Federal Government is guilty of a misdemeanor.

      Sec. 14.  This act becomes effective on July 1, 2009.

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κ2009 Statutes of Nevada, Page 2497κ

 

CHAPTER 446, AB 202

Assembly Bill No. 202–Assemblyman Hardy

 

CHAPTER 446

 

AN ACT relating to cosmetology; requiring certain persons who engage in the practice of threading or who own or operate certain facilities in which threading is conducted to register with the State Board of Cosmetology under certain circumstances; revising various definitions; revising provisions relating to the qualifications for examination as an instructor of aestheticians, an instructor in nail technology, a nail technologist or an aesthetician; revising provisions relating to cosmetologists’ apprentices; increasing the required instruction hours for an aesthetician; providing a penalty; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 1.4 of this bill requires certain persons who engage in the practice of threading or who own or operate certain facilities in which threading is conducted to register with State Board of Cosmetology each year. Section 1.4 also authorizes the Board to inspect, during regular business hours, any facility in this State in which threading is conducted.

      Sections 1.8 and 3 of this bill revise the definitions of “aesthetician” and “cosmetologist” to reference sugaring. (NRS 644.0205, 644.023) Section 5 of this bill changes the term “manicurist” to “nail technologist,” and this bill carries out this change for variations of the term “manicurist” that appear in chapter 644 of NRS. (NRS 644.029)

      Section 11 of this bill revises the requirements for admission to examination as an instructor of aestheticians, effective July 1, 2010. (NRS 644.1955) Section 13 of this bill revises the requirements for admission to examination as an instructor in nail technology, effective July 1, 2010. (NRS 644.197) Section 15 of this bill revises the requirements for admission to examination for a license as a nail technologist, effective July 1, 2010. (NRS 644.205) Section 16 of this bill revises the requirements for admission to examination for a license as an aesthetician, effective July 1, 2010. (NRS 644.207)

      Existing law sets forth various requirements that must be met before the Board may issue to a person a certificate of registration as a cosmetologist’s apprentice. (NRS 644.217) Section 17 of this bill: (1) eliminates the requirement that such a person be a resident of a county whose population is less than 50,000; (2) requires the training of the person as a cosmetologist’s apprentice to be conducted at a licensed cosmetological establishment that is located 60 miles or more from a licensed school of cosmetology; and (3) authorizes the Board to waive, for good cause shown, various requirements for an applicant for a certificate of registration as a cosmetologist’s apprentice.

      Existing law sets forth the requirements which must be met before the Board renews a license issued pursuant to chapter 644 of NRS. (NRS 644.325) Section 24.5 of this bill requires that before a person applies for the renewal of a license on or after January 1, 2011, as a cosmetologist, hair designer, aesthetician, electrologist, nail technologist or demonstrator of cosmetics, the person must complete at least 4 hours of instruction relating to infection control.

 


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κ2009 Statutes of Nevada, Page 2498 (Chapter 446, AB 202)κ

 

      Section 29 of this bill increases from 120 to 150 the number of hours of instruction a student enrolled as an aesthetician must receive before commencing work on members of the public. (NRS 644.408)

      Section 30.5 of this bill requires the Board, on or before February 1, 2011, to prepare and submit to the Director of the Legislative Counsel Bureau for transmittal to the Legislature a report concerning the practice of threading in this State.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 644 of NRS is hereby amended by adding thereto the provisions set forth as sections 1.2 and 1.4 of this act.

      Sec. 1.2.  “Threading” means to remove superfluous hair from the body of a person by twisting thread around the hair and pulling it from the skin.

      Sec. 1.4.  1.  Each natural person who engages in the practice of threading and each owner or operator of a kiosk or other stand-alone facility in which a natural person engages in the practice of threading shall, on or before January 1 of each year, register with the Board on a form prescribed by the Board. The registration must include:

      (a) The name, address and telephone number of the person, owner or operator; and

      (b) Any other information relating to the practice of the person or the operation of the kiosk or other facility required by the Board. The Board shall not charge a fee for registering a person, owner or operator pursuant to this subsection.

      2.  The Board may, during regular business hours, inspect any facility in this State in which threading is conducted.

      Sec. 1.6.  NRS 644.020 is hereby amended to read as follows:

      644.020  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 644.0205 to 644.029, inclusive, and section 1.2 of this act have the meanings ascribed to them in those sections.

      Sec. 1.8.  NRS 644.0205 is hereby amended to read as follows:

      644.0205  1.  “Aesthetician” means any person who engages in the practices of:

      [1.] (a) Beautifying, massaging, cleansing or stimulating the skin of the human body [, except the scalp,] by the use of cosmetic preparations, antiseptics, tonics, lotions or creams, or any device, electrical or otherwise, for the care of the skin;

      [2.] (b) Applying cosmetics or eyelashes to any person, tinting eyelashes and eyebrows, and lightening hair on the body ; [except the scalp;] and

      [3.] (c) Removing superfluous hair from the body of any person by the use of depilatories, waxing , [or] tweezers [,] or sugaring,

Κ but does not include the branches of cosmetology of a cosmetologist, hair designer, electrologist or [manicurist.] nail technologist.

      2.  As used in this section, “depilatories” does not include the practice of threading.

      Sec. 2.  NRS 644.0225 is hereby amended to read as follows:

      644.0225  “Cosmetological establishment” means any premises, mobile unit, building or part of a building where cosmetology is practiced, other than a licensed barbershop in which one or more licensed [manicurists] nail technologists practice.

 


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κ2009 Statutes of Nevada, Page 2499 (Chapter 446, AB 202)κ

 

      Sec. 3.  NRS 644.023 is hereby amended to read as follows:

      644.023  1.  “Cosmetologist” means a person who engages in the practices of:

      [1.] (a) Cleansing, stimulating or massaging the scalp or cleansing or beautifying the hair by the use of cosmetic preparations, antiseptics, tonics, lotions or creams.

      [2.] (b) Cutting, trimming or shaping the hair.

      [3.] (c) Arranging, dressing, curling, waving, cleansing, singeing, bleaching, tinting, coloring or straightening the hair of any person with the hands, mechanical or electrical apparatus or appliances, or by other means, or similar work incident to or necessary for the proper carrying on of the practice or occupation provided by the terms of this chapter.

      [4.] (d) Removing superfluous hair from the surface of the body of any person by the use of electrolysis where the growth is a blemish, or by the use of depilatories, waxing , [or] tweezers [,] or sugaring, except for the permanent removal of hair with needles.

      [5.] (e) Manicuring the nails of any person.

      [6.] (f) Beautifying, massaging, stimulating or cleansing the skin of the human body by the use of cosmetic preparations, antiseptics, tonics, lotions, creams or any device, electrical or otherwise, for the care of the skin.

      [7.] (g) Giving facials or skin care or applying cosmetics or eyelashes to any person.

      2.  As used in this section, “depilatories” does not include the practice of threading.

      Sec. 4.  NRS 644.024 is hereby amended to read as follows:

      644.024  “Cosmetology” includes the occupations of a cosmetologist, aesthetician, electrologist, hair designer, demonstrator of cosmetics and [manicurist.] nail technologist.

      Sec. 5.  NRS 644.029 is hereby amended to read as follows:

      644.029  [“Manicurist”] “Nail technologist” means any person who, for compensation or by demonstration, engages in the practices of:

      1.  Care of another’s fingernails or toenails.

      2.  Beautification of another’s nails.

      3.  Extension of another’s nails.

      4.  Massaging of another’s hands, forearms, feet or lower legs.

      Sec. 6.  NRS 644.030 is hereby amended to read as follows:

      644.030  1.  The State Board of Cosmetology consisting of seven members appointed by the Governor is hereby created.

      2.  The Board must consist of four cosmetologists, one [manicurist,] nail technologist, one aesthetician and one member representing customers of cosmetology.

      Sec. 7.  NRS 644.040 is hereby amended to read as follows:

      644.040  1.  No person is eligible for appointment as a member of the Board:

      (a) Who is not licensed as a [manicurist,] nail technologist, electrologist, aesthetician or cosmetologist under the provisions of this chapter.

      (b) Who is not, at the time of appointment, actually engaged in the practice of his respective branch of cosmetology.

      (c) Who is not at least 25 years of age.

      (d) Who has not been a resident of this State for at least 3 years immediately before his appointment.

 


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κ2009 Statutes of Nevada, Page 2500 (Chapter 446, AB 202)κ

 

      2.  The requirements of paragraphs (a) and (b) of subsection 1 do not apply to a person appointed to represent customers of cosmetology.

      3.  Not more than one member of the Board may be connected, directly or indirectly, with any school of cosmetology, or have been so connected while previously serving as a member of the Board.

      Sec. 8.  NRS 644.130 is hereby amended to read as follows:

      644.130  1.  The Board shall keep a record containing the name, known place of business, and the date and number of the license of every [manicurist,] nail technologist, electrologist, aesthetician, hair designer, demonstrator of cosmetics and cosmetologist, together with the names and addresses of all cosmetological establishments and schools of cosmetology licensed pursuant to this chapter. The record must also contain the facts which the applicants claimed in their applications to justify their licensure.

      2.  The Board may disclose the information contained in the record kept pursuant to subsection 1 to:

      (a) Any other licensing board or agency that is investigating a licensee.

      (b) A member of the general public, except information concerning the home and work address and telephone number of a licensee.

      Sec. 9.  NRS 644.193 is hereby amended to read as follows:

      644.193  1.  The Board may grant a provisional license as an instructor to a person who:

      (a) Has successfully completed the 12th grade in school or its equivalent and submits written verification of the completion of his education;

      (b) Has practiced as a full-time licensed cosmetologist, hair designer, aesthetician or [manicurist] nail technologist for 1 year and submits written verification of his experience;

      (c) Is licensed pursuant to this chapter;

      (d) Applies for a provisional license on a form supplied by the Board;

      (e) Submits two current photographs of himself; and

      (f) Has paid the fee established pursuant to subsection 2.

      2.  The Board shall establish and collect a fee of not less than $40 and not more than $75 for the issuance of a provisional license as an instructor.

      3.  A person issued a provisional license pursuant to this section may act as an instructor for compensation while accumulating the number of hours of training required for an instructor’s license.

      4.  A provisional license as an instructor expires upon accumulation by the licensee of the number of hours of training required for an instructor’s license or 1 year [from] after the date of issuance, whichever occurs first. The Board may grant an extension of not more than 45 days to those provisional licensees who have applied to the Board for examination as instructors and are awaiting examination.

      Sec. 10.  NRS 644.195 is hereby amended to read as follows:

      644.195  1.  Each instructor must:

      (a) Be licensed as a cosmetologist pursuant to this chapter.

      (b) Have successfully completed the 12th grade in school or its equivalent.

      (c) Have 1 year of experience as a cosmetologist or as a licensed student instructor.

      (d) Have completed 1,000 hours of training as an instructor or 500 hours of training as a licensed provisional instructor in a school of cosmetology.

 


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κ2009 Statutes of Nevada, Page 2501 (Chapter 446, AB 202)κ

 

      (e) Except as otherwise provided in subsection 2, take one or more courses in advanced techniques for teaching or training, approved by the Board, whose combined duration is at least 30 hours during each 2-year period.

      2.  The provisions of paragraph (e) of subsection 1 do not apply to an instructor who is initially licensed not more than 6 months before the renewal date of the license. An instructor who is initially licensed more than 6 months but less than 1 year before the renewal date of the license must take one or more courses specified in paragraph (e) whose combined duration is at least 15 hours during each 2-year period.

      3.  Each instructor shall pay an initial fee for a license of not less than $60 and not more than $90.

      Sec. 11.  NRS 644.1955 is hereby amended to read as follows:

      644.1955  1.  The Board shall admit to examination for a license as an instructor of aestheticians any person who has applied to the Board in proper form, paid the fee and:

      (a) Is at least 18 years of age;

      (b) Is of good moral character;

      (c) Has successfully completed the 12th grade in school or its equivalent;

      (d) Has received a minimum of [800] 700 hours of training as an instructor or [400] 500 hours of training as a licensed provisional instructor in a licensed school of cosmetology;

      (e) Is licensed as an aesthetician pursuant to this chapter; and

      (f) Has practiced as a full-time licensed aesthetician or as a licensed student instructor for 1 year.

      2.  Except as otherwise provided in subsection 3, an instructor of aestheticians shall complete at least 30 hours of advanced training in a course approved by the Board during each 2-year period of his license.

      3.  The provisions of subsection 2 do not apply to an instructor of aestheticians who is initially licensed not more than 6 months before the renewal date of the license. An instructor of aestheticians who is initially licensed more than 6 months but less than 1 year before the renewal date of the license must take one or more courses specified in subsection 2 whose combined duration is at least 15 hours during each 2-year period.

      Sec. 12.  NRS 644.197 is hereby amended to read as follows:

      644.197  1.  The Board shall admit to examination for a license as an instructor in [manicuring] nail technology any person who has applied to the Board in proper form, paid the fee and:

      (a) Is at least 18 years of age;

      (b) Is of good moral character;

      (c) Has successfully completed the 12th grade in school or its equivalent;

      (d) Has received a minimum of 500 hours of training as an instructor or 250 hours of training as a provisional instructor in a licensed school of cosmetology;

      (e) Is licensed as a [manicurist] nail technologist pursuant to this chapter; and

      (f) Has practiced as a full-time licensed [manicurist] nail technologist or as a licensed student instructor for 1 year.

      2.  Except as otherwise provided in subsection 3, an instructor in [manicuring] nail technology shall complete at least 30 hours of advanced training in a course approved by the Board during each 2-year period of his license.

 


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κ2009 Statutes of Nevada, Page 2502 (Chapter 446, AB 202)κ

 

      3.  The provisions of subsection 2 do not apply to an instructor in [manicuring] nail technology who is initially licensed not more than 6 months before the renewal date of the license. An instructor in [manicuring] nail technology who is initially licensed more than 6 months but less than 1 year before the renewal date of the license must take one or more courses specified in subsection 2 whose combined duration is at least 15 hours during each 2-year period.

      Sec. 13.  NRS 644.197 is hereby amended to read as follows:

      644.197  1.  The Board shall admit to examination for a license as an instructor in nail technology any person who has applied to the Board in proper form, paid the fee and:

      (a) Is at least 18 years of age;

      (b) Is of good moral character;

      (c) Has successfully completed the 12th grade in school or its equivalent;

      (d) Has received a minimum of 500 hours of training as an instructor or [250 hours of training] as a licensed provisional instructor in a licensed school of cosmetology;

      (e) Is licensed as a nail technologist pursuant to this chapter; and

      (f) Has practiced as a full-time licensed nail technologist or as a licensed student instructor for 1 year.

      2.  Except as otherwise provided in subsection 3, an instructor in nail technology shall complete at least 30 hours of advanced training in a course approved by the Board during each 2-year period of his license.

      3.  The provisions of subsection 2 do not apply to an instructor in nail technology who is initially licensed not more than 6 months before the renewal date of the license. An instructor in nail technology who is initially licensed more than 6 months but less than 1 year before the renewal date of the license must take one or more courses specified in subsection 2 whose combined duration is at least 15 hours during each 2-year period.

      Sec. 14.  NRS 644.205 is hereby amended to read as follows:

      644.205  The Board shall admit to examination for a license as a [manicurist] nail technologist any person who has made application to the Board in proper form, paid the fee [,] and who , before or on the date of the examination:

      1.  Is not less than 18 years of age.

      2.  Is of good moral character.

      3.  Has successfully completed the 10th grade in school or its equivalent.

      4.  Has had any one of the following:

      (a) Practical training of at least 500 hours under the immediate supervision of a licensed instructor in a licensed school of cosmetology in which the practice is taught.

      (b) Practice as a full-time licensed [manicurist] nail technologist for 1 year outside the State of Nevada.

      Sec. 15.  NRS 644.205 is hereby amended to read as follows:

      644.205  The Board shall admit to examination for a license as a nail technologist any person who has made application to the Board in proper form, paid the fee [,] and who , before or on the date of the examination:

      1.  Is not less than 18 years of age.

      2.  Is of good moral character.

      3.  Has successfully completed the 10th grade in school or its equivalent.

 


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κ2009 Statutes of Nevada, Page 2503 (Chapter 446, AB 202)κ

 

      4.  Has had any one of the following:

      (a) Practical training of at least [500] 600 hours under the immediate supervision of a licensed instructor in a licensed school of cosmetology in which the practice is taught.

      (b) Practice as a full-time licensed nail technologist for 1 year outside the State of Nevada.

      Sec. 16.  NRS 644.207 is hereby amended to read as follows:

      644.207  The Board shall admit to examination for a license as an aesthetician any person who has made application to the Board in proper form, paid the fee and:

      1.  Is at least 18 years of age;

      2.  Is of good moral character;

      3.  Has successfully completed the 10th grade in school or its equivalent; and

      4.  Has received a minimum of [600] 900 hours of training, which includes theory, modeling and practice, in a licensed school of cosmetology or who has practiced as a full-time licensed aesthetician for at least 1 year.

      Sec. 17.  NRS 644.217 is hereby amended to read as follows:

      644.217  1.  The Board may issue a certificate of registration as a cosmetologist’s apprentice to a person if:

      (a) The person is [a resident of a county whose population is less than 50,000;

      (b) The person is] required to travel more than 60 miles from his place of residence to attend a licensed school of cosmetology; and

      [(c)] (b) The training of the person as a cosmetologist’s apprentice will be conducted at a licensed cosmetological establishment that is located [in such a county.] 60 miles or more from a licensed school of cosmetology.

      2.  The Board may, for good cause shown, waive the requirements of subsection 1 for a particular applicant.

      3.  An applicant for a certificate of registration as a cosmetologist’s apprentice must submit an application to the Board on a form prescribed by the Board. The application must be accompanied by a fee of $100 and must include:

      (a) A statement signed by the licensed cosmetologist who will be supervising and training the cosmetologist’s apprentice which states that the licensed cosmetologist has been licensed by the Board to practice cosmetology in this State for not less than 3 years immediately preceding the date of the application and that his license has been in good standing during that period;

      (b) A statement signed by the owner of the licensed cosmetological establishment where the applicant will be trained which states that the owner will permit the applicant to be trained as a cosmetologist’s apprentice at the cosmetological establishment; and

      (c) Such other information as the Board may require by regulation.

      [3.] 4.  A certificate of registration as a cosmetologist’s apprentice is valid for 2 years after the date on which it is issued and may be renewed by the Board upon good cause shown.

      Sec. 18.  NRS 644.220 is hereby amended to read as follows:

      644.220  1.  In addition to the fee for an application, the fees for examination are:

      (a) For examination as a cosmetologist, not less than $75 and not more than $200.

 


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κ2009 Statutes of Nevada, Page 2504 (Chapter 446, AB 202)κ

 

      (b) For examination as an electrologist, not less than $75 and not more than $200.

      (c) For examination as a hair designer, not less than $75 and not more than $200.

      (d) For examination as a [manicurist,] nail technologist, not less than $75 and not more than $200.

      (e) For examination as an aesthetician, not less than $75 and not more than $200.

      (f) For examination as an instructor of aestheticians, hair designers, cosmetology or [manicuring,] nail technology, not less than $75 and not more than $200.

Κ The fee for each reexamination is not less than $75 and not more than $200.

      2.  In addition to the fee for an application, the fee for examination or reexamination as a demonstrator of cosmetics is $75.

      3.  Each applicant referred to in subsections 1 and 2 shall, in addition to the fees specified therein, pay the reasonable value of all supplies necessary to be used in the examination.

      Sec. 19.  NRS 644.240 is hereby amended to read as follows:

      644.240  Examinations for licensure as a cosmetologist may include:

      1.  Practical demonstrations in shampooing the hair, hairdressing, styling of hair, finger waving, coloring of hair, [manicuring,] nail technology, cosmetics, thermal curling, marcelling, facial massage, massage of the scalp with the hands, and cutting, trimming or shaping hair;

      2.  Written or oral tests on:

      (a) Antisepsis, sterilization and sanitation;

      (b) The use of mechanical apparatus and electricity as applicable to the practice of a cosmetologist; and

      (c) The laws of Nevada and the regulations of the Board relating to the practice of cosmetology; and

      3.  Such other demonstrations and tests as the Board may require.

      Sec. 20.  NRS 644.245 is hereby amended to read as follows:

      644.245  The examination for a license as a [manicurist] nail technologist may include:

      1.  Practical demonstrations in manicuring, pedicuring or the wrapping or extension of nails;

      2.  Written and oral tests on:

      (a) Antisepsis, sterilization and sanitation;

      (b) The use of mechanical apparatus and electricity in caring for the nails; and

      (c) The laws of Nevada and regulations of the Board relating to cosmetology; and

      3.  Such other demonstrations and tests as the Board requires.

      Sec. 21.  NRS 644.260 is hereby amended to read as follows:

      644.260  The Board shall issue a license as a cosmetologist, aesthetician, electrologist, hair designer, [manicurist,] nail technologist, demonstrator of cosmetics or instructor to each applicant who:

      1.  Passes a satisfactory examination, conducted by the Board to determine his fitness to practice that occupation of cosmetology; and

      2.  Complies with such other requirements as are prescribed in this chapter for the issuance of the license.

 


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κ2009 Statutes of Nevada, Page 2505 (Chapter 446, AB 202)κ

 

      Sec. 22.  NRS 644.300 is hereby amended to read as follows:

      644.300  Every licensed [manicurist,] nail technologist, electrologist, aesthetician, hair designer, demonstrator of cosmetics or cosmetologist shall, within 30 days after changing his place of business, as designated in the records of the Board, notify the Secretary of the Board of his new place of business. Upon receipt of the notification, the Secretary shall make the necessary change in the records.

      Sec. 23.  NRS 644.320 is hereby amended to read as follows:

      644.320  1.  The license of every cosmetologist, aesthetician, electrologist, hair designer, [manicurist,] nail technologist, demonstrator of cosmetics and instructor expires:

      (a) If the last name of the licensee begins with the letter “A” through the letter “M,” on the date of birth of the licensee in the next succeeding odd-numbered year or such other date in that year as specified by the Board.

      (b) If the last name of the licensee begins with the letter “N” through the letter “Z,” on the date of birth of the licensee in the next succeeding even-numbered year or such other date in that year as specified by the Board.

      2.  The Board shall adopt regulations governing the proration of the fee required for initial licenses issued for less than 1 1/2 years.

      Sec. 24.  NRS 644.325 is hereby amended to read as follows:

      644.325  1.  An application for renewal of any license issued pursuant to this chapter must be:

      (a) Made on a form prescribed and furnished by the Board;

      (b) Made on or before the date for renewal specified by the Board;

      (c) Accompanied by the fee for renewal; and

      (d) Accompanied by all information required to complete the renewal.

      2.  The fees for renewal are:

      (a) For [manicurists,] nail technologists, electrologists, aestheticians, hair designers, demonstrators of cosmetics and cosmetologists, not less than $50 and not more than $100.

      (b) For instructors, not less than $60 and not more than $100.

      (c) For cosmetological establishments, not less than $100 and not more than $200.

      (d) For schools of cosmetology, not less than $500 and not more than $800.

      3.  For each month or fraction thereof after the date for renewal specified by the Board in which a license is not renewed, there must be assessed and collected at the time of renewal a penalty of $50 for a school of cosmetology and $20 for a cosmetological establishment and all persons licensed pursuant to this chapter.

      4.  An application for the renewal of a license as a cosmetologist, hair designer, aesthetician, electrologist, [manicurist,] nail technologist, demonstrator of cosmetics or instructor must be accompanied by two current photographs of the applicant which are 1 1/2 by 1 1/2 inches. The name and address of the applicant must be written on the back of each photograph.

      Sec. 24.5.  NRS 644.325 is hereby amended to read as follows:

      644.325  1.  An application for renewal of any license issued pursuant to this chapter must be:

      (a) Made on a form prescribed and furnished by the Board;

      (b) Made on or before the date for renewal specified by the Board;

      (c) Accompanied by the fee for renewal; and

      (d) Accompanied by all information required to complete the renewal.

 


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κ2009 Statutes of Nevada, Page 2506 (Chapter 446, AB 202)κ

 

      2.  The fees for renewal are:

      (a) For nail technologists, electrologists, aestheticians, hair designers, demonstrators of cosmetics and cosmetologists, not less than $50 and not more than $100.

      (b) For instructors, not less than $60 and not more than $100.

      (c) For cosmetological establishments, not less than $100 and not more than $200.

      (d) For schools of cosmetology, not less than $500 and not more than $800.

      3.  For each month or fraction thereof after the date for renewal specified by the Board in which a license is not renewed, there must be assessed and collected at the time of renewal a penalty of $50 for a school of cosmetology and $20 for a cosmetological establishment and all persons licensed pursuant to this chapter.

      4.  An application for the renewal of a license as a cosmetologist, hair designer, aesthetician, electrologist, nail technologist, demonstrator of cosmetics or instructor must be accompanied by two current photographs of the applicant which are 1 1/2 by 1 1/2 inches. The name and address of the applicant must be written on the back of each photograph.

      5.  Before a person applies for the renewal of a license on or after January 1, 2011, as a cosmetologist, hair designer, aesthetician, electrologist, nail technologist or demonstrator of cosmetics, the person must complete at least 4 hours of instruction relating to infection control in a professional course or seminar approved by the Board.

      Sec. 25.  (Deleted by amendment.)

      Sec. 26.  NRS 644.330 is hereby amended to read as follows:

      644.330  1.  A [manicurist,] nail technologist, electrologist, aesthetician, hair designer, cosmetologist, demonstrator of cosmetics or instructor whose license has expired may have his license renewed only upon payment of all required fees and submission of all information required to complete the renewal.

      2.  Any [manicurist,] nail technologist, electrologist, aesthetician, hair designer, cosmetologist, demonstrator of cosmetics or instructor who retires from practice for more than 1 year may have his license restored only upon payment of all required fees and submission of all information required to complete the restoration.

      3.  No [manicurist,] nail technologist, electrologist, aesthetician, hair designer, cosmetologist, demonstrator of cosmetics or instructor who has retired from practice for more than 4 years may have his license restored without examination and must comply with any additional requirements established in regulations adopted by the Board.

      Sec. 27.  NRS 644.360 is hereby amended to read as follows:

      644.360  1.  Every holder of a license issued by the Board to operate a cosmetological establishment shall display the license in plain view of members of the general public in the principal office or place of business of the holder.

      2.  Except as otherwise provided in this section, the operator of a cosmetological establishment may lease space to or employ only licensed [manicurists,] nail technologists, electrologists, aestheticians, hair designers, demonstrators of cosmetics and cosmetologists at his establishment to provide cosmetological services. This subsection does not prohibit an operator of a cosmetological establishment from:

 


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      (a) Leasing space to or employing a barber. Such a barber remains under the jurisdiction of the State Barbers’ Health and Sanitation Board and remains subject to the laws and regulations of this State applicable to his business or profession.

      (b) Leasing space to any other professional, including, without limitation, a provider of health care pursuant to subsection 3. Each such professional remains under the jurisdiction of the regulatory body which governs his business or profession and remains subject to the laws and regulations of this State applicable to his business or profession.

      3.  The operator of a cosmetological establishment may lease space at his cosmetological establishment to a provider of health care for the purpose of providing health care within the scope of his practice. The provider of health care shall not use the leased space to provide such health care at the same time a cosmetologist uses that space to engage in the practice of cosmetology. A provider of health care who leases space at a cosmetological establishment pursuant to this subsection remains under the jurisdiction of the regulatory body which governs his business or profession and remains subject to the laws and regulations of this State applicable to his business or profession.

      4.  As used in this section:

      (a) “Provider of health care” means a person who is licensed, certified or otherwise authorized by the law of this State to administer health care in the ordinary course of business or practice of a profession.

      (b) “Space” includes, without limitation, a separate room in the cosmetological establishment.

      Sec. 28.  NRS 644.370 is hereby amended to read as follows:

      644.370  A cosmetological establishment must, at all times, be under the immediate supervision of a licensed [manicurist,] nail technologist, electrologist, aesthetician, hair designer or cosmetologist.

      Sec. 29.  NRS 644.408 is hereby amended to read as follows:

      644.408  A student must receive the following minimum amount of instruction in the classroom before commencing work on members of the public:

      1.  A student enrolled as a cosmetologist must receive at least 300 hours.

      2.  A student enrolled as a hair designer must receive at least 300 hours.

      3.  A student enrolled as a [manicurist] nail technologist must receive at least 100 hours.

      4.  A student enrolled as an electrologist’s apprentice must receive at least 150 hours.

      5.  A student enrolled as an aesthetician must receive at least [120] 150 hours.

      Sec. 30.  NRS 644.430 is hereby amended to read as follows:

      644.430  1.  The following are grounds for disciplinary action by the Board:

      (a) Failure of an owner of a cosmetological establishment, a licensed aesthetician, cosmetologist, hair designer, electrologist, instructor, [manicurist,] nail technologist, demonstrator of cosmetics or school of cosmetology, or a cosmetologist’s apprentice to comply with the requirements of this chapter or the applicable regulations adopted by the Board.

      (b) Obtaining practice in cosmetology or any branch thereof, for money or any thing of value, by fraudulent misrepresentation.

 


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      (c) Gross malpractice.

      (d) Continued practice by a person knowingly having an infectious or contagious disease.

      (e) Drunkenness or the use or possession, or both, of a controlled substance or dangerous drug without a prescription, while engaged in the practice of cosmetology.

      (f) Advertisement by means of knowingly false or deceptive statements.

      (g) Permitting a license to be used where the holder thereof is not personally, actively and continuously engaged in business.

      (h) Failure to display the license as provided in NRS 644.290, 644.360 and 644.410.

      (i) Entering, by a school of cosmetology, into an unconscionable contract with a student of cosmetology.

      (j) Continued practice of cosmetology or operation of a cosmetological establishment or school of cosmetology after the license therefor has expired.

      (k) Any other unfair or unjust practice, method or dealing which, in the judgment of the Board, may justify such action.

      2.  If the Board determines that a violation of this section has occurred, it may:

      (a) Refuse to issue or renew a license;

      (b) Revoke or suspend a license;

      (c) Place the licensee on probation for a specified period;

      (d) Impose a fine not to exceed $2,000; or

      (e) Take any combination of the actions authorized by paragraphs (a) to (d), inclusive.

      3.  An order that imposes discipline and the findings of fact and conclusions of law supporting that order are public records.

      Sec. 30.5.  On or before February 1, 2011, the State Board of Cosmetology shall prepare and submit to the Director of the Legislative Counsel Bureau for transmittal to the Legislature a report concerning the practice of threading in this State. The report must include, without limitation:

      1.  An overview of the practice of threading in this State;

      2.  An analysis of any health issues relating to the practice of threading;

      3.  The extent to which the practice of threading is or should be regulated in this State;

      4.  Any recommendations for legislation relating to the practice of threading; and

      5.  Any other information required by the Board.

      Sec. 31.  1.  This section and sections 1 to 9, inclusive, 12, 14, 17 to 24, inclusive, and 26 to 30.5, inclusive, of this act become effective upon passage and approval.

      2.  Sections 10, 11, 13, 15 and 16 of this act become effective on July 1, 2010.

      3.  Section 24.5 of this act becomes effective on January 1, 2011.

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κ2009 Statutes of Nevada, Page 2509κ

 

CHAPTER 447, AB 259

Assembly Bill No. 259–Committee on Corrections, Parole, and Probation

 

CHAPTER 447

 

AN ACT relating to criminal offenders; revising provisions relating to the residential confinement of certain offenders; authorizing a court to provide for the forfeiture of credits for good behavior of a probationer under certain circumstances; revising provisions concerning certain credits to be applied to a period of probation or parole; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Existing law provides that an offender who has been convicted of a category B felony is not eligible for residential confinement. Section 1 of this bill requires the standards adopted by the Director of the Department of Corrections concerning eligibility for residential confinement to provide that an offender who has been convicted of a category B felony is eligible for residential confinement if: (1) the offender is not otherwise ineligible for residential confinement; and (2) the Director makes a written finding that assigning the offender to residential confinement is not likely to pose a threat to the safety of the public. (NRS 209.392)

      Existing law authorizes the State Board of Parole Commissioners to provide for the forfeiture of credits for good behavior of a parolee who violates a condition of his parole and, as appropriate, for the restoration of such credits. Section 4 of this bill authorizes a court to provide for the forfeiture of credits for good behavior of a probationer who violates a condition of his probation and, as appropriate, for the restoration of such credits.

      Existing law provides that an offender who is sentenced to serve a period of probation for a felony and who demonstrates certain good behavior must be allowed certain deductions from his period of probation. Section 5 of this bill amends existing law to provide generally that a person who is sentenced to a period of probation for a felony or a gross misdemeanor and who is in compliance with the terms and conditions of his probation must be allowed a deduction from his period of probation of: (1) ten days for each month he serves and is current on any fee to defray the cost of his supervision and on any fines, fees and restitution ordered by the court; and (2) an additional 10 days for each month he serves and is actively involved in employment or enrolled in certain programs. (NRS 176A.500)

      Existing law authorizes a court to order a probationer who violates a condition of his probation to a term of residential confinement and to direct the person to be confined, for not more than 6 months, to a community correctional center, conservation camp, facility of minimum security or other place of confinement operated by the Department of Corrections for the custody, care or training of offenders, other than a prison designed to house 125 or more offenders within a secure perimeter. Section 6 of this bill authorizes a court to direct such a person who was placed on probation for a felony conviction to be confined to any of those facilities and institutions, including a prison designed to house 125 or more offenders within a secure perimeter. Further, section 6 of this bill authorizes the Department of Corrections to select the facility or institution in which to place the person. (NRS 176A.660)

      Section 3 of this bill amends chapter 213 of NRS, which governs parolees in a manner similar to section 6 of this bill. Section 3 provides that a parolee who is returned to confinement in a facility or institution of the Department of Corrections is authorized to earn credits to reduce his sentence pursuant to chapter 209 of NRS, with the exception of certain credits which are earned by an offender who is released on parole. (NRS 213.152)

 


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κ2009 Statutes of Nevada, Page 2510 (Chapter 447, AB 259)κ

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 209.392 is hereby amended to read as follows:

      209.392  1.  Except as otherwise provided in NRS 209.3925 and 209.429, the Director may, at the request of an offender who is eligible for residential confinement pursuant to the standards adopted by the Director pursuant to subsection 3 and who has:

      (a) Demonstrated a willingness and ability to establish a position of employment in the community;

      (b) Demonstrated a willingness and ability to enroll in a program for education or rehabilitation; or

      (c) Demonstrated an ability to pay for all or part of the costs of his confinement and to meet any existing obligation for restitution to any victim of his crime,

Κ assign the offender to the custody of the Division of Parole and Probation of the Department of Public Safety to serve a term of residential confinement, pursuant to NRS 213.380, for not longer than the remainder of his sentence.

      2.  Upon receiving a request to serve a term of residential confinement from an eligible offender, the Director shall notify the Division of Parole and Probation. If any victim of a crime committed by the offender has, pursuant to subsection 4 of NRS 213.130, requested to be notified of the consideration of a prisoner for parole and has provided a current address, the Division of Parole and Probation shall notify the victim of the offender’s request and advise the victim that he may submit documents regarding the request to the Division of Parole and Probation. If a current address has not been provided as required by subsection 4 of NRS 213.130, the Division of Parole and Probation must not be held responsible if such notification is not received by the victim. All personal information, including, but not limited to, a current or former address, which pertains to a victim and which is received by the Division of Parole and Probation pursuant to this subsection is confidential.

      3.  The Director, after consulting with the Division of Parole and Probation, shall adopt, by regulation, standards providing which offenders are eligible for residential confinement. The standards adopted by the Director must provide that an offender who:

      (a) Has recently committed a serious infraction of the rules of an institution or facility of the Department;

      (b) Has not performed the duties assigned to him in a faithful and orderly manner;

      (c) Has been convicted of:

            (1) Any crime that is punishable as a felony involving the use or threatened use of force or violence against the victim within the immediately preceding 3 years;

            (2) A sexual offense that is punishable as a felony; or

            (3) [A] Except as otherwise provided in subsection 4, a category A or B felony;

      (d) Has more than one prior conviction for any felony in this State or any offense in another state that would be a felony if committed in this State, not including a violation of NRS 484.379, 484.3795, 484.37955 or 484.379778; or

 


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      (e) Has escaped or attempted to escape from any jail or correctional institution for adults,

Κ is not eligible for assignment to the custody of the Division of Parole and Probation to serve a term of residential confinement pursuant to this section.

      4.  The standards adopted by the Director pursuant to subsection 3 must provide that an offender who has been convicted of a category B felony is eligible for assignment to the custody of the Division of Parole and Probation to serve a term of residential confinement pursuant to this section if:

      (a) The offender is not otherwise ineligible pursuant to subsection 3 for an assignment to serve a term of residential confinement; and

      (b) The Director makes a written finding that such an assignment of the offender is not likely to pose a threat to the safety of the public.

      5.  If an offender assigned to the custody of the Division of Parole and Probation pursuant to this section escapes or violates any of the terms or conditions of his residential confinement:

      (a) The Division of Parole and Probation may, pursuant to the procedure set forth in NRS 213.410, return the offender to the custody of the Department.

      (b) The offender forfeits all or part of the credits for good behavior earned by him before the escape or violation, as determined by the Director. The Director may provide for a forfeiture of credits pursuant to this paragraph only after proof of the offense and notice to the offender and may restore credits forfeited for such reasons as he considers proper. The decision of the Director regarding such a forfeiture is final.

      [5.] 6.  The assignment of an offender to the custody of the Division of Parole and Probation pursuant to this section shall be deemed:

      (a) A continuation of his imprisonment and not a release on parole; and

      (b) For the purposes of NRS 209.341, an assignment to a facility of the Department,

Κ except that the offender is not entitled to obtain any benefits or to participate in any programs provided to offenders in the custody of the Department.

      [6.] 7.  An offender does not have a right to be assigned to the custody of the Division of Parole and Probation pursuant to this section, or to remain in that custody after such an assignment, and it is not intended that the provisions of this section or of NRS 213.371 to 213.410, inclusive, create any right or interest in liberty or property or establish a basis for any cause of action against the State, its political subdivisions, agencies, boards, commissions, departments, officers or employees.

      Sec. 2.  (Deleted by amendment.)

      Sec. 3.  NRS 213.152 is hereby amended to read as follows:

      213.152  1.  Except as otherwise provided in subsection [6,] 7, if a parolee violates a condition of his parole, the Board may order him to a term of residential confinement in lieu of suspending his parole and returning him to confinement. In making this determination, the Board shall consider the criminal record of the parolee and the seriousness of the crime committed.

      2.  In ordering the parolee to a term of residential confinement, the Board shall:

 


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κ2009 Statutes of Nevada, Page 2512 (Chapter 447, AB 259)κ

 

      (a) Require:

            (1) The parolee to be confined to his residence during the time he is away from his employment, community service or other activity authorized by the Division; and

            (2) Intensive supervision of the parolee, including, without limitation, unannounced visits to his residence or other locations where he is expected to be in order to determine whether he is complying with the terms of his confinement; or

      (b) Require the parolee to be confined to a facility or institution of the Department of Corrections [approved by the Board] for a period not to exceed 6 months. The Department may select the facility or institution in which to place the parolee.

      3.  An electronic device approved by the Division may be used to supervise a parolee ordered to a term of residential confinement. The device must be minimally intrusive and limited in capability to recording or transmitting information concerning the presence of the parolee at his residence, including, but not limited to, the transmission of still visual images which do not concern the activities of the person while inside his residence. A device which is capable of recording or transmitting:

      (a) Oral or wire communications or any auditory sound; or

      (b) Information concerning the activities of the parolee while inside his residence,

Κ must not be used.

      4.  A parolee who is confined to a facility or institution of the Department of Corrections pursuant to paragraph (b) of subsection 2:

      (a) May earn credits to reduce his sentence pursuant to chapter 209 of NRS; and

      (b) Shall not be deemed to be released on parole for purposes of NRS 209.447 or 209.4475 during the period of that confinement.

      5.  The Board shall not order a parolee to a term of residential confinement unless he agrees to the order.

      [5.] 6.  A term of residential confinement may not be longer than the unexpired maximum term of the original sentence of the parolee.

      [6.] 7.  The Board shall not order a parolee who is serving a sentence for committing a battery which constitutes domestic violence pursuant to NRS 33.018 to a term of residential confinement unless the Board makes a finding that the parolee is not likely to pose a threat to the victim of the battery.

      [7.] 8.  As used in this section [, “facility”] :

      (a) “Facility” has the meaning ascribed to it in NRS 209.065.

      (b) “Institution” has the meaning ascribed to it in NRS 209.071.

      Sec. 4.  Chapter 176A of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  If a court before which a probationer is brought pursuant to NRS 176A.630 determines that the probationer has violated a condition of his probation, the probationer forfeits all or part of the credits for good behavior earned by him pursuant to NRS 176A.500 during his probation, in the discretion of the court.

      2.  A forfeiture may be made only by the court after proof of the violation and notice to the probationer.

      3.  The court may restore credits forfeited for such reasons as it considers proper.

 


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κ2009 Statutes of Nevada, Page 2513 (Chapter 447, AB 259)κ

 

      4.  If the court provides for the forfeiture or restoration of credits for good behavior of a probationer pursuant to this section, the clerk of the court shall notify the Chief Parole and Probation Officer of the forfeiture or restoration of credits.

      Sec. 5.  NRS 176A.500 is hereby amended to read as follows:

      176A.500  1.  The period of probation or suspension of sentence may be indeterminate or may be fixed by the court and may at any time be extended or terminated by the court, but the period, including any extensions thereof, must not be more than:

      (a) Three years for a:

            (1) Gross misdemeanor; or

            (2) Suspension of sentence pursuant to NRS 176A.260 or 453.3363; or

      (b) Five years for a felony.

      2.  At any time during probation or suspension of sentence, the court may issue a warrant for violating any of the conditions of probation or suspension of sentence and cause the defendant to be arrested. Except for the purpose of giving a dishonorable discharge from probation, and except as otherwise provided in this subsection, the time during which a warrant for violating any of the conditions of probation is in effect is not part of the period of probation. If the warrant is cancelled or probation is reinstated, the court may include any amount of that time as part of the period of probation.

      3.  Any parole and probation officer or any peace officer with power to arrest may arrest a probationer without a warrant, or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the probationer has, in the judgment of the parole and probation officer, violated the conditions of probation. Except as otherwise provided in subsection 4, the parole and probation officer, or the peace officer, after making an arrest shall present to the detaining authorities, if any, a statement of the charges against the probationer. The parole and probation officer shall at once notify the court which granted probation of the arrest and detention or residential confinement of the probationer and shall submit a report in writing showing in what manner the probationer has violated the conditions of probation.

      4.  A parole and probation officer or a peace officer may immediately release from custody without any further proceedings any person he arrests without a warrant for violating a condition of probation if the parole and probation officer or peace officer determines that there is no probable cause to believe that the person violated the condition of probation.

      5.  [An offender] A person who is sentenced to serve a period of probation for a felony [who has no serious infraction of the regulations of the Division, the terms and conditions of his probation or the laws of the State recorded against him, and who performs in a faithful, orderly and peaceable manner the duties assigned to him,] or a gross misdemeanor must be allowed for the period of his probation a deduction [of 20] as set forth in subsection 6 if the offender is in compliance with the terms and conditions of his probation as determined by the Division and is:

      (a) Current with any fee to defray the cost of his supervision charged pursuant to NRS 213.1076 and with any fines, fees and restitution ordered by the court, including, without limitation, any payment of restitution required pursuant to NRS 176A.430; and

 


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κ2009 Statutes of Nevada, Page 2514 (Chapter 447, AB 259)κ

 

      (b) Actively involved in employment or enrolled in a program of education, rehabilitation or any other program approved by the Division.

      6.  A person described in subsection 5 must be allowed for the period of his probation a deduction of:

      (a) Ten days from that period for each month he serves [.] and is current on any fees to defray the cost of his supervision owed and on any fines, fees and restitution ordered by the court; and

      (b) Except as otherwise provided in subsection 7, an additional 10 days from that period for each month he serves and is actively involved in employment or enrolled in a program of education, rehabilitation or any other program approved by the Division.

      7.  A person who is sentenced to serve a period of probation for a felony or a gross misdemeanor and who is a participant in a specialty court program must be allowed a deduction from the period of probation for being actively involved in employment or enrolled in a program of education, rehabilitation or any other program approved by the Division only if the person successfully completes the specialty court program. Such a deduction must not exceed the length of time remaining on the person’s period of probation.

      8.  As used in this section, “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 mental illnesses or abuse alcohol or drugs. Such a program includes, without limitation, a program established pursuant to NRS 176A.250 or 453.580.

      Sec. 6.  NRS 176A.660 is hereby amended to read as follows:

      176A.660  1.  If a person who has been placed on probation violates a condition of his probation, the court may order him to a term of residential confinement in lieu of causing the sentence imposed to be executed. In making this determination, the court shall consider the criminal record of the person and the seriousness of the crime committed.

      2.  In ordering the person to a term of residential confinement, the court shall:

      (a) Direct that he be placed under the supervision of the Division and require:

            (1) The person to be confined to his residence during the time he is away from his employment, community service or other activity authorized by the Division; and

            (2) Intensive supervision of the person, including, without limitation, unannounced visits to his residence or other locations where he is expected to be in order to determine whether he is complying with the terms of his confinement; or

      (b) [Direct] If the person was placed on probation for a felony conviction, direct that he be placed under the supervision of the Department of Corrections and require the person to be confined to a facility or institution of the Department [approved by the Division and the court] for a period not to exceed 6 months. The Department may select the facility or institution in which to place the person.

 


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κ2009 Statutes of Nevada, Page 2515 (Chapter 447, AB 259)κ

 

      3.  An electronic device approved by the Division may be used to supervise a person ordered to a term of residential confinement. The device must be minimally intrusive and limited in capability to recording or transmitting information concerning the person’s presence at his residence, including, but not limited to, the transmission of still visual images which do not concern the person’s activities while inside his residence. A device which is capable of recording or transmitting:

      (a) Oral or wire communications or any auditory sound; or

      (b) Information concerning the person’s activities while inside his residence,

Κ must not be used.

      4.  The court shall not order a person to a term of residential confinement unless he agrees to the order.

      5.  A term of residential confinement may not be longer than the maximum term of a sentence imposed by the court.

      6.  As used in this section [, “facility”] :

      (a) “Facility” has the meaning ascribed to it in NRS 209.065.

      (b) “Institution” has the meaning ascribed to it in NRS 209.071.

      Sec. 7.  1.  The amendatory provisions of this act apply to offenses committed before, on or after July 1, 2009.

      2.  For the purpose of calculating credits earned by a person pursuant to NRS 213.152, the amendatory provisions of section 3 of this act must be applied to credits earned by the person before, on or after July 1, 2009.

      3.  For the purpose of calculating credits earned by a person pursuant to NRS 176A.500, the amendatory provisions of section 5 of this act must be applied only to credits earned by the person on or after July 1, 2009.

      Sec. 8.  This act becomes effective on July 1, 2009.

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κ2009 Statutes of Nevada, Page 2516κ

 

CHAPTER 448, AB 317

Assembly Bill No. 317–Assemblyman Oceguera

 

CHAPTER 448

 

AN ACT relating to taxation; providing for the disbursement of a portion of the proceeds of the state tax imposed on certain businesses to regional organizations for economic development; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      This bill temporarily requires the Department of Taxation to disburse to a regional organization for economic development which directly assists in the location of a business in this State, other than a gaming business, 50 percent of the state business tax paid by that business for not more than 10 fiscal years as a result of the location of the business in this State. The money disbursed to such a regional organization must be used to promote economic development in this State and not for administrative expenses.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 363B of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  Except as otherwise provided in this section, the Department shall, on a quarterly basis, disburse to an eligible organization 50 percent of the amount of tax paid by an employer pursuant to NRS 363B.110, after the deduction of any abatements and exemptions to which that employer is entitled, which is attributable to any employment that results from the location, with the direct assistance of that eligible organization, of the business of that employer in this State. The provisions of this subsection apply only to the applicable amount of tax paid by the employer for each calendar quarter that:

      (a) Commences not less than 30 days after the eligible organization files with the Department an affidavit, executed by an officer of the employer and an officer of the eligible organization, stating that the eligible organization directly recruited the employer to locate its business in this State or otherwise directly assisted the employer to locate its business in this State; and

      (b) Ends not later than the last day of the 10th fiscal year after the commencement of the pertinent location by the employer of its business in this State.

      2.  The total amount disbursed during each fiscal year pursuant to this section to:

      (a) Each eligible organization located in a county whose population is 100,000 or more, together with any other amounts allocated or appropriated by the Legislature to the eligible organization for that fiscal year, must not exceed the sum of $1,000,000; and

      (b) All other eligible organizations must not exceed the cumulative sum of $1,000,000, without regard to any other amounts allocated or appropriated by the Legislature to those eligible organizations for that fiscal year.

 


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κ2009 Statutes of Nevada, Page 2517 (Chapter 448, AB 317)κ

 

      3.  Any money disbursed to an eligible organization pursuant to this section:

      (a) Must be expended by the eligible organization to promote the advantages of locating or expanding businesses in this State, to recruit and attract businesses from outside this State, to retain and expand businesses in this State, and to engage in research and analysis in support of economic development in this State; and

      (b) Must not be expended for any administrative expenses of the eligible organization.

      4.  The Department:

      (a) May:

            (1) Require an eligible organization to submit such documentation as the Department determines to be necessary for the administration of this section.

            (2) Refuse to make any further disbursements of money pursuant to this section to an eligible organization that:

                  (I) Fails or refuses to submit any documentation as required by the Department pursuant to subparagraph (1); or

                  (II) Expends any money received pursuant to this section in a manner that does not comply with the requirements of subsection 3.

      (b) Shall, on or before the last day of the month immediately following each calendar quarter, submit to the Interim Finance Committee a report which:

            (1) States the total amount of money disbursed pursuant to this section for each of the immediately preceding 4 calendar quarters; and

            (2) Identifies each eligible organization to which any money was disbursed pursuant to this section for any of the immediately preceding 4 calendar quarters and states the total amount of money disbursed to each of those eligible organizations for each of the those calendar quarters.

      5.  Each eligible organization that receives any disbursement of money pursuant to this section for a calendar quarter shall, within 30 days after receiving that disbursement, submit to the Interim Finance Committee a report which:

      (a) Identifies each of the employers regarding whom the disbursement was received, identifies the type of business or industry conducted by the employer, and states the number of persons employed by the employer in this State during that calendar quarter and the average weekly wages paid to those persons during that calendar quarter; and

      (b) Summarizes the manner in which the eligible organization has expended or intends to expend the amount of that disbursement.

      6.  Any disbursement of money to an eligible organization pursuant to this section shall be deemed to constitute an appropriation of public money for the purposes of NRS 218.855.

      7.  For the purposes of this section:

      (a) “Eligible organization” means a regional organization for economic development which is recognized by the Commission on Economic Development and which:

            (1) Operates on a nonprofit basis;

            (2) Receives funding from dues paid by the members of the organization; and

            (3) Does not constitute a government, governmental agency or political subdivision of a government.

 


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κ2009 Statutes of Nevada, Page 2518 (Chapter 448, AB 317)κ

 

      (b) “Employer” does not include any employer who is required to hold a license issued by the Nevada Gaming Commission pursuant to title 41 of NRS.

      Sec. 2.  NRS 363B.060 is hereby amended to read as follows:

      363B.060  The Department shall:

      1.  Administer and enforce the provisions of this chapter, and may adopt such regulations as it deems appropriate for those purposes.

      2.  [Deposit] Except as otherwise provided in section 1 of this act, deposit all taxes, interest and penalties it receives pursuant to this chapter in the State Treasury for credit to the State General Fund.

      Sec. 3.  This act becomes effective on July 1, 2009, and expires by limitation on June 30, 2011.

________

 

CHAPTER 449, AB 320

Assembly Bill No. 320–Assemblymen Pierce, McClain, Bobzien, Ohrenschall; Atkinson, Buckley, Conklin, Denis, Goedhart, Kihuen, Leslie, Manendo, Oceguera and Segerblom

 

Joint Sponsor: Senator Parks

 

CHAPTER 449

 

AN ACT relating to guardianships; requiring additional information in a petition for appointment of a guardian under certain circumstances; requiring that a proposed adult ward be advised of his right to counsel; revising provisions relating to the attendance of a proposed adult ward at a guardianship hearing; requiring a guardian to petition a court before moving a ward into certain residential facilities under certain circumstances; making various other changes relating to guardianships; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 3 of this bill requires that a petitioner for the appointment of a guardian for a proposed adult ward provide the court with an assessment completed by a licensed physician of the proposed adult ward’s needs and limitations in capacity before the court makes a final order in the case. (NRS 159.044)

      Section 4 of this bill provides that a proposed adult ward must be advised of his right to counsel in the guardianship proceeding and requires that certain information or responses provided by the adult ward relating to his right to counsel and to the proceeding be transmitted to the court. (NRS 159.0485)

      Existing law provides that a proposed ward found in this State must attend a hearing for the appointment of a guardian unless a certificate is signed indicating the reasons the proposed ward cannot appear. (NRS 159.0535) Section 5 of this bill provides that a proposed ward who is unable to attend a hearing for the appointment of a general or special guardian may attend by videoconference. Section 5 further provides that if a proposed ward is an adult and cannot attend the hearing or appear by videoconference, the court must have the person who signs the certificate to excuse the proposed adult ward from attending the hearing meet with the proposed adult ward and report back to the court regarding the proposed adult ward’s desire for representation at the hearing, preferences if a guardianship is imposed and any information the person believes may have limited any of the proposed adult ward’s responses.

 


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κ2009 Statutes of Nevada, Page 2519 (Chapter 449, AB 320)κ

 

      Existing law provides that a guardian must file with the court annually, or at such other times the court deems appropriate, a written report on the condition of the ward and the exercise of authority and the performance of duties by the guardian. (NRS 159.081) Section 6 of this bill: (1) provides that a guardian must also file with the court a report within 10 days of moving a ward to a secured residential long-term care facility; and (2) authorizes the court to determine the form and contents of such a report.

      Section 7 of this bill requires a guardian to petition the court and receive the court’s consent before moving a ward into a secured residential long-term care facility. However, a guardian does not need to petition the court if the court has already granted the guardian the authority to move the ward to such a facility or if a licensed physician, a physician employed by the Department of Veterans Affairs, a licensed social worker or an employee of the county’s office of protective services recommends the transfer in writing. (NRS 159.113)

      Section 8 of this bill makes a technical correction to section 27 of Senate Bill No. 277 of this session, which establishes the allowable compensation of an attorney of a personal representative. (NRS 150.060)

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 159 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  “Secured residential long-term care facility” means a residential facility providing long-term care that is designed to restrict a resident of the facility from leaving the facility, a part of the facility or the grounds of the facility through the use of locks or other mechanical means unless the resident is accompanied by a staff member of the facility or another person authorized by the facility or the guardian.

      2.  The term does not include a residential facility providing long-term care which uses procedures or mechanisms only to track the location or actions of a resident or to assist a resident to perform the normal activities of daily living.

      Sec. 2.  NRS 159.013 is hereby amended to read as follows:

      159.013  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 159.014 to 159.027, inclusive, and section 1 of this act, have the meanings ascribed to them in those sections.

      Sec. 3.  NRS 159.044 is hereby amended to read as follows:

      159.044  1.  Except as otherwise provided in NRS 127.045, a proposed ward, a governmental agency, a nonprofit corporation or any interested person may petition the court for the appointment of a guardian.

      2.  To the extent the petitioner knows or reasonably may ascertain or obtain, the petition must include, without limitation:

      (a) The name and address of the petitioner.

      (b) The name, date of birth and current address of the proposed ward.

      (c) A copy of one of the following forms of identification of the proposed ward which must be placed in the records relating to the guardianship proceeding and, except as otherwise provided in NRS 239.0115 or as otherwise required to carry out a specific statute, maintained in a confidential manner:

            (1) A social security number;

            (2) A taxpayer identification number;

            (3) A valid driver’s license number;

 


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κ2009 Statutes of Nevada, Page 2520 (Chapter 449, AB 320)κ

 

            (4) A valid identification card number; or

            (5) A valid passport number.

Κ If the information required pursuant to this paragraph is not included with the petition, the information must be provided to the court not later than 120 days after the appointment of a guardian or as otherwise ordered by the court.

      (d) If the proposed ward is a minor, the date on which he will attain the age of majority and:

            (1) Whether there is a current order concerning custody and, if so, the state in which the order was issued; and

            (2) Whether the petitioner anticipates that the proposed ward will need guardianship after attaining the age of majority.

      (e) Whether the proposed ward is a resident or nonresident of this State.

      (f) The names and addresses of the spouse of the proposed ward and the relatives of the proposed ward who are within the second degree of consanguinity.

      (g) The name, date of birth and current address of the proposed guardian. If the proposed guardian is a private professional guardian, the petition must include proof that the guardian meets the requirements of NRS 159.0595. If the proposed guardian is not a private professional guardian, the petition must include a statement that the guardian currently is not receiving compensation for services as a guardian to more than one ward who is not related to the person by blood or marriage.

      (h) A copy of one of the following forms of identification of the proposed guardian which must be placed in the records relating to the guardianship proceeding and, except as otherwise provided in NRS 239.0115 or as otherwise required to carry out a specific statute, maintained in a confidential manner:

            (1) A social security number;

            (2) A taxpayer identification number;

            (3) A valid driver’s license number;

            (4) A valid identification card number; or

            (5) A valid passport number.

      (i) Whether the proposed guardian has ever been convicted of a felony and, if so, information concerning the crime for which he was convicted and whether the proposed guardian was placed on probation or parole.

      (j) A summary of the reasons why a guardian is needed and recent documentation demonstrating the need for a guardianship. The documentation may include, without limitation:

            (1) A certificate signed by a physician who is licensed to practice medicine in this State stating the need for a guardian;

            (2) A letter signed by any governmental agency in this State which conducts investigations stating the need for a guardian; or

            (3) A certificate signed by any other person whom the court finds qualified to execute a certificate stating the need for a guardian.

      (k) Whether the appointment of a general or a special guardian is sought.

      (l) A general description and the probable value of the property of the proposed ward and any income to which the proposed ward is or will be entitled, if the petition is for the appointment of a guardian of the estate or a special guardian. If any money is paid or is payable to the proposed ward by the United States through the Department of Veterans Affairs, the petition must so state.

 


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κ2009 Statutes of Nevada, Page 2521 (Chapter 449, AB 320)κ

 

      (m) The name and address of any person or care provider having the care, custody or control of the proposed ward.

      (n) The relationship, if any, of the petitioner to the proposed ward and the interest, if any, of the petitioner in the appointment.

      (o) Requests for any of the specific powers set forth in NRS 159.117 to 159.175, inclusive, necessary to enable the guardian to carry out the duties of the guardianship.

      (p) Whether the guardianship is sought as the result of an investigation of a report of abuse or neglect that is conducted pursuant to chapter 432B of NRS by an agency which provides child welfare services. As used in this paragraph, “agency which provides child welfare services” has the meaning ascribed to it in NRS 432B.030.

      (q) Whether the proposed ward is a party to any pending criminal or civil litigation.

      (r) Whether the guardianship is sought for the purpose of initiating litigation.

      (s) Whether the proposed ward has executed a durable power of attorney for health care, a durable power of attorney for financial matters or a written nomination of guardian and, if so, who the named agents are for each document.

      3.  Before the court makes a finding pursuant to NRS 159.054, a petitioner seeking a guardian for a proposed adult ward must provide the court with an assessment of the needs of the proposed adult ward completed by a licensed physician which identifies the limitations of capacity of the proposed adult ward and how such limitations affect the ability of the proposed adult ward to maintain his safety and basic needs. The court may prescribe the form in which the assessment of the needs of the proposed adult ward must be filed.

      Sec. 4.  NRS 159.0485 is hereby amended to read as follows:

      159.0485  1.  At the first hearing for the appointment of a guardian for a proposed adult ward, the court shall advise the proposed adult ward who is in attendance at the hearing or who is appearing by videoconference at the hearing of his right to counsel and determine whether the proposed adult ward wishes to be represented by counsel in the guardianship proceeding. If the proposed adult ward is not in attendance at the hearing because the proposed adult ward has been excused pursuant to NRS 159.0535 and is not appearing by videoconference at the hearing, the person who signs the certificate pursuant to NRS 159.0535 to excuse the proposed adult ward from attending the hearing shall advise the proposed adult ward of his right to counsel and determine whether the proposed adult ward wishes to be represented by counsel in the guardianship proceeding.

      2.  If an adult ward or proposed adult ward is unable to retain legal counsel and requests the appointment of counsel, at any stage in a guardianship proceeding and whether or not the adult ward or proposed adult ward lacks or appears to lack capacity, the court shall, at or before the time of the next hearing, appoint an attorney who works for legal aid services, if available, or a private attorney to represent the adult ward or proposed adult ward. The appointed attorney must represent the adult ward or proposed adult ward until relieved of the duty by court order.

      [2.] 3.  Subject to the discretion and approval of the court, the attorney for the adult ward or proposed adult ward is entitled to reasonable compensation which must be paid from the estate of the adult ward or proposed adult ward.

 


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κ2009 Statutes of Nevada, Page 2522 (Chapter 449, AB 320)κ

 

compensation which must be paid from the estate of the adult ward or proposed adult ward. If the court finds that a person has unnecessarily or unreasonably caused the appointment of an attorney, the court may order the person to pay to the estate of the adult ward or proposed adult ward all or part of the expenses associated with the appointment of the attorney.

      Sec. 5.  NRS 159.0535 is hereby amended to read as follows:

      159.0535  1.  A proposed ward who is found in this State must attend the hearing for the appointment of a guardian unless:

      (a) A certificate signed by a physician who is licensed to practice in this State specifically states the condition of the proposed ward, [and] the reasons why the proposed ward is unable to appear in court [;] and whether the proposed ward’s attendance at the hearing would be detrimental to the physical health of the proposed ward; or

      (b) A certificate signed by any other person the court finds qualified to execute a certificate states the condition of the proposed ward, [and] the reasons why the proposed ward is unable to appear in court [.] and whether the proposed ward’s attendance at the hearing would be detrimental to the physical health of the proposed ward.

      2.  A proposed ward found in this State who cannot attend the hearing for the appointment of a general or special guardian as set forth in a certificate pursuant to subsection 1 may appear by videoconference. If the proposed ward is an adult and cannot attend by videoconference, the person who signs the certificate described in subsection 1 shall:

      (a) Inform the proposed adult ward that the petitioner is requesting that the court appoint a guardian for the proposed adult ward;

      (b) Ask the proposed adult ward for a response to the guardianship petition;

      (c) Inform the proposed adult ward of his right to counsel and ask whether the proposed adult ward wishes to be represented by counsel in the guardianship proceeding; and

      (d) Ask the preferences of the proposed adult ward for the appointment of a particular person as his guardian.

      3.  If the proposed ward is an adult, the person who signs the certificate described in subsection 1 shall state in the certificate:

      (a) That the proposed adult ward has been advised of his right to counsel and asked whether he wishes to be represented by counsel in the guardianship proceeding;

      (b) The responses of the proposed adult ward to the questions asked pursuant to subsection 2; and

      (c) Any conditions that the person believes may have limited the responses by the proposed adult ward.

      4.  The court may prescribe the form in which the certificate must be filed. If the certificate consists of separate parts, each part must be signed by a person identified in subsection 1.

      5.  If the proposed ward is not in this State, the proposed ward must attend the hearing only if the court determines that the attendance of the proposed ward is necessary in the interests of justice.

      Sec. 6.  NRS 159.081 is hereby amended to read as follows:

      159.081  1.  A guardian of the person shall make and file in the guardianship proceeding for review of the court a written report on the condition of the ward and the exercise of authority and performance of duties by the guardian:

 


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κ2009 Statutes of Nevada, Page 2523 (Chapter 449, AB 320)κ

 

      (a) Annually, not later than 60 days after the anniversary date of the appointment of the guardian; [and]

      (b) Within 10 days of moving a ward to a secured residential long-term care facility; and

      (c) At such other times as the court may order.

      2.  A report filed pursuant to paragraph (b) of subsection 1 must:

      (a) Include a copy of the written recommendation upon which the transfer was made; and

      (b) Be served, without limitation, on the attorney for the ward, if any.

      3.  The court may prescribe the form and contents for filing a report described in subsection 1.

      4.  The guardian of the person shall give to the guardian of the estate, if any, a copy of each report not later than 30 days after the date the report is filed with the court.

      [3.] 5.  The court is not required to hold a hearing or enter an order regarding the report.

      Sec. 7.  NRS 159.113 is hereby amended to read as follows:

      159.113  1.  Before taking any of the following actions, the guardian shall petition the court for an order authorizing the guardian to:

      (a) Invest the property of the ward pursuant to NRS 159.117.

      (b) Continue the business of the ward pursuant to NRS 159.119.

      (c) Borrow money for the ward pursuant to NRS 159.121.

      (d) Except as otherwise provided in NRS 159.079, enter into contracts for the ward or complete the performance of contracts of the ward pursuant to NRS 159.123.

      (e) Make gifts from the ward’s estate or make expenditures for the ward’s relatives pursuant to NRS 159.125.

      (f) Sell, lease or place in trust any property of the ward pursuant to NRS 159.127.

      (g) Exchange or partition the ward’s property pursuant to NRS 159.175.

      (h) Release the power of the ward as trustee, personal representative or custodian for a minor or guardian.

      (i) Exercise or release the power of the ward as a donee of a power of appointment.

      (j) Change the state of residence or domicile of the ward.

      (k) Exercise the right of the ward to take under or against a will.

      (l) Transfer to a trust created by the ward any property unintentionally omitted from the trust.

      (m) Submit a revocable trust to the jurisdiction of the court if:

            (1) The ward or the spouse of the ward, or both, are the grantors and sole beneficiaries of the income of the trust; or

            (2) The trust was created by the court.

      (n) Pay any claim by the Department of Health and Human Services to recover benefits for Medicaid correctly paid to or on behalf of the ward.

      (o) Except as otherwise provided in subsection 6, move the ward into a secured residential long-term care facility.

      2.  Before taking any of the following actions, unless the guardian has been otherwise ordered by the court to petition the court for permission to take specified actions or make specified decisions in addition to those described in subsection 1, the guardian may petition the court for an order authorizing the guardian to:

 


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κ2009 Statutes of Nevada, Page 2524 (Chapter 449, AB 320)κ

 

      (a) Obtain advice, instructions and approval of any other proposed act of the guardian relating to the ward’s property.

      (b) Take any other action which the guardian deems would be in the best interests of the ward.

      3.  The petition must be signed by the guardian and contain:

      (a) The name, age, residence and address of the ward.

      (b) A concise statement as to the condition of the ward’s estate.

      (c) A concise statement as to the advantage to the ward of or the necessity for the proposed action.

      (d) The terms and conditions of any proposed sale, lease, partition, trust, exchange or investment, and a specific description of any property involved.

      4.  Any of the matters set forth in subsection 1 may be consolidated in one petition, and the court may enter one order authorizing or directing the guardian to do one or more of those acts.

      5.  A petition filed pursuant to paragraphs (b) and (d) of subsection 1 may be consolidated in and filed with the petition for the appointment of the guardian, and if the guardian is appointed, the court may enter additional orders authorizing the guardian to continue the business of the ward, enter contracts for the ward or complete contracts of the ward.

      6.  Without filing a petition pursuant to paragraph (o) of subsection 1, a guardian may move a ward into a secured residential long-term care facility if:

      (a) The court has previously granted the guardian authority to move the ward to such a facility based on findings made when the court appointed the general or special guardian; or

      (b) The transfer is made pursuant to a written recommendation by a licensed physician, a physician employed by the Department of Veterans Affairs, a licensed social worker or an employee of a county’s office for protective services.

      7.  As used in this section, “protective services” has the meaning ascribed to it in NRS 200.5092.

      Sec. 8.  Section 27 of Senate Bill No. 277 of this session is hereby amended to read as follows:

      Sec. 27.  NRS 150.060 is hereby amended to read as follows:

      150.060  1.  Attorneys for personal representatives are entitled to reasonable compensation for their services, to be paid out of the decedent’s estate.

      2.  An attorney for a personal representative may be compensated based on:

      (a) The applicable hourly rate of the attorney;

      (b) The value of the estate accounted for by the personal representative;

      (c) An agreement as set forth in subsection 4 of section 21 of this act; or

      (d) Any other method preapproved by the court pursuant to a request in the initial petition for the appointment of the personal representative.

      3.  If the attorney is requesting compensation based on the hourly rate of the attorney, he may include, as part of that compensation for ordinary services, a charge for legal services or paralegal services performed by a person under his direction and supervision.

 


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κ2009 Statutes of Nevada, Page 2525 (Chapter 449, AB 320)κ

 

      4.  If the attorney is requesting compensation based on the value of the estate accounted for by the personal representative, the allowable compensation of the attorney for ordinary services must be determined as follows:

      (a) For the first $100,000, at the rate of 4 percent;

      (b) For the next $100,000, at the rate of 3 percent;

      (c) For the next $800,000, at the rate of 2 percent;

      (d) For the next $9,000,000, at the rate of 1 percent;

      (e) For the next $15,000,000, at the rate of 0.5 percent; and

      (f) For all amounts above $25,000,000, a reasonable amount to be determined by the court.

      5.  Before an attorney may receive compensation based on the value of the estate accounted for by the personal representative, the personal representative must sign a written agreement as required by subsection 8. The agreement must be prepared by the attorney and must include detailed information, concerning, without limitation:

      (a) The schedule of fees to be charged by the attorney;

      (b) The manner in which compensation for extraordinary services may be charged by the attorney; and

      (c) The fact that the court is required to approve the compensation of the attorney pursuant to subsection 8 before the personal representative pays any such compensation to the attorney.

      6.  For the purposes of determining the compensation of an attorney pursuant to subsection 4, the value of the estate accounted for by the personal representative:

      (a) Is the total amount of the appraisal of property in the inventory, plus:

            (1) The gains over the appraisal value on sales; and

            (2) The receipts, less losses from the appraisal value on sales; and

      (b) Does not include encumbrances or other obligations on the property of the estate.

      7.  In addition to the compensation for ordinary services of an attorney set forth in this section, an attorney may also be entitled to receive compensation for extraordinary services as set forth in section 21 of this act.

      8.  The [amount] compensation of the attorney must be fixed by written agreement between the personal representative and the attorney, and is subject to approval by the court, after petition, notice and hearing as provided in [subsection 2.] this section. If the personal representative and the attorney fail to reach agreement, or if the attorney is also the personal representative, the amount must be determined and allowed by the court. The petition requesting approval of the compensation of the attorney must contain specific and detailed information supporting the entitlement to compensation, including:

      (a) If the attorney is requesting compensation based upon the value of the estate accounted for by the personal representative, the attorney must provide the manner of calculating the compensation in the petition; and

 


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κ2009 Statutes of Nevada, Page 2526 (Chapter 449, AB 320)κ

 

      (b) If the attorney is requesting compensation based on an hourly basis, or is requesting compensation for extraordinary services, the attorney must provide the following information to the court:

            (1) Reference to time and hours;

      [(b)] (2) The nature and extent of services rendered;

      [(c)] (3) Claimed ordinary and extraordinary services;

      [(d)] (4) The complexity of the work required; and

      [(e)] (5) Other information considered to be relevant to a determination of entitlement.

      [2.] 9.  The clerk shall set the petition for hearing, and the petitioner shall give notice of the petition to the personal representative if he is not the petitioner and to all known heirs in an intestacy proceeding and devisees in a will proceeding. The notice must be given for the period and in the manner provided in NRS 155.010. If a complete copy of the petition is not attached to the notice, the notice must include a statement of the amount of the fee which the court will be requested to approve or allow.

      [3.] 10.  On similar petition, notice and hearing, the court may make an allowance to an attorney for services rendered up to a certain time during the proceedings.

      [4.] If the attorney is requesting compensation based upon the value of the estate as accounted for by the personal representative, the court may apportion the compensation as it deems appropriate given the amount of work remaining to close the estate.

      11.  An heir or devisee may file objections to a petition filed pursuant to this section, and the objections must be considered at the hearing.

      [5.] 12.  Except as otherwise provided in this subsection, an attorney for minor, absent, unborn, incapacitated or nonresident heirs is entitled to compensation primarily out of the estate of the distributee so represented by him in those cases and to such extent as may be determined by the court. If the court finds that all or any part of the services performed by the attorney for the minor, absent, unborn, incapacitated or nonresident heirs was of value to the decedent’s entire estate as such and not of value only to those heirs, the court shall order that all or part of the attorney’s fee be paid to the attorney out of the money of the decedent’s entire estate as a general administrative expense of the estate. The amount of these fees must be determined in the same manner as the other attorney’s fees provided for in this section.

      Sec. 9.  1.  This section and section 8 of this act become effective upon passage and approval.

      2.  Sections 1 to 7, inclusive, of this act become effective on October 1, 2009.

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κ2009 Statutes of Nevada, Page 2527κ

 

CHAPTER 450, AB 482

Assembly Bill No. 482–Committee on Transportation

 

CHAPTER 450

 

AN ACT relating to motor vehicles; transferring the authority for the regulation of trade practices of garages, garagemen and body shops from the Commissioner of Consumer Affairs to the Department of Motor Vehicles; providing a penalty; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Existing law provides for regulation of garages, garagemen and body shops by the Commissioner of Consumer Affairs and for their registration or licensure with the Department of Motor Vehicles. (NRS 487.530-487.570, 487.600-487.690, 597.480-597.590) Sections 2-21 of this bill transfer authority for regulation to the Department and provide for enforcement of those provisions by the Director of the Department.

      Section 1 of this bill allows the Department of Motor Vehicles to fine a person who engages in certain deceptive trade practices relating to the sale or lease of a vehicle regardless of whether the person has been fined for that act under the provisions of NRS 598.0903 to 598.0999, inclusive. (NRS 482.554)

      Under existing law, the Consumer Affairs Division of the Department of Business and Industry has authority over a revolving account to be used for the undercover investigation of alleged violations of certain deceptive trade practices. This bill abolishes that account and section 29.3 of this bill creates a revolving account for the Bureau of Consumer Protection, overseen by the Consumer’s Advocate, to be used for the undercover investigation of alleged violations of sections 4-21 of this bill or deceptive trade practices.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 482.554 is hereby amended to read as follows:

      482.554  1.  The Department may impose an administrative fine of not more than $10,000 against any person who engages in a deceptive trade practice. The Department shall afford to any person so fined an opportunity for a hearing pursuant to the provisions of NRS 233B.121.

      2.  For the purposes of this section, a person shall be deemed to be engaged in a “deceptive trade practice” if, in the course of his business or occupation, he:

      (a) Enters into a contract for the sale of a vehicle on credit with a customer, exercises a valid option to cancel the vehicle sale and then, after the customer returns the vehicle with no damage other than reasonable wear and tear, the seller:

            (1) Fails to return any down payment or other consideration in full, including, returning a vehicle accepted in trade;

            (2) Knowingly makes a false representation to the customer that the customer must sign another contract for the sale of the vehicle on less favorable terms; or

            (3) Fails to use the disclosure as required in subsection 3.

      (b) Uses a contract for the sale of the vehicle or a security agreement that materially differs from the form prescribed by law.

 


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κ2009 Statutes of Nevada, Page 2528 (Chapter 450, AB 482)κ

 

      (c) Engages in any deceptive trade practice, as defined in NRS 598.0915 to 598.0925, inclusive, that involves the purchase and sale or lease of a motor vehicle.

      (d) Engages in any other acts prescribed by the Department by regulation as a deceptive trade practice.

      3.  If a seller of a vehicle exercises a valid option to cancel the sale of a vehicle to a customer, the seller must provide a disclosure, and the customer must sign that disclosure, before the seller and customer may enter into a new agreement for the sale of the same vehicle on different terms, or for the sale of a different vehicle. The Department shall prescribe the form of the disclosure by regulation.

      4.  All administrative fines collected by the Department pursuant to this section must be deposited with the State Treasurer to the credit of the State Highway Fund.

      5.  [Except as otherwise provided in this subsection, the] The administrative remedy provided in this section is not exclusive and is intended to supplement existing law. [The Department may not impose a fine pursuant to this section against any person who engages in a deceptive trade practice if a fine has previously been imposed against that person pursuant to NRS 598.0903 to 598.0999, inclusive, for the same act.] The provisions of this section do not deprive a person injured by a deceptive trade practice from resorting to any other legal remedy.

      Sec. 1.5.  Chapter 487 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 21, inclusive, of this act.

      Sec. 2.  “Body shop” means any place where the body of a motor vehicle is painted, fixed, repaired or replaced for compensation.

      Sec. 3.  “Person authorizing repairs” means a person who uses the services of a garage. The term includes an insurance company, its agents or its representatives authorizing repairs to motor vehicles under a policy of insurance.

      Sec. 4.  1.  Each garageman shall display conspicuously in those areas of his place of business frequented by persons seeking repairs on motor vehicles a sign, not less than 22 inches by 28 inches in size, setting forth in boldface letters the following:

 

STATE OF NEVADA

 

REGISTERED GARAGE

 

THIS GARAGE IS REGISTERED WITH THE DEPARTMENT OF MOTOR VEHICLES

 

NEVADA AUTOMOTIVE REPAIR CUSTOMER BILL OF RIGHTS

 

AS A CUSTOMER IN NEVADA:

 

YOU have the right to receive repairs from a business that is REGISTERED with the Department of Motor Vehicles that will ensure the proper repair of your vehicle. (cite to this section of this act)

 


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κ2009 Statutes of Nevada, Page 2529 (Chapter 450, AB 482)κ

 

YOU have the right to receive a WRITTEN ESTIMATE of charges for repairs made to your vehicle which exceed $50. (cite to section 6 of this act)

 

YOU have the right to read and understand all documents and warranties BEFORE YOU SIGN THEM. (cite to this section of this act)

 

YOU have the right to INSPECT ALL REPLACED PARTS and accessories that are covered by a warranty and for which a charge is made. (cite to section 11 of this act)

 

YOU have the right to request that all replaced parts and accessories that are not covered by a warranty BE RETURNED TO YOU AT THE TIME OF SERVICE. (cite to section 11 of this act)

 

YOU have the right to require authorization BEFORE any additional repairs are made to your vehicle if the charges for those repairs exceed 20% of the original estimate or $100, whichever is less. (cite to section 7 of this act)

 

YOU have the right to receive a COMPLETED STATEMENT OF CHARGES for repairs made to your vehicle. (cite to section 18 of this act)

 

FOR MORE INFORMATION PLEASE CONTACT:

 

THE DEPARTMENT OF MOTOR VEHICLES

 

      2.  Each body shop shall display conspicuously in those areas of its place of business frequented by persons seeking repairs on motor vehicles a sign, not less than 22 inches by 28 inches in size, setting forth in boldface letters the following:

 

STATE OF NEVADA

 

LICENSED BODY SHOP

 

THIS BODY SHOP IS LICENSED BY THE DEPARTMENT OF MOTOR VEHICLES

 

NEVADA AUTOMOTIVE REPAIR CUSTOMER BILL OF RIGHTS

 

AS A CUSTOMER IN NEVADA:

 

YOU have the right to receive repairs from a business that is LICENSED with the Department of Motor Vehicles that will ensure the proper repair of your vehicle. (cite to this section of this act)

 

YOU have the right to receive a WRITTEN ESTIMATE of charges for repairs made to your vehicle which exceed $50. (cite to section 6 of this act)

 

YOU have the right to read and understand all documents and warranties BEFORE YOU SIGN THEM. (cite to this section of this act)

 


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κ2009 Statutes of Nevada, Page 2530 (Chapter 450, AB 482)κ

 

YOU have the right to INSPECT ALL REPLACED PARTS and accessories that are covered by a warranty and for which a charge is made. (cite to section 11 of this act)

 

YOU have the right to request that all replaced parts and accessories that are not covered by a warranty BE RETURNED TO YOU AT THE TIME OF SERVICE. (cite to section 11 of this act)

 

YOU have the right to require authorization BEFORE any additional repairs are made to your vehicle if the charges for those repairs exceed 20% of the original estimate or $100, whichever is less. (cite to section 7 of this act)

 

YOU have the right to receive a COMPLETED STATEMENT OF CHARGES for repairs made to your vehicle. (cite to section 18 of this act)

 

FOR MORE INFORMATION PLEASE CONTACT:

 

THE DEPARTMENT OF MOTOR VEHICLES

 

      3.  The sign required pursuant to the provisions of subsection 1 or 2 must include a replica of the Great Seal of the State of Nevada. The Seal must be 2 inches in diameter and be centered on the face of the sign directly above the words “STATE OF NEVADA.”

      4.  Any person who violates the provisions of this section is guilty of a misdemeanor.

      Sec. 5.  Whenever any body shop or garageman accepts or assumes control of a motor vehicle for the purpose of making or completing any repair, the body shop or garageman shall comply with the provisions of sections 5 to 21, inclusive, of this act.

      Sec. 6.  1.  Except as otherwise provided in section 8 of this act, a person requesting or authorizing the repair of a motor vehicle that is more than $50 must be furnished a written estimate or statement signed by the person making the estimate or statement on behalf of the body shop or garageman indicating the total charge for the performance of the work necessary to accomplish the repair, including the charge for labor and all parts and accessories necessary to perform the work.

      2.  If the estimate is for the purpose of diagnosing a malfunction, the estimate must include the cost of:

      (a) Diagnosis and disassembly; and

      (b) Reassembly, if the person does not authorize the repair.

      3.  The provisions of this section do not require a body shop or garageman to reassemble a motor vehicle if the body shop or garageman determines that the reassembly of the motor vehicle would render the vehicle unsafe to operate.

      Sec. 7.  Except as otherwise provided in section 8 of this act, if it is determined that additional charges are required to perform the repair authorized, and those additional charges exceed, by 20 percent or $100, whichever is less, the amount set forth in the estimate or statement required to be furnished pursuant to the provisions of section 6 of this act, the body shop or garageman shall notify the owner and insurer of the motor vehicle of the amount of those additional charges.

 


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κ2009 Statutes of Nevada, Page 2531 (Chapter 450, AB 482)κ

 

      Sec. 8.  The person authorizing the repairs may waive the estimate or statement required pursuant to the provisions of section 6 of this act or the notification required by section 7 of this act by executing a written waiver of that requirement or notification. The waiver must be executed by the person authorizing the repairs at the time he authorizes those repairs.

      Sec. 9.  If a body shop or garage performs repairs on a motor vehicle, the body shop or garage shall perform the repairs in accordance with any specifications of the manufacturer of the motor vehicle and the written estimate or statement of the cost of the repairs that is most recently agreed upon by the body shop or garage and the person authorizing repairs.

      Sec. 10.  1.  An owner and the insurer of a motor vehicle who have been notified of additional charges pursuant to section 7 of this act shall:

      (a) Authorize the performance of the repair at the additional expense; or

      (b) Without delay, and upon payment of the authorized charges, take possession of the motor vehicle.

      2.  Until the election provided for in subsection 1 has been made, the body shop or garageman shall not undertake any repair which would involve such additional charges.

      3.  If the owner or insurer of the motor vehicle elects to take possession of the motor vehicle but fails to take possession within a 24-hour period after the election, the body shop or garageman may charge for storage of the vehicle.

      Sec. 11.  1.  Whenever the repair work performed on a motor vehicle requires the replacement of any parts or accessories, the body shop or garageman shall, at the request of the person authorizing the repairs or any person entitled to possession of the motor vehicle, deliver to the person all parts and accessories replaced as a result of the work done.

      2.  The provisions of subsection 1 do not apply to parts or accessories which must be returned to a manufacturer or distributor under a warranty arrangement or which are subject to exchange, but the customer, on request, is entitled to be shown the warranty parts for which a charge is made.

      Sec. 12.  The body shop or garageman shall retain copies of any estimate, statement or waiver required by sections 5 to 21, inclusive, of this act as an ordinary business record of the body shop or garage, for a period of not less than 1 year after the date the estimate, statement or waiver is signed.

      Sec. 13.  In every instance where charges are made for the repair of a motor vehicle by a garageman, the garageman making the repairs shall comply with the provisions of sections 5 to 21, inclusive, of this act. A garageman is not entitled to detain a motor vehicle by virtue of any common law or statutory lien, or otherwise enforce such a lien, or to sue on any contract for repairs made by him unless he has complied with the requirements of sections 5 to 21, inclusive, of this act.

      Sec. 14.  A person shall be deemed to be engaged in a “deceptive trade practice” if, in the course of his business or occupation, he:

      1.  Engages in any deceptive trade practice, as defined in NRS 598.0915 to 598.0925, inclusive, that involves the repair of a motor vehicle; or

      2.  Engages in any other acts prescribed by the Director by regulation as a deceptive trade practice.

 


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      Sec. 15.  (Deleted by amendment.)

      Sec. 16.  1.  The Director may request an undercover investigation of a person who is allegedly engaging in a deceptive trade practice or violating the provisions of sections 4 to 21, inclusive, of this act.

      2.  The Bureau of Consumer Protection in the Office of the Attorney General may conduct an undercover investigation of a person who is allegedly engaging in a deceptive trade practice or violating the provisions of sections 4 to 21, inclusive, of this act on its own motion or upon a request received pursuant to subsection 1. Nothing in this subsection requires the Bureau to conduct an undercover investigation.

      Sec. 17.  1.  In addition to any other penalty, the Director may impose an administrative fine of not more than $10,000 against any person who engages in a deceptive trade practice as set forth in section 14 of this act. The Director shall provide to any person so fined an opportunity for a hearing pursuant to the provisions of NRS 233B.121.

      2.  All administrative fines collected by the Director pursuant to this section must be deposited with the State Treasurer to the credit of the State Highway Fund.

      3.  The administrative remedy provided in this section is not exclusive and is intended to supplement existing law. The provisions of this section do not deprive a person injured by a deceptive trade practice from resorting to any other legal remedy.

      Sec. 18.  1.  If charges are made for the repair of a motor vehicle, the garageman or body shop making the charges shall present to the person authorizing repairs or the person entitled to possession of the motor vehicle a statement of the charges setting forth the following information:

      (a) The name and signature of the person authorizing repairs;

      (b) A statement of the total charges;

      (c) An itemization and description of all parts used to repair the motor vehicle indicating the charges made for labor; and

      (d) A description of all other charges.

      2.  Any person violating this section is guilty of a misdemeanor.

      3.  In the case of a motor vehicle registered in this State, no lien for labor or materials provided under NRS 108.265 to 108.367, inclusive, may be enforced by sale or otherwise unless a statement as described in subsection 1 has been given by delivery in person or by certified mail to the last known address of the registered and the legal owner of the motor vehicle. In all other cases, the notice must be made to the last known address of the registered owner and any other person known to have or to claim an interest in the motor vehicle.

      Sec. 19.  1.  On or before January 1 of each year, the Director of the Department shall prepare a report concerning garages, garagemen and body shops. The report must include:

      (a) The number of complaints relating to garages, garagemen and body shops made to and acted upon by the Department during the year for which the report is prepared;

      (b) The number of investigations conducted during that year by the Department relating to garages, garagemen and body shops; and

      (c) The outcome of each investigation specified in paragraph (b) and the extent to which any information relating to each investigation is subject to disclosure to the members of the public.

 


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κ2009 Statutes of Nevada, Page 2533 (Chapter 450, AB 482)κ

 

      2.  On or before January 1 of each even-numbered year, the Director of the Department shall submit the report required pursuant to subsection 1 to the Legislative Commission. On or before January 1 of each odd-numbered year, the Director of the Department shall submit the report to the Director of the Legislative Counsel Bureau for transmittal to:

      (a) The Senate Standing Committee on Energy, Infrastructure and Transportation; and

      (b) The Assembly Standing Committee on Transportation.

      Sec. 20.  The Attorney General or any district attorney may bring an action in any court of competent jurisdiction in the name of the State of Nevada on the complaint of the Director, or of any person allegedly aggrieved by a violation of the provisions of sections 5 to 21, inclusive, of this act, to enjoin any violation of the provisions of sections 5 to 21, inclusive, of this act.

      Sec. 21.  Any person who knowingly violates any provision of sections 5 to 21, inclusive, of this act is liable, in addition to any other penalty or remedy which may be provided by law, to a civil penalty of not more than $500 for each offense, which may be recovered by civil action on complaint of the Director or the district attorney.

      Sec. 21.5.  NRS 487.002 is hereby amended to read as follows:

      487.002  1.  The Advisory Board on Automotive Affairs, consisting of seven members appointed by the Governor, is hereby created within the Department.

      2.  The Governor shall appoint to the Board:

      (a) One representative of the Department;

      (b) One representative of licensed operators of body shops;

      (c) One representative of licensed automobile wreckers;

      (d) One representative of registered garagemen;

      (e) One representative of licensed operators of salvage pools; and

      (f) Two representatives of the general public.

      3.  After the initial terms, each member of the Board serves a term of 4 years. The members of the Board shall annually elect from among their number a Chairman and a Vice Chairman. The Department shall provide secretarial services for the Board.

      4.  The Board shall meet regularly at least twice each year and may meet at other times upon the call of the Chairman. Each member of the Board is entitled to the per diem allowance and travel expenses provided for state officers and employees generally.

      5.  The Board shall:

      (a) Study the regulation of garagemen, automobile wreckers and operators of body shops and salvage pools, including, without limitation, the registration or licensure of such persons and the methods of disciplinary action against such persons;

      (b) Analyze and advise the Department relating to any consumer complaints [provided to the Department by the Consumer Affairs Division of the Department of Business and Industry pursuant to NRS 598.985 or otherwise] received by the Department concerning garagemen, automobile wreckers or operators of body shops or salvage pools;

      (c) Make recommendations to the Department for any necessary regulations or proposed legislation pertaining to paragraph (a) or (b);

      (d) On or before January 15 of each odd-numbered year, prepare and submit a report concerning its activities and recommendations to the Governor and to the Director of the Legislative Counsel Bureau for transmission to the Legislature; and

 


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κ2009 Statutes of Nevada, Page 2534 (Chapter 450, AB 482)κ

 

Governor and to the Director of the Legislative Counsel Bureau for transmission to the Legislature; and

      (e) Perform any other duty assigned by the Department.

      Sec. 22.  NRS 487.530 is hereby amended to read as follows:

      487.530  As used in NRS 487.530 to [487.570,] 487.690, inclusive, and sections 2 to 21, inclusive, of this act, unless the context otherwise requires, the words and terms defined in NRS [487.535] 487.540 to 487.550, inclusive, and sections 2 and 3 of this act have the meanings ascribed to them in those sections.

      Sec. 23.  NRS 487.555 is hereby amended to read as follows:

      487.555  The provisions of NRS 487.530 to [487.570,] 487.690, inclusive, and sections 2 to 21, inclusive, of this act do not apply to a service station that is exclusively engaged in the business of selling motor vehicle fuel, lubricants or goods unrelated to the repair of motor vehicles.

      Sec. 24.  NRS 487.563 is hereby amended to read as follows:

      487.563  1.  Each person who submits an application for registration pursuant to the provisions of NRS 487.560 shall file with the Department a bond in the amount of $5,000, with a corporate surety for the bond that is licensed to do business in this State. The form of the bond must be approved by the Attorney General and be conditioned upon whether the applicant conducts his business as an owner or operator of a garage without fraud or fraudulent representation and in compliance with the provisions of NRS 487.530 to [487.570, inclusive, and 597.480 to 597.590, inclusive.] 487.690, inclusive, and sections 2 to 21, inclusive, of this act.

      2.  The bond must be continuous in form and the total aggregate liability on the bond must be limited to the payment of the total amount of the bond.

      3.  The bond must provide that any person injured by the action of the garageman may:

      (a) Apply to the Director for compensation from the bond. The Director, for good cause shown and after notice and opportunity for hearing, may determine the amount of compensation and the person to whom it is to be paid. The surety shall then make payment.

      (b) Present to the Director an order of a court requiring the Director to pay to the person an amount of compensation from the bond. The Director shall inform the surety, and the surety shall then make payment.

      4.  In lieu of a bond required to be filed pursuant to the provisions of subsection 1, a person may deposit with the Department, pursuant to the terms prescribed by the Department:

      (a) A like amount of money or bonds of the United States or of the State of Nevada of an actual market value of not less than the amount fixed by the Department; or

      (b) A savings certificate of a bank or savings and loan association located in this State, which must indicate an account of an amount equal to the amount of the bond that would otherwise be required pursuant to this section and that the amount is unavailable for withdrawal except upon order of the Department. Interest earned on the certificate accrues to the account of the applicant.

      5.  A deposit made pursuant to subsection 4 may be disbursed by the Director, for good cause shown and after notice and opportunity for hearing, in an amount determined by him to compensate a person injured by an action of the garageman or released upon receipt of:

 


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κ2009 Statutes of Nevada, Page 2535 (Chapter 450, AB 482)κ

 

      (a) An order of a court requiring the Director to release all or a specified portion of the deposit; or

      (b) A statement signed by the person under whose name the deposit is made and acknowledged before any person authorized to take acknowledgments in this State, requesting that the Director release the deposit, or a specified portion thereof, and stating the purpose for which the release is requested.

      6.  If a person fails to comply with an order of a court that relates to the repair of a motor vehicle, or fails to pay or otherwise discharge any final judgment rendered and entered against him or any court order issued and arising out of the repair of a motor vehicle in the operation of a garage, the Department shall revoke or refuse to renew the certificate of registration of the person who failed to comply with the order or satisfy the judgment.

      7.  The Department may reinstate or renew a certificate of registration that is revoked pursuant to the provisions of subsection 6 if the person whose certificate of registration is revoked complies with the order of the court.

      8.  A garageman whose registration has been revoked pursuant to the provisions of subsection 6 shall furnish to the Department a bond in the amount specified in subsection 1 before the reinstatement of his registration.

      Sec. 25.  NRS 487.564 is hereby amended to read as follows:

      487.564  1.  The Department may refuse to issue a registration or may suspend, revoke or refuse to renew a registration to operate a garage upon any of the following grounds:

      (a) A false statement of a material fact in a certification for a salvage vehicle required pursuant to NRS 487.800.

      (b) A false statement or certification for an inspection pursuant to NRS 487.800 which attests to the mechanical fitness or safety of a salvage vehicle.

      (c) The Director determines that the garage or garageman has engaged in a deceptive trade practice or violated the provisions of [NRS 597.480 to 597.590, inclusive.] sections 4 to 21, inclusive, of this act.

      (d) Evidence of unfitness of the applicant or registrant pursuant to NRS 487.165.

      (e) A violation of any regulation adopted by the Department governing the operation of a garage.

      (f) A violation of any statute or regulation that constitutes fraud in conjunction with the repair of a motor vehicle or operation of a garage.

      2.  A person for whom a certificate of registration has been suspended or revoked pursuant to the provisions of this section, subsection 6 of NRS 487.563 or similar provisions of the laws of any other state or territory of the United States shall not be employed by, or in any manner affiliated with, the operation of a garage subject to registration in this State.

      3.  As used in this section, “salvage vehicle” has the meaning ascribed to it in NRS 487.770.

      Sec. 26.  NRS 487.600 is hereby amended to read as follows:

      487.600  As used in NRS 487.600 to [487.690,] 487.687, inclusive, unless the context otherwise requires, the words and terms defined in NRS [487.602 to 487.608, inclusive, ] 487.604, 487.606 and 487.608 have the meanings ascribed to them in those sections.

      Sec. 27.  NRS 487.640 is hereby amended to read as follows:

      487.640  1.  No license may be issued to an operator of a body shop until he procures and files with the Department a good and sufficient bond in the amount of $10,000, with a corporate surety thereon licensed to do business in the State of Nevada, approved as to form by the Attorney General, and conditioned that the applicant shall conduct his business as an operator of a body shop without fraud or fraudulent representation, and in compliance with the provisions of NRS [487.600] 487.530 to 487.690, inclusive [, and 597.480 to 597.590, inclusive.]

 


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κ2009 Statutes of Nevada, Page 2536 (Chapter 450, AB 482)κ

 

business in the State of Nevada, approved as to form by the Attorney General, and conditioned that the applicant shall conduct his business as an operator of a body shop without fraud or fraudulent representation, and in compliance with the provisions of NRS [487.600] 487.530 to 487.690, inclusive [, and 597.480 to 597.590, inclusive.] , and sections 2 to 21, inclusive, of this act. The Department may, by agreement with any operator of a body shop who has been licensed by the Department for 5 years or more, allow a reduction in the amount of the bond of the operator, if the business of the operator has been conducted satisfactorily for the preceding 5 years, but no bond may be in an amount less than $1,000.

      2.  The bond may be continuous in form and the total aggregate liability on the bond must be limited to the payment of the total amount of the bond.

      3.  The bond must provide that any person injured by the action of the operator of the body shop in violation of any of the provisions of NRS [487.600] 487.530 to 487.690, inclusive, and [597.480 to 597.590, inclusive.] sections 2 to 21, inclusive, of this act, may apply to the Director for compensation from the bond. The Director, for good cause shown and after notice and opportunity for hearing, may determine the amount of compensation and the person to whom it is to be paid. The surety shall then make the payment.

      4.  In lieu of a bond an operator of a body shop may deposit with the Department, under the terms prescribed by the Department:

      (a) A like amount of money or bonds of the United States or of the State of Nevada of an actual market value of not less than the amount fixed by the Department; or

      (b) A savings certificate of a bank, credit union or savings and loan association situated in Nevada, which must indicate an account of an amount equal to the amount of the bond which would otherwise be required by this section and that this amount is unavailable for withdrawal except upon order of the Department. Interest earned on the certificate accrues to the account of the applicant.

      5.  A deposit made pursuant to subsection 4 may be disbursed by the Director, for good cause shown and after notice and opportunity for hearing, in an amount determined by him to compensate a person injured by an action of the licensee, or released upon receipt of:

      (a) An order of a court requiring the Director to release all or a specified portion of the deposit; or

      (b) A statement signed by the person under whose name the deposit is made and acknowledged before any person authorized to take acknowledgments in this State, requesting the Director to release the deposit, or a specified portion thereof, and stating the purpose for which the release is requested.

      6.  When a deposit is made pursuant to subsection 4, liability under the deposit is in the amount prescribed by the Department. If the amount of the deposit is reduced or there is an outstanding judgment of a court for which the licensee is liable under the deposit, the license is automatically suspended. The license must be reinstated if the licensee:

      (a) Files an additional bond pursuant to subsection 1;

      (b) Restores the deposit with the Department to the original amount required under this section; or

      (c) Satisfies the outstanding judgment for which he is liable under the deposit.

 


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κ2009 Statutes of Nevada, Page 2537 (Chapter 450, AB 482)κ

 

      7.  A deposit made pursuant to subsection 4 may be refunded:

      (a) By order of the Director, 3 years after the date the licensee ceases to be licensed by the Department, if the Director is satisfied that there are no outstanding claims against the deposit; or

      (b) By order of court, at any time within 3 years after the date the licensee ceases to be licensed by the Department, upon evidence satisfactory to the court that there are no outstanding claims against the deposit.

      8.  Any money received by the Department pursuant to subsection 4 must be deposited with the State Treasurer for credit to the Motor Vehicle Fund.

      Sec. 28.  NRS 487.650 is hereby amended to read as follows:

      487.650  1.  The Department may refuse to issue a license or may suspend, revoke or refuse to renew a license to operate a body shop upon any of the following grounds:

      (a) Failure of the applicant or licensee to have or maintain an established place of business in this State.

      (b) Conviction of the applicant or licensee or an employee of the applicant or licensee of a felony, or of a misdemeanor or gross misdemeanor for a violation of a provision of this chapter.

      (c) Any material misstatement in the application for the license.

      (d) Willful failure of the applicant or licensee to comply with the motor vehicle laws of this State and NRS [487.600] 487.530 to 487.690, inclusive [, or 597.480 to 597.590, inclusive.] , and sections 2 to 21, inclusive, of this act.

      (e) Failure or refusal by the licensee to pay or otherwise discharge any final judgment against him arising out of the operation of the body shop.

      (f) Failure or refusal to provide to the Department an authorization for the disclosure of financial records for the business as required pursuant to subsection 2.

      (g) A finding of guilty or guilty but mentally ill by a court of competent jurisdiction in a case involving a fraudulent inspection, purchase, sale or transfer of a salvage vehicle by the applicant or licensee or an employee of the applicant or licensee.

      (h) An improper, careless or negligent inspection of a salvage vehicle pursuant to NRS 487.800 by the applicant or licensee or an employee of the applicant or licensee.

      (i) A false statement of material fact in a certification of a salvage vehicle pursuant to NRS 487.800 or a record regarding a salvage vehicle by the applicant or licensee or an employee of the applicant or licensee.

      (j) The display of evidence of unfitness for a license pursuant to NRS 487.165.

      2.  Upon the receipt of any report or complaint alleging that an applicant or a licensee has engaged in financial misconduct or has failed to satisfy financial obligations related to the operation of a body shop, the Department may require the applicant or licensee to submit to the Department an authorization for the disclosure of financial records for the business as provided in NRS 239A.090. The Department may use any information obtained pursuant to such an authorization only to determine the suitability of the applicant or licensee for initial or continued licensure. Information obtained pursuant to such an authorization may be disclosed only to those employees of the Department who are authorized to issue a license to an applicant pursuant to NRS [487.600] 487.530 to 487.690, inclusive, and sections 2 to 21, inclusive, of this act, or to determine the suitability of an applicant or a licensee for licensure.

 


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κ2009 Statutes of Nevada, Page 2538 (Chapter 450, AB 482)κ

 

sections 2 to 21, inclusive, of this act, or to determine the suitability of an applicant or a licensee for licensure.

      3.  As used in this section, “salvage vehicle” has the meaning ascribed to it in NRS 487.770.

      Sec. 29.  NRS 487.690 is hereby amended to read as follows:

      487.690  Any person who violates any of the provisions of NRS [487.600] 487.530 to [487.680,] 487.690, inclusive, and sections 2 to 21, inclusive, of this act, is guilty of a misdemeanor.

      Sec. 29.3.  Chapter 228 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  There is hereby created a revolving account for the Bureau of Consumer Protection in the sum of $7,500, which must be used for the payment of expenses relating to conducting an undercover investigation of a person who is allegedly engaging in a deceptive trade practice or violating the provisions of sections 4 to 21, inclusive, of this act.

      2.  The Consumer’s Advocate shall deposit the money in the revolving account in a bank or credit union qualified to receive deposits of public money as provided by law, and the deposit must be secured by a depository bond satisfactory to the State Board of Examiners.

      3.  The Consumer’s Advocate or his designee may:

      (a) Sign all checks drawn upon the revolving account; and

      (b) Make withdrawals of cash from the revolving account.

      4.  Payments made from the revolving account must be promptly reimbursed from the legislative appropriation, if any, to the Consumer’s Advocate for the expenses relating to conducting an undercover investigation of a person who is allegedly engaging in a deceptive trade practice or violating the provisions of sections 4 to 21, inclusive, of this act. The claim for reimbursement must be processed and paid as other claims against the State are paid.

      5.  The Consumer’s Advocate shall:

      (a) Approve any disbursement from the revolving account; and

      (b) Maintain records of any such disbursement.

      Sec. 29.7.  NRS 228.300 is hereby amended to read as follows:

      228.300  As used in NRS 228.300 to 228.390, inclusive, and section 29.3 of this act, unless the context otherwise requires, the words and terms defined in NRS 228.302 to 228.308, inclusive, have the meanings ascribed to them in those sections.

      Secs. 30 and 31.  (Deleted by amendment.)

      Sec. 32.  NRS 686A.300 is hereby amended to read as follows:

      686A.300  1.  An insurer who issues insurance covering damage to a motor vehicle shall not delay making payment for any claim involving damage to a motor vehicle after receiving a statement of charges, pursuant to the provisions of [NRS 597.5705,] section 18 of this act, from any garage or licensed body shop previously authorized by the insured to perform the repairs required by that claim.

      2.  A delay, within the meaning of this section, is failure to issue a check or draft, payable to the garage or licensed body shop or jointly to the insured and the garage or licensed body shop, within 30 days after the insurer’s receipt of the statement of charges for repairs which have been satisfactorily completed.

 


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      3.  If the damaged vehicle is subject to a security interest or the legal owner of the damaged vehicle is different from the registered owner, the vehicle must be repaired by a garage or licensed body shop unless:

      (a) The insurer has declared the vehicle a total loss; or

      (b) The total charge for the repair of the vehicle, as set forth in the statement of charges presented pursuant to [NRS 597.5705,] section 18 of this act, is $300 or less.

      4.  Except as otherwise provided in subsection 3, nothing in this section shall be deemed to prohibit an insurer and insured from settling a claim involving damage to a motor vehicle without providing for the repair of the vehicle.

      5.  As used in this section, “licensed body shop” means a body shop for which a license has been issued pursuant to chapter 487 of NRS.

      Sec. 33.  NRS 487.535, 487.568, 487.570, 487.602, 597.480, 597.490, 597.500, 597.510, 597.520, 597.530, 597.535, 597.540, 597.550, 597.560, 597.570, 597.5701, 597.5702, 597.5703, 597.5704, 597.5705, 597.5706, 597.580, 597.590, 598.971, 598.975, 598.981, 598.985 and 598.990 are hereby repealed.

      Sec. 34.  This act becomes effective on July 1, 2009.

________

 

CHAPTER 451, AB 492

Assembly Bill No. 492–Committee on Government Affairs

 

CHAPTER 451

 

AN ACT relating to taxation; imposing certain requirements on the enactment of exemptions from property taxes and sales and use taxes; imposing certain requirements on legislation revising the authority of the Commission on Economic Development to approve abatements of taxes; requiring the Commission to notify affected political subdivisions before taking action on such abatements; requiring certain reports from the Department of Taxation; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 1 of this bill carries out the provisions of Section 6 of Article 10 of the Nevada Constitution, which became effective on November 25, 2008, through the statutory imposition of those constitutional requirements regarding the enactment by the Legislature of any exemptions from property taxes or sales and use taxes.

      Existing law authorizes the Commission on Economic Development to grant to certain businesses partial abatements of property taxes, business taxes and local sales and use taxes. (NRS 274.310, 274.320, 274.330, 360.750, 361.0687, 363B.120, 374.357, 701A.210) Sections 2 and 3 of this bill impose various requirements upon future state legislation expanding the authority of the Commission to approve any abatements of taxes and require the Department of Taxation to prepare biennial reports for the Legislature on whether the costs of such future abatements exceed the benefits thereof.

      Section 4 of this bill requires the Commission on Economic Development to provide notice to affected political subdivisions at least 30 days before taking action on an application for any abatement of taxes imposed on a business. Section 5 of this bill repeals various provisions which partially duplicate the provisions of section 4.

 


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THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 360 of NRS is hereby amended by adding thereto the provisions set forth as sections 2, 3 and 4 of this act.

      Sec. 2.  In accordance with Section 6 of Article 10 of the Constitution of the State of Nevada:

      1.  The Legislature shall not enact an exemption from any ad valorem tax on property or excise tax on the sale, storage, use or consumption of tangible personal property sold at retail unless the Legislature finds that the exemption:

      (a) Will achieve a bona fide social or economic purpose and the benefits of the exemption are expected to exceed any adverse effect of the exemption on the provision of services to the public by the State or a local government that would otherwise receive revenue from the tax from which the exemption would be granted; and

      (b) Will not impair adversely the ability of the State or a local government to pay, when due, all interest and principal on any outstanding bonds or any other obligations for which revenue from the tax from which the exemption would be granted was pledged.

      2.  In enacting an exemption from any ad valorem tax on property or excise tax on the sale, storage, use or consumption of tangible personal property sold at retail, the Legislature shall ensure that the requirements for claiming the exemption are as similar as practicable for similar classes of taxpayers.

      Sec. 3.  1.  Any state legislation enacted on or after July 1, 2009, which authorizes or requires the Commission on Economic Development to approve any abatement of taxes or increases the amount of any abatement of taxes which the Commission is authorized or required to approve:

      (a) Expires by limitation 10 years after the effective date of that legislation.

      (b) Does not apply to:

            (1) Any taxes imposed pursuant to NRS 374.110 or 374.190; or

            (2) Any entity that receives:

                  (I) Any funding from a governmental entity, other than any private activity bonds as defined in 26 U.S.C. § 141; or

                  (II) Any real or personal property from a governmental entity at no cost or at a reduced cost.

      (c) Requires each recipient of the abatement to submit to the Department, on or before the last day of each even-numbered year, a report on whether the recipient is in compliance with the terms of the abatement. The Department shall establish a form for the report and may adopt such regulations as it determines to be appropriate to carry out this paragraph. The report must include, without limitation:

            (1) The date the recipient commenced operation in this State;

            (2) The number of employees actually employed by the recipient and the average hourly wage of those employees;

            (3) An accounting of any fees paid by the recipient to the State and to local governmental entities;

 


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            (4) An accounting of the property taxes paid by the recipient and the amount of those taxes that would have been due if not for the abatement;

            (5) An accounting of the sales and use taxes paid by the recipient and the amount of those taxes that would have been due if not for the abatement;

            (6) An accounting of the total capital investment made in connection with the project to which the abatement applies; and

            (7) An accounting of the total investment in personal property made in connection with the project to which the abatement applies.

      2.  On or before January 15 of each odd-numbered year, the Department shall:

      (a) Based upon the information submitted to the Department pursuant to paragraph (c) of subsection 1, prepare a written report of its findings regarding whether the costs of the abatement exceed the benefits of the abatement; and

      (b) Submit the report to the Director of the Legislative Counsel Bureau for transmittal to the Legislature.

      Sec. 4.  1.  If the Commission on Economic Development receives an application for any abatement of taxes imposed on a business, the Commission shall, at least 30 days before the meeting at which the Commission takes any action on the application, provide notice of the application to:

      (a) The governing body of the county, the board of trustees of the school district and the governing body of the city or town, if any, in which the business is or will be located; and

      (b) The governing body of any other political subdivision that could be affected by the abatement.

      2.  The notice required by this section must set forth the date, time and location of the meeting at which the Commission on Economic Development will consider the application.

      3.  The Commission on Economic Development shall adopt regulations relating to the notice required by this section.

      Sec. 5.  NRS 360.750 is hereby amended to read as follows:

      360.750  1.  A person who intends to locate or expand a business in this State may apply to the Commission on Economic Development for a partial abatement of one or more of the taxes imposed on the new or expanded business pursuant to chapter 361, 363B or 374 of NRS.

      2.  The Commission on Economic Development shall approve an application for a partial abatement if the Commission makes the following determinations:

      (a) The business is consistent with:

            (1) The State Plan for Industrial Development and Diversification that is developed by the Commission pursuant to NRS 231.067; and

            (2) Any guidelines adopted pursuant to the State Plan.

      (b) The applicant has executed an agreement with the Commission which must:

            (1) Comply with the requirements of NRS 360.755;

            (2) State that the business will, after the date on which a certificate of eligibility for the abatement is issued pursuant to subsection [5,] 4, continue in operation in this State for a period specified by the Commission, which must be at least 5 years, and will continue to meet the eligibility requirements set forth in this subsection; and

 


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must be at least 5 years, and will continue to meet the eligibility requirements set forth in this subsection; and

            (3) Bind the successors in interest of the business for the specified period.

      (c) The business is registered pursuant to the laws of this State or the applicant commits to obtain a valid business license and all other permits required by the county, city or town in which the business operates.

      (d) Except as otherwise provided in NRS 361.0687, if the business is a new business in a county whose population is 100,000 or more or a city whose population is 60,000 or more, the business meets at least two of the following requirements:

            (1) The business will have 75 or more full-time employees on the payroll of the business by the fourth quarter that it is in operation.

            (2) Establishing the business will require the business to make a capital investment of at least $1,000,000 in this State.

            (3) The average hourly wage that will be paid by the new business to its employees in this State is at least 100 percent of the average statewide hourly wage as established by the Employment Security Division of the Department of Employment, Training and Rehabilitation on July 1 of each fiscal year and:

                  (I) The business will provide a health insurance plan for all employees that includes an option for health insurance coverage for dependents of the employees; and

                  (II) The cost to the business for the benefits the business provides to its employees in this State will meet the minimum requirements for benefits established by the Commission by regulation pursuant to subsection [9.] 8.

      (e) Except as otherwise provided in NRS 361.0687, if the business is a new business in a county whose population is less than 100,000 or a city whose population is less than 60,000, the business meets at least two of the following requirements:

            (1) The business will have 15 or more full-time employees on the payroll of the business by the fourth quarter that it is in operation.

            (2) Establishing the business will require the business to make a capital investment of at least $250,000 in this State.

            (3) The average hourly wage that will be paid by the new business to its employees in this State is at least 100 percent of the average statewide hourly wage or the average countywide hourly wage, whichever is less, as established by the Employment Security Division of the Department of Employment, Training and Rehabilitation on July 1 of each fiscal year and:

                  (I) The business will provide a health insurance plan for all employees that includes an option for health insurance coverage for dependents of the employees; and

                  (II) The cost to the business for the benefits the business provides to its employees in this State will meet the minimum requirements for benefits established by the Commission by regulation pursuant to subsection [9.] 8.

      (f) If the business is an existing business, the business meets at least two of the following requirements:

            (1) The business will increase the number of employees on its payroll by 10 percent more than it employed in the immediately preceding fiscal year or by six employees, whichever is greater.

 


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κ2009 Statutes of Nevada, Page 2543 (Chapter 451, AB 492)κ

 

            (2) The business will expand by making a capital investment in this State in an amount equal to at least 20 percent of the value of the tangible property possessed by the business in the immediately preceding fiscal year. The determination of the value of the tangible property possessed by the business in the immediately preceding fiscal year must be made by the:

                  (I) County assessor of the county in which the business will expand, if the business is locally assessed; or

                  (II) Department, if the business is centrally assessed.

            (3) The average hourly wage that will be paid by the existing business to its new employees in this State is at least the amount of the average hourly wage required to be paid by businesses pursuant to subparagraph (2) of either paragraph (a) or (b) of subsection 2 of NRS 361.0687, whichever is applicable, and:

                  (I) The business will provide a health insurance plan for all new employees that includes an option for health insurance coverage for dependents of the employees; and

                  (II) The cost to the business for the benefits the business provides to its new employees in this State will meet the minimum requirements for benefits established by the Commission by regulation pursuant to subsection [9.] 8.

      (g) In lieu of meeting the requirements of paragraph (d), (e) or (f), if the business furthers the development and refinement of intellectual property, a patent or a copyright into a commercial product, the business meets at least two of the following requirements:

            (1) The business will have 10 or more full-time employees on the payroll of the business by the fourth quarter that it is in operation.

            (2) Establishing the business will require the business to make a capital investment of at least $500,000 in this State.

            (3) The average hourly wage that will be paid by the new business to its employees in this State is at least the amount of the average hourly wage required to be paid by businesses pursuant to subparagraph (2) of either paragraph (a) or (b) of subsection 2 of NRS 361.0687, whichever is applicable, and:

                  (I) The business will provide a health insurance plan for all employees that includes an option for health insurance coverage for dependents of the employees; and

                  (II) The cost to the business for the benefits the business provides to its employees in this State will meet with minimum requirements established by the Commission by regulation pursuant to subsection [9.] 8.

      3.  Notwithstanding the provisions of subsection 2, the Commission on Economic Development:

      (a) Shall not consider an application for a partial abatement unless the Commission has requested a letter of acknowledgment of the request for the abatement from any affected county, school district, city or town.

      (b) May, if the Commission determines that such action is necessary:

            (1) Approve an application for a partial abatement by a business that does not meet the requirements set forth in paragraph (d), (e), (f) or (g) of subsection 2;

            (2) Make the requirements set forth in paragraph (d), (e), (f) or (g) of subsection 2 more stringent; or

            (3) Add additional requirements that a business must meet to qualify for a partial abatement.

 


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      4.  [If a person submits an application to the Commission on Economic Development pursuant to subsection 1, the Commission shall provide notice to the governing body of the county, the board of trustees of the school district and the governing body of the city or town, if any, in which the person intends to locate or expand a business. The notice required pursuant to this subsection must set forth the date, time and location of the hearing at which the Commission will consider the application.

      5.]  If the Commission on Economic Development approves an application for a partial abatement, the Commission shall immediately forward a certificate of eligibility for the abatement to:

      (a) The Department;

      (b) The Nevada Tax Commission; and

      (c) If the partial abatement is from the property tax imposed pursuant to chapter 361 of NRS, the county treasurer.

      [6.] 5.  An applicant for a partial abatement pursuant to this section or an existing business whose partial abatement is in effect shall, upon the request of the Executive Director of the Commission on Economic Development, furnish the Executive Director with copies of all records necessary to verify that the applicant meets the requirements of subsection 2.

      [7.] 6.  If a business whose partial abatement has been approved pursuant to this section and is in effect ceases:

      (a) To meet the requirements set forth in subsection 2; or

      (b) Operation before the time specified in the agreement described in paragraph (b) of subsection 2,

Κ the business shall repay to the Department or, if the partial abatement was from the property tax imposed pursuant to chapter 361 of NRS, to the county treasurer, the amount of the exemption that was allowed pursuant to this section before the failure of the business to comply unless the Nevada Tax Commission determines that the business has substantially complied with the requirements of this section. Except as otherwise provided in NRS 360.232 and 360.320, the business shall, in addition to the amount of the exemption required to be paid pursuant to this subsection, pay interest on the amount due at the rate most recently established pursuant to NRS 99.040 for each month, or portion thereof, from the last day of the month following the period for which the payment would have been made had the partial abatement not been approved until the date of payment of the tax.

      [8.] 7.  A county treasurer:

      (a) Shall deposit any money that he receives pursuant to subsection [7] 6 in one or more of the funds established by a local government of the county pursuant to NRS 354.6113 or 354.6115; and

      (b) May use the money deposited pursuant to paragraph (a) only for the purposes authorized by NRS 354.6113 and 354.6115.

      [9.] 8.  The Commission on Economic Development:

      (a) Shall adopt regulations relating to [:

            (1) The] the minimum level of benefits that a business must provide to its employees if the business is going to use benefits paid to employees as a basis to qualify for a partial abatement; and

            [(2) The notice that must be provided pursuant to subsection 4.]

      (b) May adopt such other regulations as the Commission on Economic Development determines to be necessary to carry out the provisions of this section and NRS 360.755.

      [10.] 9.  The Nevada Tax Commission:

 


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κ2009 Statutes of Nevada, Page 2545 (Chapter 451, AB 492)κ

 

      (a) Shall adopt regulations regarding:

            (1) The capital investment that a new business must make to meet the requirement set forth in paragraph (d), (e) or (g) of subsection 2; and

            (2) Any security that a business is required to post to qualify for a partial abatement pursuant to this section.

      (b) May adopt such other regulations as the Nevada Tax Commission determines to be necessary to carry out the provisions of this section and NRS 360.755.

      [11.] 10.  An applicant for an abatement who is aggrieved by a final decision of the Commission on Economic Development may petition for judicial review in the manner provided in chapter 233B of NRS.

      Sec. 6.  This act becomes effective on July 1, 2009.

________

 

CHAPTER 452, SB 3

Senate Bill No. 3–Committee on Legislative Operations and Elections

 

CHAPTER 452

 

AN ACT relating to legislative affairs; creating the Legislative Committee on Child Welfare and Juvenile Justice; prescribing the powers and duties of the Committee; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 3 of this bill creates the Legislative Committee on Child Welfare and Juvenile Justice and provides for the appointment of its membership by the Legislative Commission. Section 4 of this bill prescribes the manner in which meetings must be conducted by the Committee and provides for the compensation of its members. Section 5 of this bill prescribes the duties of the Committee, including the evaluation and review of issues relating to child welfare services and juvenile justice in this State. Sections 6 and 7 of this bill authorize the Committee to conduct investigations and hold hearings and provide for the administration of oaths, the deposition of witnesses and the issuance of subpoenas in connection with those investigations and hearings.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 218 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 8, inclusive, of this act.

      Sec. 2.  As used in sections 2 to 8, inclusive, of this act, unless the context otherwise requires, “Committee” means the Legislative Committee on Child Welfare and Juvenile Justice.

      Sec. 3.  1.  The Legislative Committee on Child Welfare and Juvenile Justice is hereby created. The membership of the Committee consists of three members of the Senate and three members of the Assembly, appointed by the Legislative Commission.

      2.  The Legislative Commission shall select the Chairman and Vice Chairman of the Committee from among the members of the Committee. After the initial selection of those officers, each of those officers holds the position for a term of 2 years commencing on July 1 of each odd-numbered year.

 


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κ2009 Statutes of Nevada, Page 2546 (Chapter 452, SB 3)κ

 

position for a term of 2 years commencing on July 1 of each odd-numbered year. The Chairmanship of the Committee must alternate each biennium between the houses of the Legislature. If a vacancy occurs in the Chairmanship or Vice Chairmanship, the vacancy must be filled in the same manner as the original selection for the remainder of the unexpired term.

      3.  A member of the Committee who is not a candidate for reelection or who is defeated for reelection continues to serve until the convening of the next regular session of the Legislature.

      4.  A vacancy on the Committee must be filled in the same manner as the original appointment.

      Sec. 4.  1.  The members of the Committee shall meet throughout the year at the times and places specified by a call of the Chairman or a majority of the Committee.

      2.  The Director of the Legislative Counsel Bureau or his designee shall act as the nonvoting recording Secretary of the Committee.

      3.  Four members of the Committee constitute a quorum, and a quorum may exercise all the power and authority conferred on the Committee.

      4.  Except during a regular or special session of the Legislature, for each day or portion of a day during which a member of the Committee attends a meeting of the Committee or is otherwise engaged in the work of the Committee, the member is entitled to receive the:

      (a) Compensation provided for a majority of the members of the Legislature during the first 60 days of the preceding regular session;

      (b) Per diem allowance provided for state officers and employees generally; and

      (c) Travel expenses provided pursuant to NRS 218.2207.

Κ The compensation, per diem allowances and travel expenses of the members of the Committee must be paid from the Legislative Fund.

      Sec. 5.  The Committee shall evaluate and review issues relating to:

      1.  The provision of child welfare services in this State, including, without limitation:

      (a) Programs for the provision of child welfare services;

      (b) Licensing and reimbursement of providers of foster care;

      (c) Mental health services; and

      (d) Compliance with federal requirements regarding child welfare; and

      2.  Juvenile justice in this State, including, without limitation:

      (a) The coordinated continuum of care in which community-based programs and services are combined to ensure that health services, substance abuse treatment, education, training and care are compatible with the needs of each juvenile in the juvenile justice system;

      (b) Individualized supervision, care and treatment to accommodate the individual needs and potential of the juvenile and his family, and treatment programs which integrate the juvenile into situations of living and interacting that are compatible with a healthy, stable and familial environment;

      (c) Programs for aftercare and reintegration in which juveniles will continue to receive treatment after their active rehabilitation in a facility to prevent the relapse or regression of progress achieved during the recovery process;

 


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κ2009 Statutes of Nevada, Page 2547 (Chapter 452, SB 3)κ

 

      (d) Overrepresentation and disparate treatment of minorities in the juvenile justice system, including, without limitation, a review of the various places where bias may influence decisions concerning minorities;

      (e) Gender-specific services, including, without limitation, programs for female juvenile offenders which consider female development in their design and implementation and which address the needs of females, including issues relating to:

            (1) Victimization and abuse;

            (2) Substance abuse;

            (3) Mental health;

            (4) Education; and

            (5) Vocational and skills training;

      (f) The quality of care provided for juvenile offenders in state institutions and facilities, including, without limitation:

            (1) The qualifications and training of staff;

            (2) The documentation of the performance of state institutions and facilities;

            (3) The coordination and collaboration of agencies; and

            (4) The availability of services relating to mental health, substance abuse, education, vocational training and treatment of sex offenders and violent offenders;

      (g) The feasibility and necessity for the independent monitoring of state institutions and facilities for the quality of care provided to juvenile offenders; and

      (h) Programs developed in other states which provide a system of community-based programs that place juvenile offenders in more specialized programs according to the needs of the juveniles.

      Sec. 6.  1.  The Committee may:

      (a) Conduct investigations and hold hearings in connection with its duties pursuant to section 5 of this act;

      (b) Request that the Legislative Counsel Bureau assist in the research, investigations, hearings and reviews of the Committee; and

      (c) Propose recommended legislation concerning child welfare and juvenile justice to the Legislature.

      2.  The Committee shall, on or before January 15 of each odd-numbered year, submit to the Director of the Legislative Counsel Bureau for transmittal to the Legislature a report concerning the evaluation and review conducted pursuant to section 5 of this act.

      Sec. 7.  1.  If the Committee conducts investigations or holds hearings pursuant to section 6 of this act:

      (a) The Chairman of the Committee or, in his absence, a member designated by the Committee may administer oaths;

      (b) The Chairman of the Committee may cause the deposition of witnesses, residing within or outside of this State, to be taken in the manner prescribed by rule of court for taking depositions in civil actions in the district courts; and

      (c) The Chairman of the Committee may issue subpoenas to compel the attendance of witnesses and the production of books and papers.

      2.  If any witness refuses to attend or testify or produce any books and papers as required by the subpoena, the Chairman of the Committee may report to the district court by petition, setting forth that:

 


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κ2009 Statutes of Nevada, Page 2548 (Chapter 452, SB 3)κ

 

      (a) Due notice has been given of the time and place of attendance of the witness or the production of the books and papers;

      (b) The witness has been subpoenaed by the Committee pursuant to this section; and

      (c) The witness has failed or refused to attend or produce the books and papers required by the subpoena before the Committee which is named in the subpoena, or has refused to answer questions propounded to him,

Κ and asking for an order of the court compelling the witness to attend and testify or produce the books and papers before the Committee.

      3.  Upon such petition, the court shall enter an order directing the witness to appear before the court at a time and place to be fixed by the court in its order, the time to be not more than 10 days after the date of the order, and then and there show cause why he has not attended or testified or produced the books or papers before the Committee. A certified copy of the order must be served upon the witness.

      4.  If it appears to the court that the subpoena was regularly issued by the Committee, the court shall enter an order that the witness appear before the Committee at the time and place fixed in the order and testify or produce the required books or papers, and upon failure to obey the order, the witness shall be dealt with as for contempt of court.

      Sec. 8.  Each witness who appears before the Committee by its order, except a state officer or employee, is entitled to receive for his attendance the fees and mileage provided for witnesses in civil cases in the courts of record of this State. The fees and mileage must be audited and paid upon the presentation of proper claims sworn to by the witness and approved by the Secretary and Chairman of the Committee.

      Sec. 9.  (Deleted by amendment.)

      Sec. 10.  This act becomes effective on July 1, 2009.

________

 


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κ2009 Statutes of Nevada, Page 2549κ

 

CHAPTER 453, SB 17

Senate Bill No. 17–Senator Wiener

 

CHAPTER 453

 

AN ACT relating to health care; revising provisions governing the retention and destruction of health care records; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 1 of this bill requires that certain boards post a statement on their Internet websites that the health care records of patients who are less than 23 years of age may not be destroyed and that the health care records of other patients may be destroyed after 5 years.

      Existing law requires certain providers of health care, including pharmacists, to retain the health care records of patients for 5 years after their receipt or production. (NRS 629.051) Section 2 of this bill provides that this requirement relating to the retention of records does not apply to pharmacists. Section 2 also: (1) requires that certain disclosures regarding destruction of records be provided to patients; (2) prohibits the destruction of health care records for a person who is less than 23 years of age until the person attains the age of 23 years; and (3) requires the State Board of Health to adopt regulations relating to the required disclosures.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 629 of NRS is hereby amended by adding thereto a new section to read as follows:

      1.  The State Board of Health and each board created pursuant to chapter 630, 630A, 631, 632, 633, 634, 634A, 635, 636, 637, 637A, 637B, 640, 640A, 640B, 640C, 641, 641A, 641B or 641C of NRS shall post on its website on the Internet, if any, a statement which discloses that:

      (a) Pursuant to the provisions of subsection 7 of NRS 629.051:

            (1) The health care records of a person who is less than 23 years of age may not be destroyed; and

            (2) The health care records of a person who has attained the age of 23 years may be destroyed for those records which have been retained for at least 5 years or for any longer period provided by federal law; and

      (b) Except as otherwise provided in subsection 7 of NRS 629.051 and unless a longer period is provided by federal law, the health care records of a patient who is 23 years of age or older may be destroyed after 5 years pursuant to subsection 1 of NRS 629.051.

      2.  The State Board of Health shall adopt regulations prescribing the contents of the statements required pursuant to this section.

      Sec. 2.  NRS 629.051 is hereby amended to read as follows:

      629.051  1.  Except as otherwise provided in this section and in regulations adopted by the State Board of Health pursuant to NRS 652.135 with regard to the records of a medical laboratory [,] and unless a longer period is provided by federal law, each provider of health care shall retain the health care records of his patients as part of his regularly maintained records for 5 years after their receipt or production. Health care records may be retained in written form, or by microfilm or any other recognized form of size reduction, including, without limitation, microfiche, computer disc, magnetic tape and optical disc, which does not adversely affect their use for the purposes of NRS 629.061.

 


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size reduction, including, without limitation, microfiche, computer disc, magnetic tape and optical disc, which does not adversely affect their use for the purposes of NRS 629.061. Health care records may be created, authenticated and stored in a computer system which limits access to those records.

      2.  A provider of health care shall post, in a conspicuous place in each location at which the provider performs health care services, a sign which discloses to patients that their health care records may be destroyed after the period set forth in subsection 1.

      3.  When a provider of health care performs health care services for a patient for the first time, the provider of health care shall deliver to the patient a written statement which discloses to the patient that the health care records of the patient may be destroyed after the period set forth in subsection 1.

      4.  If a provider fails to deliver the written statement to the patient pursuant to subsection 3, the provider of health care shall deliver to the patient the written statement described in subsection 3 when the provider next performs health care services for the patient.

      5.  In addition to delivering a written statement pursuant to subsection 3 or 4, a provider of health care may deliver such a written statement to a patient at any other time.

      6.  A written statement delivered to a patient pursuant to this section may be included with other written information delivered to the patient by a provider of health care.

      7.  A provider of health care shall not destroy the health care records of a person who is less than 23 years of age on the date of the proposed destruction of the records. The health care records of a person who has attained the age of 23 years may be destroyed in accordance with this section for those records which have been retained for at least 5 years or for any longer period provided by federal law.

      8.  The provisions of this section do not apply to a pharmacist.

      9.  The State Board of Health shall adopt:

      (a) Regulations prescribing the form, size, contents and placement of the signs and written statements required pursuant to this section; and

      (b) Any other regulations necessary to carry out the provisions of this section.

      Sec. 3.  NRS 630.254 is hereby amended to read as follows:

      630.254  1.  Each licensee shall maintain a permanent mailing address with the Board to which all communications from the Board to the licensee must be sent. A licensee who changes his permanent mailing address shall notify the Board in writing of his new permanent mailing address within 30 days after the change. If a licensee fails to notify the Board in writing of a change in his permanent mailing address within 30 days after the change, the Board:

      (a) Shall impose upon the licensee a fine not to exceed $250; and

      (b) May initiate disciplinary action against the licensee as provided pursuant to subsection 9 of NRS 630.306.

      2.  Any licensee who changes the location of his office in this State shall notify the Board in writing of the change before practicing at the new location.

      3.  Any licensee who closes his office in this State shall:

 


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κ2009 Statutes of Nevada, Page 2551 (Chapter 453, SB 17)κ

 

      (a) Notify the Board in writing of this occurrence within 14 days after the closure; and

      (b) For a period of 5 years thereafter , unless a longer period of retention is provided by federal law, keep the Board apprised in writing of the location of the medical records of his patients.

________

 

CHAPTER 454, SB 43

Senate Bill No. 43–Committee on Government Affairs

 

CHAPTER 454

 

AN ACT relating to public works; revising the criteria that the State Public Works Board is required to adopt to determine the qualification of bidders on contracts for public works; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      This bill revises the criteria that the State Public Works Board is required to adopt to determine the qualification of bidders on contracts for public works to include whether the applicant has been disciplined or fined by the State Contractors’ Board or another state or federal agency for conduct that relates to the ability of the applicant to perform the public work. (NRS 338.1375)

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 338.1375 is hereby amended to read as follows:

      338.1375  1.  The State Public Works Board shall not accept a bid on a contract for a public work unless the contractor who submits the bid has qualified pursuant to NRS 338.1379 to bid on that contract.

      2.  The State Public Works Board shall by regulation adopt criteria for the qualification of bidders on contracts for public works of this State. The criteria adopted by the State Public Works Board pursuant to this section must be used by the State Public Works Board to determine the qualification of bidders on contracts for public works of this State.

      3.  The criteria adopted by the State Public Works Board pursuant to this section:

      (a) Must be adopted in such a form that the determination of whether an applicant is qualified to bid on a contract for a public work does not require or allow the exercise of discretion by any one person.

      (b) May include only:

            (1) The financial ability of the applicant to perform a contract;

            (2) The principal personnel of the applicant;

            (3) Whether the applicant has breached any contracts with a public body or person in this State or any other state;

            (4) Whether the applicant has been disqualified from being awarded a contract pursuant to NRS 338.017 or 338.13895;

 


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κ2009 Statutes of Nevada, Page 2552 (Chapter 454, SB 43)κ

 

            (5) Whether the applicant has been disciplined or fined by the State Contractors’ Board or another state or federal agency for conduct that relates to the ability of the applicant to perform the public work;

            (6) The performance history of the applicant concerning other recent, similar contracts, if any, completed by the applicant; and

            [(6)] (7) The truthfulness and completeness of the application.

      Sec. 2.  This act becomes effective upon passage and approval.

________

 

CHAPTER 455, SB 45

Senate Bill No. 45–Committee on Judiciary

 

CHAPTER 455

 

AN ACT relating to crimes; allowing a prospective witness who is an older person or a vulnerable person to have his deposition taken for use at a trial or hearing under certain circumstances; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Existing law allows a prospective witness who may be unable to attend or may be prevented from attending a trial or hearing to have his deposition taken, if his testimony is material, in order to prevent a failure of justice. (NRS 174.175) At a trial or hearing, a part or all of a deposition may be used if it appears that: (1) the witness is dead; (2) the witness is out of the State of Nevada; (3) the witness is sick; (4) the witness has become of unsound mind; or (5) the party offering the deposition could not procure the attendance of the witness by subpoena. (NRS 174.215) This bill expands the list of prospective witnesses who may have their deposition taken to include older persons and vulnerable persons. (NRS 174.175) This bill also provides that a court may order the deposition of an older person or a vulnerable person only upon good cause shown to the court.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 174.175 is hereby amended to read as follows:

      174.175  1.  If it appears that a prospective witness is an older person or a vulnerable person or may be unable to attend or prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment, information or complaint may , upon motion of a defendant or of the State and notice to the parties , order that his testimony be taken by deposition and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If the motion is for the deposition of an older person or a vulnerable person, the court may enter an order to take the deposition only upon good cause shown to the court. If the deposition is taken upon motion of the State, the court shall order that it be taken under such conditions as will afford to each defendant the opportunity to confront the witnesses against him.

 


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κ2009 Statutes of Nevada, Page 2553 (Chapter 455, SB 45)κ

 

      2.  If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court , on written motion of the witness and upon notice to the parties , may direct that his deposition be taken. After the deposition has been subscribed , the court may discharge the witness.

      3.  This section does not apply to the prosecutor, or to an accomplice in the commission of the offense charged.

      4.  As used in this section:

      (a) “Older person” means a person who is 70 years of age or older.

      (b) “Vulnerable person” has the meaning ascribed to it in subsection 7 of NRS 200.5092.

      Sec. 2.  (Deleted by amendment.)

      Sec. 3.  This act becomes effective upon passage and approval.

________

 

CHAPTER 456, SB 54

Senate Bill No. 54–Committee on Health and Education

 

CHAPTER 456

 

AN ACT relating to public health; revising provisions governing the State Health Officer; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Existing law requires the State Health Officer to be a citizen of the United States and to be licensed, or eligible for licensure, as a physician or administrative physician in Nevada. (NRS 439.090) Section 1 of this bill revises those qualifications by requiring the State Health Officer to be a citizen of the United States, to have not less than 5 years’ experience in population-based health care and to be: (1) licensed or eligible for a license as a physician or administrative physician in Nevada; (2) licensed or eligible for a license as a physician or administrative physician in another state; or (3) a physician or administrative physician with a master’s or doctoral degree in public health or a related field. Section 2 of this bill provides that if the State Health Officer is not licensed to practice medicine in this State, he shall not, while carrying out his duties, engage in the practice of medicine. (NRS 439.130)

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  NRS 439.090 is hereby amended to read as follows:

      439.090  1.  The State Health Officer must:

      (a) Be a citizen of the United States [.] ;

      (b) Have not less than 5 years’ experience in population-based health care; and

      (c) Be [licensed,] :

            (1) Licensed in good standing or eligible for [licensure,] a license as a physician or administrative physician in Nevada [.] ;

            (2) Licensed in good standing or eligible for a license as a physician or administrative physician in the District of Columbia or in any state or territory of the United States; or

            (3) A physician or administrative physician who has a master’s degree or doctoral degree in public health or a related field.

 


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κ2009 Statutes of Nevada, Page 2554 (Chapter 456, SB 54)κ

 

      2.  The Administrator must have 2 years’ experience, or the equivalent, in a responsible administrative position in:

      (a) A full-time county or city health facility or department; or

      (b) A major health program at a state or national level.

      3.  As used in this section, “population-based health care” means the use of various approaches to medical care for specific groups or populations based upon common demographic characteristics, risk factors or diseases.

      Sec. 2.  NRS 439.130 is hereby amended to read as follows:

      439.130  1.  The State Health Officer shall:

      (a) Enforce all laws and regulations pertaining to the public health.

      (b) Investigate causes of disease, epidemics, source of mortality, nuisances affecting the public health, and all other matters related to the health and life of the people, and to this end he may enter upon and inspect any public or private property in the State.

      (c) Direct the work of subordinates and may authorize them to act in his place and stead.

      (d) Perform such other duties as the Director may, from time to time, prescribe.

Κ If the State Health Officer is not licensed to practice medicine in this State, he shall not, in carrying out his duties as the State Health Officer, engage in the practice of medicine.

      2.  The Administrator shall direct the work of the Health Division, administer the Division and perform such other duties as the Director may, from time to time, prescribe.

      Sec. 3.  Notwithstanding the amendatory provisions of section 1 of this act, any person who, on the effective date of this act, is serving as the State Health Officer and who is otherwise qualified to serve as the State Health Officer on that date may continue to serve in that capacity until his successor is appointed by the Director of the Department of Health and Human Services pursuant to chapter 439 of NRS.

      Sec. 4.  This act becomes effective upon passage and approval.

________

 


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κ2009 Statutes of Nevada, Page 2555κ

 

CHAPTER 457, SB 101

Senate Bill No. 101–Committee on Judiciary

 

CHAPTER 457

 

AN ACT relating to securities; revising the provisions governing the examination of certain records by the Administrator of the Securities Division of the Office of the Secretary of State; increasing the amount of certain civil penalties for certain violations relating to securities; revising the provisions governing recovery of the costs of investigation and prosecution of certain violations; authorizing the Department of Motor Vehicles to issue a driver’s license to a criminal investigator employed by the Secretary of State who is engaged in an undercover investigation; making various other changes relating to securities; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 2 of this bill: (1) changes the name of the entity that administers examinations for a sales representative from the National Association of Securities Dealers to the Financial Industry Regulatory Authority; and (2) requires a sales representative to pass either the Uniform Investment Adviser Law Examination or the Uniform Combined State Law Examination and the General Securities Registered Representative Examination. (NRS 90.340)

      Sections 3 and 4 of this bill make technical changes to include references to the Investment Adviser Registration Depository and the Financial Industry Regulatory Authority. (NRS 90.350)

      Section 5 of this bill removes the requirement in existing law that the Administrator of the Securities Division of the Office of the Secretary of State must obtain authorization from the Attorney General or his designee to examine the records of a person issuing securities who is not licensed but is required to be licensed. (NRS 90.410)

      Section 7 of this bill increases the civil penalty that the Administrator may impose for a willful violation of chapter 90 of NRS from $2,500 for a single violation and $100,000 for multiple violations to $25,000 for each violation. (NRS 90.630) Section 7 also authorizes the Administrator to order reimbursement for the costs of a proceeding to impose sanctions, including investigative costs and attorney’s fees, rather than applying to a court for an order for reimbursement of such costs.

      Section 7.5 of this bill increases the civil penalty that a district court may impose for a violation of chapter 90 of NRS from $2,500 for a single violation and $100,000 for multiple violations to $25,000 for each violation. (NRS 90.640)

      Section 8 of this bill provides that a court may order a person who is convicted of a willful violation of a statute, a regulation or an order of the Administrator to pay the costs of investigation and prosecution incurred by the Division and the Office of the Attorney General. (NRS 90.650)

      Section 9 of this bill provides that chapter 239A of NRS, which contains provisions regarding disclosure of financial records to governmental agencies, does not prohibit the Administrator from requesting of a financial institution, and the institution from responding to the request, as to whether a person has an account or accounts with that financial institution and, if so, any identifying numbers of the account or accounts. (NRS 239A.070)

 


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κ2009 Statutes of Nevada, Page 2556 (Chapter 457, SB 101)κ

 

      Section 9.5 of this bill increases: (1) the period that the court may delay the notification of a customer that a subpoena for the financial records of the customer has been issued from 60 days to 90 days; and (2) the period for any additional extension of such a delayed notification from 30 days to 45 days. (NRS 239A.100)

      Sections 10 and 11 of this bill authorize the Department of Motor Vehicles to issue a driver’s license for purposes of identification only to a criminal investigator employed by the Secretary of State who is engaged in an undercover investigation. (NRS 483.340)

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  (Deleted by amendment.)

      Sec. 2.  NRS 90.340 is hereby amended to read as follows:

      90.340  1.  The following persons are exempt from licensing under NRS 90.330:

      (a) An investment adviser who is registered or is not required to be registered as an investment adviser under the Investment Advisers Act of 1940 if:

            (1) Its only clients in this State are other investment advisers, broker-dealers or financial or institutional investors;

            (2) The investment adviser has no place of business in this State and directs business communications in this State to a person who is an existing client of the investment adviser and whose principal place of residence is not in this State; or

            (3) The investment adviser has no place of business in this State and during any 12 consecutive months it does not direct business communications in this State to more than five present or prospective clients other than those specified in subparagraph (1), whether or not the person or client to whom the communication is directed is present in this State;

      (b) A representative of an investment adviser who is employed by an investment adviser who is exempt from licensing pursuant to paragraph (a);

      (c) A sales representative licensed pursuant to NRS 90.310 who:

            (1) Has passed [one of] the following examinations administered by the [National Association of Securities Dealers, Inc.:] Financial Industry Regulatory Authority:

                  (I) The Uniform Investment Adviser Law Examination, designated as the Series 65 examination; or

                  (II) The [examination] Uniform Combined State Law Examination designated as the Series 66 examination [;] and the General Securities Registered Representative Examination, designated as the Series 7 examination; or

            (2) On January 1, 1996, has been continuously licensed in this State as a sales representative for 5 years or more; and

      (d) Other investment advisers and representatives of investment advisers the Administrator by regulation or order exempts.

      2.  The Administrator may, by order or rule, waive the [examination] examinations required by subparagraph (1) of paragraph (c) of subsection 1 for an applicant or a class of applicants if the Administrator determines that the examination is not necessary for the protection of investors because of the training and experience of the applicant or class of applicants.

 


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κ2009 Statutes of Nevada, Page 2557 (Chapter 457, SB 101)κ

 

      Sec. 3.  NRS 90.350 is hereby amended to read as follows:

      90.350  1.  Except as otherwise provided in subsection 3, an applicant for licensing as a broker-dealer, sales representative, investment adviser, 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 Investment Adviser Registration Depository, the Central Registration Depository or another depository for registrations that has been approved by the Administrator by regulation or order. 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 [,] :

      (a) “Central Registration Depository” means the Central Registration Depository of the [National Association of Securities Dealers, Inc.,] Financial Industry Regulatory Authority, or its successor, and the North American Securities Administrators Association or its successor.

      (b) “Investment Adviser Registration Depository” means the Investment Adviser Registration Depository of the Financial Industry Regulatory Authority, or its successor, and the North American Securities Administrators Association or its successor.

      Sec. 4.  NRS 90.350 is hereby amended to read as follows:

      90.350  1.  Except as otherwise provided in subsection 3, an applicant for licensing as a broker-dealer, sales representative, investment adviser, 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 Investment Adviser Registration Depository, the Central Registration Depository or another depository for registrations that has been approved by the Administrator by regulation or order. 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.

 


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κ2009 Statutes of Nevada, Page 2558 (Chapter 457, SB 101)κ

 

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 [,] :

      (a) “Central Registration Depository” means the Central Registration Depository of the [National Association of Securities Dealers, Inc.,] Financial Industry Regulatory Authority, or its successor, and the North American Securities Administrators Association or its successor.

      (b) “Investment Adviser Registration Depository” means the Investment Adviser Registration Depository of the Financial Industry Regulatory Authority, or its successor, and the North American Securities Administrators Association or its successor.

      Sec. 5.  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,] Licensed broker-dealers, sales representatives, investment advisers and representatives of investment advisers shall make their records available to the Administrator in legible form.

      2.  The Administrator, without previous notice, may examine, in a manner reasonable under the circumstances and as the Administrator considers necessary or appropriate in the public interest and for the protection of investors, the records, within or without this State, of any person who would otherwise be required to be licensed pursuant to NRS 90.310 or 90.330. Such persons shall make their records available to the Administrator in legible form.

      3.  Except as otherwise provided in subsection [3,] 4, 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.] 4.  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.] 5.  The Administrator by regulation may impose a reasonable fee for the expense of conducting an examination under this section.

      Sec. 6.  NRS 90.520 is hereby amended to read as follows:

      90.520  1.  As used in this section:

      (a) “Guaranteed” means guaranteed as to payment of all or substantially all of principal and interest or dividends.

      (b) “Insured” means insured as to payment of all or substantially all of principal and interest or dividends.

      2.  Except as otherwise provided in subsections 4 and 5, the following securities are exempt from NRS 90.460 and 90.560:

      (a) A security, including a revenue obligation, issued, insured or guaranteed by the United States, an agency or corporate or other instrumentality of the United States, an international agency or corporate or other instrumentality of which the United States and one or more foreign governments are members, a state, a political subdivision of a state, or an agency or corporate or other instrumentality of one or more states or their political subdivisions, or a certificate of deposit [.]

 


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κ2009 Statutes of Nevada, Page 2559 (Chapter 457, SB 101)κ

 

other instrumentality of which the United States and one or more foreign governments are members, a state, a political subdivision of a state, or an agency or corporate or other instrumentality of one or more states or their political subdivisions, or a certificate of deposit [.] for any of the foregoing, but this exemption does not include a security payable solely from revenues to be received from an enterprise unless the:

            (1) Payments are insured or guaranteed by the United States, an agency or corporate or other instrumentality of the United States, an international agency or corporate or other instrumentality of which the United States and one or more foreign governments are members, a state, a political subdivision of a state, or an agency or corporate or other instrumentality of one or more states or their political subdivisions, or by a person whose securities are exempt from registration pursuant to paragraphs (b) to (e), inclusive, or (g), or the revenues from which the payments are to be made are a direct obligation of such a person;

            (2) Security is issued by this State or an agency, instrumentality or political subdivision of this State; or

            (3) Payments are insured or guaranteed by a person who, within the 12 months next preceding the date on which the securities are issued, has received a rating within one of the top four rating categories of either Moody’s Investors Service, Inc., or Standard and Poor’s Ratings Services.

      (b) A security issued, insured or guaranteed by Canada, a Canadian province or territory, a political subdivision of Canada or of a Canadian province or territory, an agency or corporate or other instrumentality of one or more of the foregoing, or any other foreign government or governmental combination or entity with which the United States maintains diplomatic relations, if the security is recognized as a valid obligation by the issuer, insurer or guarantor.

      (c) A security issued by and representing an interest in or a direct obligation of a depository institution if the deposit or share accounts of the depository institution are insured by the Federal Deposit Insurance Corporation, the National Credit Union Share Insurance Fund or a successor to an applicable agency authorized by federal law.

      (d) A security issued by and representing an interest in or a direct obligation of, or insured or guaranteed by, an insurance company organized under the laws of any state and authorized to do business in this State.

      (e) A security issued or guaranteed by a railroad, other common carrier, public utility or holding company that is:

            (1) Subject to the jurisdiction of the Surface Transportation Board;

            (2) A registered holding company under the Public Utility Holding Company Act of 1935 or a subsidiary of a registered holding company within the meaning of that act;

            (3) Regulated in respect to its rates and charges by a governmental authority of the United States or a state; or

            (4) Regulated in respect to the issuance or guarantee of the security by a governmental authority of the United States, a state, Canada, or a Canadian province or territory.

      (f) Equipment trust certificates in respect to equipment leased or conditionally sold to a person, if securities issued by the person would be exempt pursuant to this section.

 


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κ2009 Statutes of Nevada, Page 2560 (Chapter 457, SB 101)κ

 

      (g) A security listed or approved for listing upon notice of issuance on the New York Stock Exchange, the American Stock Exchange, the Chicago Stock Exchange, the Pacific Stock Exchange or other exchange designated by the Administrator, any other security of the same issuer which is of senior or substantially equal rank, a security called for by subscription right or warrant so listed or approved, or a warrant or right to purchase or subscribe to any of the foregoing.

      (h) A security designated or approved for designation upon issuance or notice of issuance for inclusion in the national market system by the [National Association of Securities Dealers, Inc.,] Financial Industry Regulatory Authority, any other security of the same issuer which is of senior or substantially equal rank, a security called for by subscription right or warrant so designated, or a warrant or a right to purchase or subscribe to any of the foregoing.

      (i) An option issued by a clearing agency registered under the Securities Exchange Act of 1934, other than an off-exchange futures contract or substantially similar arrangement, if the security, currency, commodity or other interest underlying the option is:

            (1) Registered under NRS 90.470, 90.480 or 90.490;

            (2) Exempt pursuant to this section; or

            (3) Not otherwise required to be registered under this chapter.

      (j) A security issued by a person organized and operated not for private profit but exclusively for a religious, educational, benevolent, charitable, fraternal, social, athletic or reformatory purpose, or as a chamber of commerce, or trade or professional association if at least 10 days before the sale of the security the issuer has filed with the Administrator a notice setting forth the material terms of the proposed sale and copies of any sales and advertising literature to be used and the Administrator by order does not disallow the exemption within the next 5 full business days.

      (k) A promissory note, draft, bill of exchange or banker’s acceptance that evidences an obligation to pay cash within 9 months after the date of issuance, exclusive of days of grace, is issued in denominations of at least $50,000 and receives a rating in one of the three highest rating categories from a nationally recognized statistical rating organization, or a renewal of such an obligation that is likewise limited, or a guarantee of such an obligation or of a renewal.

      (l) A security issued in connection with an employees’ stock purchase, savings, option, profit-sharing, pension or similar employees’ benefit plan.

      (m) A membership or equity interest in, or a retention certificate or like security given in lieu of a cash patronage dividend issued by, a cooperative organized and operated as a nonprofit membership cooperative under the cooperative laws of any state if not traded to the general public.

      (n) A security issued by an issuer registered as an open-end management investment company or unit investment trust under section 8 of the Investment Company Act of 1940 if:

            (1) The issuer is advised by an investment adviser that is a depository institution exempt from registration under the Investment Advisers Act of 1940 or that is currently registered as an investment adviser, and has been registered, or is affiliated with an adviser that has been registered, as an investment adviser under the Investment Advisers Act of 1940 for at least 3 years next preceding an offer or sale of a security claimed to be exempt pursuant to this paragraph, and the issuer has acted, or is affiliated with an investment adviser that has acted, as investment adviser to one or more registered investment companies or unit investment trusts for at least 3 years next preceding an offer or sale of a security claimed to be exempt under this paragraph; or

 


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κ2009 Statutes of Nevada, Page 2561 (Chapter 457, SB 101)κ

 

investment adviser that has acted, as investment adviser to one or more registered investment companies or unit investment trusts for at least 3 years next preceding an offer or sale of a security claimed to be exempt under this paragraph; or

            (2) The issuer has a sponsor that has at all times throughout the 3 years before an offer or sale of a security claimed to be exempt pursuant to this paragraph sponsored one or more registered investment companies or unit investment trusts the aggregate total assets of which have exceeded $100,000,000.

      3.  For the purpose of paragraph (n) of subsection 2, an investment adviser is affiliated with another investment adviser if it controls, is controlled by, or is under common control with the other investment adviser.

      4.  The exemption provided by paragraph (n) of subsection 2 is available only if the person claiming the exemption files with the Administrator a notice of intention to sell which sets forth the name and address of the issuer and the securities to be offered in this State and pays a fee:

      (a) Of $500 for the initial claim of exemption and the same amount at the beginning of each fiscal year thereafter in which securities are to be offered in this State, in the case of an open-end management company; or

      (b) Of $300 for the initial claim of exemption in the case of a unit investment trust.

      5.  An exemption provided by paragraph (c), (e), (f), (i) or (k) of subsection 2 is available only if, within the 12 months immediately preceding the use of the exemption, a notice of claim of exemption has been filed with the Administrator and a nonrefundable fee of $300 has been paid.

      Sec. 7.  NRS 90.630 is hereby amended to read as follows:

      90.630  1.  If the Administrator reasonably believes, whether or not based upon an investigation conducted under NRS 90.620, that:

      (a) The sale of a security is subject to registration under this chapter and the security is being offered or has been offered or sold by the issuer or another person in violation of NRS 90.460; or

      (b) A person is acting as a broker-dealer or investment adviser in violation of NRS 90.310 or 90.330,

Κ the Administrator, in addition to any specific power granted under this chapter and subject to compliance with the requirements of NRS 90.820, may issue, without a prior hearing, a summary order against the person engaged in the prohibited activities, directing him to desist and refrain from further activity until the security is registered or he is licensed under this chapter. The summary order to cease and desist must state the section of this chapter or regulation or order of the Administrator under this chapter which the Administrator reasonably believes has been or is being violated.

      2.  If the Administrator reasonably believes, whether or not based upon an investigation conducted under NRS 90.620, that a person has violated this chapter or a regulation or order of the Administrator under this chapter, the Administrator, in addition to any specific power granted under this chapter, after giving notice by registered or certified mail and conducting a hearing in an administrative proceeding, unless the right to notice and hearing is waived by the person against whom the sanction is imposed, may:

      (a) Issue an order against him to cease and desist;

      (b) Censure him if he is a licensed broker-dealer, sales representative, investment adviser or representative of an investment adviser;

 


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κ2009 Statutes of Nevada, Page 2562 (Chapter 457, SB 101)κ

 

      (c) Bar or suspend him from association with a licensed broker-dealer or investment adviser in this State;

      (d) Issue an order against an applicant, licensed person or other person who willfully violates this chapter, imposing a civil penalty of not more than [$2,500] $25,000 for [a single] each violation ; or [$100,000 for multiple violations in a single proceeding or a series of related proceedings; or]

      (e) Initiate one or more of the actions specified in NRS 90.640.

      3.  If the person to whom the notice is addressed pursuant to subsection 2 does not request a hearing within 45 days after receipt of the notice, he waives his right to a hearing and the Administrator shall issue a permanent order. If a hearing is requested, the Administrator shall set the matter for hearing not less than 15 days nor more than 60 days after he receives the request for a hearing. The Administrator shall promptly notify the parties by registered or certified mail of the time and place set for the hearing.

      4.  Imposition of the sanctions under this section is limited as follows:

      (a) If the Administrator revokes the license of a broker-dealer, sales representative, investment adviser or representative of an investment adviser or bars a person from association with a licensed broker-dealer or investment adviser under this section or NRS 90.420, the imposition of that sanction precludes imposition of a civil penalty under subsection 2; and

      (b) The imposition by the Administrator of one or more sanctions under subsection 2 with respect to a specific violation precludes him from later imposing any other sanctions under paragraphs (a) to (d), inclusive, of subsection 2 with respect to the violation.

      5.  For the purposes of determining any sanction to be imposed pursuant to paragraphs (a) to (d), inclusive, of subsection 2, the Administrator shall consider, among other factors, the frequency and persistence of the conduct constituting a violation of this chapter, or a regulation or order of the Administrator under this chapter, the number of persons adversely affected by the conduct and the resources of the person committing the violation.

      6.  If a sanction is imposed pursuant to this section, reimbursement for the costs of the proceeding, including investigative costs and attorney’s fees [,] incurred, may be ordered and recovered by the Administrator. Money recovered for reimbursement of the investigative costs and attorney’s fees must be deposited in the State General Fund for credit to the Revolving Account for Investigation, Enforcement and Education created by NRS 90.851.

      Sec. 7.5.  NRS 90.640 is hereby amended to read as follows:

      90.640  1.  Upon a showing by the Administrator that a person has violated or is about to violate this chapter, or a regulation or order of the Administrator under this chapter, the appropriate district court may grant or impose one or more of the following appropriate legal or equitable remedies:

      (a) Upon a showing that a person has violated this chapter, or a regulation or order of the Administrator under this chapter, the court may singly or in combination:

            (1) Issue a temporary restraining order, permanent or temporary prohibitory or mandatory injunction or a writ of prohibition or mandamus;

            (2) Impose a civil penalty of not more than [$2,500] $25,000 for [a single] each violation ; [or $100,000 for multiple violations in a single proceeding or a series of related proceedings;]

            (3) Issue a declaratory judgment;

            (4) Order restitution to investors;

 


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κ2009 Statutes of Nevada, Page 2563 (Chapter 457, SB 101)κ

 

            (5) Provide for the appointment of a receiver or conservator for the defendant or the defendant’s assets;

            (6) Order payment of the Division’s investigative costs; or

            (7) Order such other relief as the court deems just.

      (b) Upon a showing that a person is about to violate this chapter, or a regulation or order of the Administrator under this chapter, a court may issue:

            (1) A temporary restraining order;

            (2) A temporary or permanent injunction; or

            (3) A writ of prohibition or mandamus.

      2.  In determining the appropriate relief to grant, the court shall consider enforcement actions taken and sanctions imposed by the Administrator under NRS 90.630 in connection with the transactions constituting violations of this chapter or a regulation or order of the Administrator under this chapter. If a remedial action is imposed pursuant to this section, the costs of the proceeding, including investigative costs and attorney’s fees, may be recovered by the Administrator.

      3.  The court shall not require the Administrator to post a bond in an action under this section.

      4.  Upon a showing by the administrator or securities agency of another state that a person has violated the securities act of that state or a regulation or order of the administrator or securities agency of that state, the appropriate district court may grant, in addition to any other legal or equitable remedies, one or more of the following remedies:

      (a) Appointment of a receiver, conservator or ancillary receiver or conservator for the defendant or the defendant’s assets located in this State; or

      (b) Other relief as the court deems just.

      Sec. 8.  NRS 90.650 is hereby amended to read as follows:

      90.650  1.  A person who willfully violates:

      (a) A provision of this chapter, except NRS 90.600, or who violates NRS 90.600 knowing that the statement made is false or misleading in any material respect;

      (b) A regulation adopted pursuant to this chapter; or

      (c) An order denying, suspending or revoking the effectiveness of registration or an order to cease and desist issued by the Administrator pursuant to this chapter,

Κ 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 1 year and a maximum term of not more than 20 years, or by a fine of not more than $500,000, or by both fine and imprisonment, for each violation. In addition to any other penalty, the court shall order the person to pay restitution [.] and may order the person to repay the costs of investigation and prosecution incurred by the Division and the Office of the Attorney General. Money recovered for reimbursement of the costs of investigation and prosecution must be deposited in the State General Fund for credit to the Revolving Account for Investigation, Enforcement and Education created by NRS 90.851.

      2.  A person convicted of violating a regulation or order under this chapter may be fined, but must not be imprisoned, if the person proves lack of knowledge of the regulation or order.

      3.  This chapter does not limit the power of the State to punish a person for conduct which constitutes a crime under other law.

 


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κ2009 Statutes of Nevada, Page 2564 (Chapter 457, SB 101)κ

 

      Sec. 9.  NRS 239A.070 is hereby amended to read as follows:

      239A.070  This chapter does not apply to any subpoena issued pursuant to title 14 or chapters 616A to 617, inclusive, of NRS or prohibit:

      1.  Dissemination of any financial information which is not identified with or identifiable as being derived from the financial records of a particular customer.

      2.  The Attorney General, district attorney, Department of Taxation, Director of the Department of Health and Human Services, Administrator of the Securities Division of the Office of the Secretary of State, public administrator, sheriff or a police department from requesting of a financial institution, and the institution from responding to the request, as to whether a person has an account or accounts with that financial institution and, if so, any identifying numbers of the account or accounts.

      3.  A financial institution, in its discretion, from initiating contact with and thereafter communicating with and disclosing the financial records of a customer to appropriate governmental agencies concerning a suspected violation of any law.

      4.  Disclosure of the financial records of a customer incidental to a transaction in the normal course of business of the financial institution if the director, officer, employee or agent of the financial institution who makes or authorizes the disclosure has no reasonable cause to believe that such records will be used by a governmental agency in connection with an investigation of the customer.

      5.  A financial institution from notifying a customer of the receipt of a subpoena or a search warrant to obtain his financial records, except when ordered by a court to withhold such notification.

      6.  The examination by or disclosure to any governmental regulatory agency of financial records which relate solely to the exercise of its regulatory function if the agency is specifically authorized by law to examine, audit or require reports of financial records of financial institutions.

      7.  The disclosure to any governmental agency of any financial information or records whose disclosure to that particular agency is required by the tax laws of this State.

      8.  The disclosure of any information pursuant to NRS 425.393, 425.400 or 425.460.

      9.  A governmental agency from obtaining a credit report or consumer credit report from anyone other than a financial institution.

      Sec. 9.5.  NRS 239A.100 is hereby amended to read as follows:

      239A.100  1.  Except as provided in subsection 2, a subpoena authorizing a governmental agency to obtain financial records may be served upon a financial institution only if:

      (a) A copy of the subpoena is served upon the customer in the manner provided by law for the service of subpoenas, except that the copy may be served by an employee of the governmental agency;

      (b) The subpoena includes the name of the agency in whose name it is issued and the statutory purpose for which the information is to be obtained; and

      (c) The customer has not moved to quash the subpoena within 10 days after service of the copy of the subpoena upon the customer.

      2.  A governmental agency issuing or seeking a subpoena to obtain financial records may petition a court of competent jurisdiction to order that service upon the customer or the 10-day period provided in subsection 1 be waived or shortened.

 


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κ2009 Statutes of Nevada, Page 2565 (Chapter 457, SB 101)κ

 

waived or shortened. The court may issue the order upon a showing that the agency can reasonably infer from facts relevant to its investigation of the customer that a law subject to the agency’s jurisdiction has been or is about to be violated. In granting a petition to waive service upon the customer, the court shall also order the agency to notify the customer in writing within a period determined by the court, but not to exceed [60] 90 days. The notice shall specify the name of the agency in whose name the subpoena was issued, the financial records which were examined under the subpoena and the statutory purpose for which the information was obtained. The time of notification may be extended for additional [30-day] 45-day periods upon petition and good cause shown.

      3.  A court may order a financial institution to withhold notification to a customer of the receipt of the subpoena when the court issues an order under subsection 2 and if it finds that the notification would impede the investigation.

      4.  If a customer files a motion to quash the subpoena, the proceedings on the motion shall be afforded priority on the court calendar and the matter shall be heard within 10 days after the filing of the motion.

      Sec. 10.  NRS 483.340 is hereby amended to read as follows:

      483.340  1.  The Department shall, upon payment of the required fee, issue to every qualified applicant a driver’s license indicating the type or class of vehicles the licensee may drive. The license must bear a unique number assigned to the licensee pursuant to NRS 483.345, the licensee’s social security number, if he has one, unless he requests that it not appear on the license, the name, date of birth, mailing address and a brief description of the licensee, and a space upon which the licensee shall write his usual signature in ink immediately upon receipt of the license. A license is not valid until it has been so signed by the licensee.

      2.  The Department may issue a driver’s license for purposes of identification only for use by officers of local police and sheriffs’ departments, agents of the Investigation Division of the Department of Public Safety while engaged in special undercover investigations relating to narcotics or prostitution or for other undercover investigations requiring the establishment of a fictitious identity, federal agents while engaged in undercover investigations, investigators employed by the Attorney General while engaged in undercover investigations , criminal investigators employed by the Secretary of State while engaged in undercover investigations and agents of the State Gaming Control Board while engaged in investigations pursuant to NRS 463.140. An application for such a license must be made through the head of the police or sheriff’s department, the Chief of the Investigation Division of the Department of Public Safety, the director of the appropriate federal agency, the Attorney General , the Secretary of State or his designee or the Chairman of the State Gaming Control Board. Such a license is exempt from the fees required by NRS 483.410. The Department, by regulation, shall provide for the cancellation of any such driver’s license upon the completion of the special investigation for which it was issued.

      3.  Except as otherwise provided in NRS 239.0115, information pertaining to the issuance of a driver’s license pursuant to subsection 2 is confidential.

 


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κ2009 Statutes of Nevada, Page 2566 (Chapter 457, SB 101)κ

 

      4.  It is unlawful for any person to use a driver’s license issued pursuant to subsection 2 for any purpose other than the special investigation for which it was issued.

      5.  At the time of the issuance or renewal of the driver’s license, the Department shall:

      (a) Give the holder the opportunity to have indicated on his driver’s license that he wishes to be a donor of all or part of his body pursuant to NRS 451.500 to 451.598, inclusive, or to refuse to make an anatomical gift of his body or part of his body.

      (b) Give the holder the opportunity to have indicated whether he wishes to donate $1 or more to the Anatomical Gift Account created by NRS 460.150.

      (c) Provide to each holder who is interested in becoming a donor information relating to anatomical gifts, including the procedure for registering as a donor with the donor registry with which the Department has entered into a contract pursuant to this paragraph. To carry out this paragraph, the Department shall, on such terms as it deems appropriate, enter into a contract with a donor registry that is in compliance with the provisions of NRS 451.500 to 451.598, inclusive.

      (d) If the Department has established a program for imprinting a symbol or other indicator of a medical condition on a driver’s license pursuant to NRS 483.3485, give the holder the opportunity to have a symbol or other indicator of a medical condition imprinted on his driver’s license.

      6.  If the holder wishes to make a donation to the Anatomical Gift Account, the Department shall collect the donation and deposit the money collected in the State Treasury for credit to the Anatomical Gift Account.

      7.  The Department shall submit to the donor registry with which the Department has entered into a contract pursuant to paragraph (c) of subsection 5 information from the records of the Department relating to persons who have drivers’ licenses that indicate the intention of those persons to make an anatomical gift. The Department shall adopt regulations to carry out the provisions of this subsection.

      Sec. 11.  NRS 483.340 is hereby amended to read as follows:

      483.340  1.  The Department shall, upon payment of the required fee, issue to every qualified applicant a driver’s license indicating the type or class of vehicles the licensee may drive.

      2.  The Department shall adopt regulations prescribing the information that must be contained on a driver’s license.

      3.  The Department may issue a driver’s license for purposes of identification only for use by officers of local police and sheriffs’ departments, agents of the Investigation Division of the Department of Public Safety while engaged in special undercover investigations relating to narcotics or prostitution or for other undercover investigations requiring the establishment of a fictitious identity, federal agents while engaged in undercover investigations, investigators employed by the Attorney General while engaged in undercover investigations , criminal investigators employed by the Secretary of State while engaged in undercover investigations and agents of the State Gaming Control Board while engaged in investigations pursuant to NRS 463.140. An application for such a license must be made through the head of the police or sheriff’s department, the Chief of the Investigation Division of the Department of Public Safety, the director of the appropriate federal agency, the Attorney General , the Secretary of State or his designee or the Chairman of the State Gaming Control Board.

 


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κ2009 Statutes of Nevada, Page 2567 (Chapter 457, SB 101)κ

 

Secretary of State or his designee or the Chairman of the State Gaming Control Board. Such a license is exempt from the fees required by NRS 483.410. The Department, by regulation, shall provide for the cancellation of any such driver’s license upon the completion of the special investigation for which it was issued.

      4.  Except as otherwise provided in NRS 239.0115, information pertaining to the issuance of a driver’s license pursuant to subsection 3 is confidential.

      5.  It is unlawful for any person to use a driver’s license issued pursuant to subsection 3 for any purpose other than the special investigation for which it was issued.

      6.  At the time of the issuance or renewal of the driver’s license, the Department shall:

      (a) Give the holder the opportunity to have indicated on his driver’s license that he wishes to be a donor of all or part of his body pursuant to NRS 451.500 to 451.598, inclusive, or to refuse to make an anatomical gift of his body or part of his body.

      (b) Give the holder the opportunity to have indicated whether he wishes to donate $1 or more to the Anatomical Gift Account created by NRS 460.150.

      (c) Provide to each holder who is interested in becoming a donor information relating to anatomical gifts, including the procedure for registering as a donor with the donor registry with which the Department has entered into a contract pursuant to this paragraph. To carry out this paragraph, the Department shall, on such terms as it deems appropriate, enter into a contract with a donor registry that is in compliance with the provisions of NRS 451.500 to 451.598, inclusive.

      (d) If the Department has established a program for imprinting a symbol or other indicator of a medical condition on a driver’s license pursuant to NRS 483.3485, give the holder the opportunity to have a symbol or other indicator of a medical condition imprinted on his driver’s license.

      7.  If the holder wishes to make a donation to the Anatomical Gift Account, the Department shall collect the donation and deposit the money collected in the State Treasury for credit to the Anatomical Gift Account.

      8.  The Department shall submit to the donor registry with which the Department has entered into a contract pursuant to paragraph (c) of subsection 6 information from the records of the Department relating to persons who have drivers’ licenses that indicate the intention of those persons to make an anatomical gift. The Department shall adopt regulations to carry out the provisions of this subsection.

      Sec. 12.  1.  This section and sections 1, 2, 3 and 5 to 10, inclusive, of this act become effective on July 1, 2009.

      2.  Section 4 of this act becomes 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,

Κ are repealed by the Congress of the United States.

 


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κ2009 Statutes of Nevada, Page 2568 (Chapter 457, SB 101)κ

 

      3.  Section 11 of this act becomes effective upon the later of:

      (a) The effective date of the regulations issued by the Secretary of Homeland Security to implement the provisions of the Real ID Act of 2005; or

      (b) The expiration of any extension of time granted to this State by the Secretary of Homeland Security to comply with the provisions of the Real ID Act of 2005.

________

 

CHAPTER 458, SB 113

Senate Bill No. 113–Senator Horsford

 

CHAPTER 458

 

AN ACT relating to the criminal justice system; creating statutory subcommittees of the Advisory Commission on the Administration of Justice; transferring responsibility for staff support of the Advisory Commission from the Attorney General to the Legislative Counsel Bureau; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Section 2 of this bill creates in statute the Subcommittee on Juvenile Justice of the Advisory Commission on the Administration of Justice. Section 2 also: (1) requires the Chairman of the Commission to appoint the members of the Subcommittee; (2) requires the Subcommittee to study issues related to juvenile justice and report to the Commission with recommendations to address such issues; and (3) sets forth the salaries and per diem that members of the Subcommittee may receive.

      Section 3 of this bill creates in statute a Subcommittee on Victims of Crime of the Advisory Commission on the Administration of Justice. Section 3 also: (1) requires the Chairman of the Commission to appoint the members of the Subcommittee; (2) requires the Subcommittee to study issues related to victims of crime and report to the Commission with recommendations to address such issues; and (3) sets forth the salaries and per diem that members of the Subcommittee may receive.

      Section 5 of this bill transfers responsibility for staff support of the Advisory Commission from the Attorney General to the Director of the Legislative Counsel Bureau.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 176 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.

      Sec. 2.  1.  There is hereby created the Subcommittee on Juvenile Justice of the Commission.

      2.  The Chairman of the Commission shall appoint the members of the Subcommittee and designate one of the members of the Subcommittee as Chairman of the Subcommittee. The Chairman of the Subcommittee must be a member of the Commission.

 


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κ2009 Statutes of Nevada, Page 2569 (Chapter 458, SB 113)κ

 

      3.  The Subcommittee shall meet at the times and places specified by a call of the Chairman. A majority of the members of the Subcommittee constitutes a quorum, and a quorum may exercise any power or authority conferred on the Subcommittee.

      4.  The Subcommittee shall consider issues related to juvenile justice and shall evaluate, review and submit a report to the Commission with recommendations concerning such issues.

      5.  Any Legislators who are members of the Subcommittee are entitled to receive the salary provided for a majority of the members of the Legislature during the first 60 days of the preceding session for each day’s attendance at a meeting of the Subcommittee.

      6.  While engaged in the business of the Subcommittee, to the extent of legislative appropriation, each member of the Subcommittee is entitled to receive the per diem allowance and travel expenses provided for state officers and employees generally.

      Sec. 3.  1.  There is hereby created the Subcommittee on Victims of Crime of the Commission.

      2.  The Chairman of the Commission shall appoint the members of the Subcommittee and designate one of the members of the Subcommittee as Chairman of the Subcommittee. The Chairman of the Subcommittee must be a member of the Commission.

      3.  The Subcommittee shall meet at the times and places specified by a call of the Chairman. A majority of the members of the Subcommittee constitutes a quorum, and a quorum may exercise any power or authority conferred on the Subcommittee.

      4.  The Subcommittee shall consider issues related to victims of crime and shall evaluate, review and submit a report to the Commission with recommendations concerning such issues.

      5.  Any Legislators who are members of the Subcommittee are entitled to receive the salary provided for a majority of the members of the Legislature during the first 60 days of the preceding session for each day’s attendance at a meeting of the Subcommittee.

      6.  While engaged in the business of the Subcommittee, to the extent of legislative appropriation, each member of the Subcommittee is entitled to receive the per diem allowance and travel expenses provided for state officers and employees generally.

      Sec. 4.  NRS 176.0121 is hereby amended to read as follows:

      176.0121  As used in NRS 176.0121 to 176.0129, inclusive, and sections 2 and 3 of this act, “Commission” means the Advisory Commission on the Administration of Justice.

      Sec. 5.  NRS 176.0123 is hereby amended to read as follows:

      176.0123  1.  The Advisory Commission on the Administration of Justice is hereby created. The Commission consists of:

      (a) One member who is a district judge, appointed by the governing body of the Nevada District Judges Association;

      (b) One member who is a justice of the Supreme Court of Nevada or a retired justice of the Supreme Court of Nevada, appointed by the Chief Justice of the Supreme Court of Nevada;

      (c) One member who is a district attorney, appointed by the governing body of the Nevada District Attorneys Association;

 


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κ2009 Statutes of Nevada, Page 2570 (Chapter 458, SB 113)κ

 

      (d) One member who is an attorney in private practice, experienced in defending criminal actions, appointed by the governing body of the State Bar of Nevada;

      (e) One member who is a public defender, appointed by the governing body of the State Bar of Nevada;

      (f) One member who is a representative of a law enforcement agency, appointed by the Governor;

      (g) One member who is a representative of the Division of Parole and Probation of the Department of Public Safety, appointed by the Governor;

      (h) One member who has been a victim of a crime or is a representative of an organization supporting the rights of victims of crime, appointed by the Governor;

      (i) One member who is a representative of an organization that advocates on behalf of inmates, appointed by the Governor;

      (j) One member who is a representative of the Nevada Sheriffs’ and Chiefs’ Association, appointed by the Nevada Sheriffs’ and Chiefs’ Association;

      (k) One member who is a member of the State Board of Parole Commissioners, appointed by the State Board of Parole Commissioners;

      (l) The Director of the Department of Corrections;

      (m) Two members who are Senators, one of whom is appointed by the Majority Leader of the Senate and one of whom is appointed by the Minority Leader of the Senate; and

      (n) Two members who are Assemblymen, one of whom is appointed by the Speaker of the Assembly and one of whom is appointed by the Minority Leader of the Assembly.

Κ If any association listed in this subsection ceases to exist, the appointment required by this subsection must be made by the association’s successor in interest or, if there is no successor in interest, by the Governor.

      2.  The Attorney General is an ex officio voting member of the Commission.

      3.  Each appointed member serves a term of 2 years. Members may be reappointed for additional terms of 2 years in the same manner as the original appointments. Any vacancy occurring in the membership of the Commission must be filled in the same manner as the original appointment not later than 30 days after the vacancy occurs.

      4.  The Legislators who are members of the Commission are entitled to receive the salary provided for a majority of the members of the Legislature during the first 60 days of the preceding session for each day’s attendance at a meeting of the Commission.

      5.  At the first regular meeting of each odd-numbered year, the members of the Commission shall elect a Chairman by majority vote who shall serve until the next Chairman is elected.

      6.  The Commission shall meet at least once every 3 months and may meet at such further times as deemed necessary by the Chairman.

      7.  A majority of the members of the Commission constitutes a quorum for the transaction of business, and a majority of those members present at any meeting is sufficient for any official action taken by the Commission.

      8.  While engaged in the business of the Commission, to the extent of legislative appropriation, each member of the Commission is entitled to receive the per diem allowance and travel expenses provided for state officers and employees generally.

 


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κ2009 Statutes of Nevada, Page 2571 (Chapter 458, SB 113)κ

 

      9.  To the extent of legislative appropriation, the [Attorney General] Director of the Legislative Counsel Bureau shall provide the Commission with such staff as is necessary to carry out the duties of the Commission.

      Sec. 6.  This act becomes effective on July 1, 2009.

________

 

CHAPTER 459, SB 119

Senate Bill No. 119–Senator Carlton (by request)

 

CHAPTER 459

 

AN ACT relating to professions; revising provisions governing the regulation of massage therapists by the Board of Massage Therapists; prohibiting certain misleading and deceptive practices relating to massage therapy; revising provisions governing the discipline of massage therapists; authorizing the Board to issue administrative citations and to impose administrative fines for certain violations; revising provisions governing the temporary suspension of licenses of massage therapists; requiring governmental agencies and courts of competent jurisdiction to provide certain records to the Board or its Executive Director upon request; authorizing governmental agencies and courts of competent jurisdiction to redact certain confidential information from records provided to the Board or its Executive Director; providing remedies and penalties; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Under existing law, massage therapists must be licensed by the Board of Massage Therapists. (Chapter 640C of NRS) Sections 2, 3 and 11 of this bill require a massage therapist to display his original license, not a copy or replica, at each location where he practices massage therapy. (NRS 640C.450) Section 3 prohibits a person from: (1) forging or counterfeiting a license; (2) altering, copying or replicating a license for the purpose of aiding or abetting an unlawful act; or (3) using or displaying a license that has been forged or counterfeited or has been altered, copied or replicated for the purpose of aiding or abetting an unlawful act.

      Sections 4 and 16 of this bill prohibit an unlicensed person from advertising as a massage therapist and prohibit a licensed person from using any false or misleading statements in advertising. (NRS 640C.910) Sections 4 and 16 also prohibit an unlicensed person from having his name listed in a telephone directory under a heading such as “massage” which indicates or implies that he is licensed or qualified to practice massage therapy. Sections 4 and 16 also authorize the Board to issue an order to cease and desist from engaging in unlawful advertising. Sections 4, 18 and 19 of this bill contain provisions whereby the Board can have telephone numbers for any type of telephone, messaging or paging service disconnected because they are included in unlawful advertising. (NRS 703.175, 707.355)

      Existing law authorizes the Board to take disciplinary action by imposing administrative fines. (NRS 640C.710) Section 14 of this bill provides that the Board may impose an administrative fine of not more than $5,000 for each violation, unless a greater fine is required pursuant to section 5 of this bill. Section 5 requires the Board to impose, based on the number of violations, increasing administrative fines of not more than $10,000 against a licensee who has engaged in or solicited sexual activity during a massage therapy session or has been convicted of prostitution or any other sexual offense that occurred during a massage therapy session.

 


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κ2009 Statutes of Nevada, Page 2572 (Chapter 459, SB 119)κ

 

      Section 6.3 of this bill authorizes the Board to issue administrative citations for any statutory or regulatory violations relating to massage therapy and provides that an unlicensed person who fails to comply with a citation is guilty of a misdemeanor. A citation may include an order to: (1) pay an administrative fine; (2) correct a condition resulting from a violation; and (3) reimburse the Board for expenses incurred to investigate the violation, not to exceed $150. Section 6.5 of this bill allows a person to request a hearing before the Board to contest an administrative citation.

      Under existing law, an applicant for a license to practice massage therapy is required to pass a written examination. (NRS 640C.400) Section 10.5 of this bill authorizes an applicant, at his discretion, to pass an oral examination in lieu of the written examination.

      Existing law provides for the temporary suspension of a massage therapy license without a prior hearing for a period of 15 or 30 days under certain exigent circumstances. (NRS 640C.720) Generally, procedural due process entitles a licensee to a hearing before his license is suspended. (Barry v. Barchi, 443 U.S. 55, 99 S. Ct. 2642 (1979); U.S. Const. Amend. XIV, § 1; Nev. Const. Art. 1, § 8) However, when exigent circumstances justify immediate action, a statute may provide for the temporary suspension of a license without a prior hearing if the statute requires a post-suspension administrative review where a hearing is held and a final decision is rendered as promptly as is practicable. (Federal Deposit Insurance Corporation v. Mallen, 486 U.S. 230, 108 S. Ct. 1780 (1988); Sierra Life Insurance Company v. Rottman, 95 Nev. 654 (1979)) Section 15 of this bill: (1) provides for the temporary suspension of a massage therapy license without a prior hearing for a period not to exceed 15 business days under certain exigent circumstances; (2) authorizes the licensee to request a post-suspension administrative review; and (3) requires the Board to hold a hearing and render a final decision as promptly as is practicable but not later than 15 business days after the date on which the Board receives the licensee’s written request for review. (NRS 640C.720)

      Section 15 of this bill also authorizes the Board and its Executive Director to request from the appropriate governmental agency or court of competent jurisdiction records relating to any conviction of a massage therapist for a crime involving violence, prostitution or any other sexual offense and authorizes those governmental agencies and courts of competent jurisdiction to redact from those records certain information which the agencies or courts deem confidential. (NRS 640C.720) Sections 15 and 17 of this bill require the governmental agency or court of competent jurisdiction to provide the requested records as soon as reasonably practicable. (NRS 179A.100) Section 15 also provides that the Board and its Executive Director: (1) must maintain the confidentiality of the records; and (2) may use the records for the sole and limited purpose of determining whether to take disciplinary action against the massage therapist.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 640C of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 8, inclusive, of this act.

      Sec. 2.  1.  “Original license” means the actual license which is issued to the licensee by the Board and which is current and valid.

      2.  The term does not include any photocopy print, photostat or other replica of such a license.

      Sec. 3.  1.  A person shall not:

      (a) Counterfeit or forge or attempt to counterfeit or forge a license to practice massage therapy; or

      (b) For the purpose of aiding or abetting an unlawful act:

            (1) Alter or attempt to alter a license to practice massage therapy; or

 


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            (2) Make or attempt to make any photocopy print, photostat or other replica of a license to practice massage therapy.

      2.  A person shall not use or display a license to practice massage therapy that:

      (a) Is not the original license issued to the person;

      (b) Has been counterfeited or forged;

      (c) Has been altered, copied or replicated for the purpose of aiding or abetting an unlawful act; or

      (d) Has been issued to another person.

      3.  A person who violates any provision of this section is guilty of a misdemeanor.

      Sec. 4.  1.  A person shall not advertise as a massage therapist in this State unless the person is licensed to practice massage therapy pursuant to this chapter.

      2.  A person licensed to practice massage therapy pursuant to this chapter shall not disseminate, as part of any advertising by the massage therapist, any false or misleading statement or representation of material fact that is intended, directly or indirectly, to induce another person to use the services of the massage therapist.

      3.  All advertising by a licensed massage therapist must include his name and the name of his company, if applicable. All advertising in a telephone directory or a newspaper must also include the number of his license.

      4.  A person who violates any provision of subsection 1 or 2 is guilty of a misdemeanor.

      5.  If, after notice and a hearing as required by law, the Board determines that a person has willfully engaged in advertising in a manner that violates the provisions of this section or NRS 640C.910, the Board may, in addition to any penalty, punishment or disciplinary action authorized by the provisions of this chapter, order the person to cease and desist the unlawful advertising. The provisions of this subsection do not apply to any person whose license has been expired for less than 90 days or is temporarily suspended.

      6.  The Board may order any person convicted of a crime involving violence, prostitution or any other sexual offense to cause any telephone number included in the advertising to be disconnected from service. If the Board orders the person to cause any telephone number to be disconnected from service and the person fails to comply within 5 days after the date on which he is served with the order, the Board may:

      (a) If the provider is regulated by the Public Utilities Commission of Nevada, request the Commission to order the provider to disconnect the telephone number from service pursuant to NRS 703.175 and 707.355; or

      (b) If the provider is not regulated by the Public Utilities Commission of Nevada, request the provider to disconnect the telephone number from service and inform the provider that the request is made pursuant to this section. Upon receiving such a request, the provider shall take such action as is necessary to disconnect the telephone number from service.

      7.  A provider shall not:

      (a) Forward or offer to forward the telephone calls of a telephone number disconnected from service pursuant to this section; or

 


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      (b) Provide or offer to provide a message that includes a new telephone number for the person whose telephone number was disconnected from service pursuant to this section.

      8.  If a provider complies in good faith with a request to disconnect a telephone number from service pursuant to this section, such good-faith compliance shall constitute a complete defense to any civil or criminal action brought against the provider arising from the disconnection or termination of service.

      9.  As used in this section:

      (a) “Advertising” means the intentional placement or issuance of any sign, card or device, or the permitting or allowing of any sign or marking on a motor vehicle, in any building, structure, newspaper, magazine or airway transmission, on the Internet or in any directory under the listing of “massage therapist” or “massage.”

      (b) “Provider” means a provider of any type of telephone, messaging or paging service.

      (c) “Provider of messaging or paging service” means an entity that provides any type of messaging or paging service to any type of communication device.

      (d) “Provider of telephone service” has the meaning ascribed to it in NRS 707.355.

      (e) “Telephone number” means any sequence of numbers or characters, or both, used by a provider to provide any type of telephone, messaging or paging service.

      Sec. 5.  1.  In addition to any other actions authorized by NRS 640C.710, if, after notice and a hearing as required by law, the Board determines that a licensee has engaged in or solicited sexual activity during the course of practicing massage on a person, as set forth in subsection 4 of NRS 640C.700, or has been convicted of prostitution or any other sexual offense that occurred during the course of practicing massage on a person, the Board shall:

      (a) For a first violation, impose an administrative fine of not less than $100 and not more than $1,000;

      (b) For a second violation, impose an administrative fine of not less than $250 and not more than $5,000; and

      (c) For a third violation and for each additional violation, impose an administrative fine of not less than $500 and not more than $10,000.

      2.  The Board shall, by regulation, establish standards for use by the Board in determining the amount of an administrative fine imposed pursuant to this section. The standards must include, without limitation, provisions requiring the Board to consider:

      (a) The gravity of the violation;

      (b) The good faith of the licensee; and

      (c) Any history of previous violations of the provisions of this chapter committed by the licensee.

      Sec. 6.  The expiration of a license by operation of law or by order or decision of the Board or a court, or the voluntary surrender of a license by a licensee, does not deprive the Board of jurisdiction to proceed with any investigation of, or action or disciplinary proceeding against, the licensee or to render a decision suspending or revoking the license.

      Sec. 6.3.  1.  If the Board or its designee, based upon a preponderance of the evidence, has reason to believe that a person has committed an act which constitutes a violation of this chapter or the regulations of the Board, the Board or its designee, as appropriate, may issue or authorize the issuance of a written administrative citation to the person.

 


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committed an act which constitutes a violation of this chapter or the regulations of the Board, the Board or its designee, as appropriate, may issue or authorize the issuance of a written administrative citation to the person. A citation issued pursuant to this section may include, without limitation:

      (a) An order to take action to correct a condition resulting from an act that constitutes a violation of this chapter or the regulations of the Board, at the person’s cost;

      (b) An order to pay an administrative fine for each violation; and

      (c) An order to reimburse the Board for the amount of the expenses incurred to investigate each violation, not to exceed $150.

      2.  If the citation includes an order to take action to correct a condition resulting from an act that constitutes a violation of this chapter or the regulations of the Board, the citation must:

      (a) State the time permitted for compliance, which must not be less than 15 business days after the date on which the citation is received by the person; and

      (b) Describe, in specific detail, the action required to be taken.

      3.  If the citation is issued to a licensee and includes an order to pay an administrative fine for one or more violations, the amount of the administrative fine must not exceed the maximum amount authorized by NRS 640C.710 or section 5 of this act, as appropriate for each violation.

      4.  If the citation is issued to an unlicensed person and includes an order to pay an administrative fine for one or more violations, the amount of the administrative fine:

      (a) For a first violation, must not be less than $100 and must not be more than $1,000;

      (b) For a second violation, must not be less than $250 and must not be more than $5,000; and

      (c) For a third violation and for each additional violation, must not be less than $500 and must not be more than $10,000.

      5.  The sanctions authorized by this section are separate from, and in addition to, any other remedy, civil or criminal, authorized by this chapter.

      6.  The failure of an unlicensed person to comply with a citation or order after it is final is a misdemeanor. If an unlicensed person does not pay an administrative fine imposed pursuant to this section or make satisfactory payment arrangements, as approved by the Board, within 60 days after the order of the Board becomes final, the order may be executed upon in the same manner as a judgment issued by a court.

      Sec. 6.5.  1.  If a person is issued a written administrative citation pursuant to section 6.3 of this act, the person may request a hearing before the Board to contest the citation by filing a written request with the Board:

      (a) Not later than 15 business days after the date on which the citation is received by the person; or

      (b) If the Board, for good cause shown, extends the time allowed to file a written request for a hearing to contest the citation, on or before the later date specified by the Board.

      2.  If the person files a written request for a hearing to contest the citation within the time allowed pursuant to this section:

      (a) The Board shall provide notice of and conduct the hearing in the same manner as other disciplinary proceedings; and

      (b) At the hearing, the person may contest, without limitation:

 


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            (1) The facts forming the basis for the determination that the person has committed an act which constitutes a violation of this chapter or the regulations of the Board;

            (2) The time allowed to take any corrective action ordered;

            (3) The amount of any administrative fine ordered;

            (4) The amount of any order to reimburse the Board for the expenses incurred to investigate the violation; and

            (5) Whether any corrective action described in the citation is reasonable.

      3.  If the person does not file a written request for a hearing to contest the citation within the time allowed pursuant to this section, the citation shall be deemed a final order of the Board.

      4.  For the purposes of this section, a citation shall be deemed to have been received by a person:

      (a) On the date on which the citation is personally delivered to the person; or

      (b) If the citation is mailed, 3 days after the date on which the citation is mailed by certified mail to the last known business or residential address of the person.

      Secs. 7 and 8.  (Deleted by amendment.)

      Sec. 9.  NRS 640C.020 is hereby amended to read as follows:

      640C.020  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 640C.030 to 640C.060, inclusive, and section 2 of this act have the meanings ascribed to them in those sections.

      Sec. 10.  (Deleted by amendment.)

      Sec. 10.3.  NRS 640C.320 is hereby amended to read as follows:

      640C.320  The Board shall adopt regulations to carry out the provisions of this chapter. The regulations must include, without limitation, provisions that:

      1.  Establish the requirements for continuing education for the renewal of a license;

      2.  Establish the requirements for the approval of a course of continuing education, including, without limitation, a course on a specialty technique of massage therapy;

      3.  Establish the requirements for the approval of an instructor of a course of continuing education;

      4.  Establish requirements relating to sanitation, hygiene and safety relating to the practice of massage therapy;

      5.  Except as otherwise provided in NRS 622.090, prescribe the requirements for any practical, oral or written examination for a license that the Board may require, including, without limitation, the passing grade for such an examination; [and]

      6.  Establish the period within which the Board or its designee must report the results of the investigation of an applicant [.] ; and

      7.  Prescribe the form of a written administrative citation issued pursuant to section 6.3 of this act.

      Sec. 10.5.  NRS 640C.400 is hereby amended to read as follows:

      640C.400  1.  The Board may issue a license to practice massage therapy.

      2.  An applicant for a license must:

      (a) Be at least 18 years of age;

      (b) Submit to the Board:

 


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            (1) A completed application on a form prescribed by the Board;

            (2) The fees prescribed by the Board pursuant to NRS 640C.520;

            (3) Proof that he has successfully completed a program of massage therapy recognized by the Board;

            (4) A certified statement issued by the licensing authority in each state, territory or possession of the United States or the District of Columbia in which the applicant is or has been licensed to practice massage therapy verifying that:

                  (I) The applicant has not been involved in any disciplinary action relating to his license to practice massage therapy; and

                  (II) Disciplinary proceedings relating to his license to practice massage therapy are not pending;

            (5) Except as otherwise provided in NRS 640C.440, a complete set of fingerprints and written permission authorizing the Board to forward the fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report;

            (6) The names and addresses of five natural persons not related to the applicant and not business associates of the applicant who are willing to serve as character references;

            (7) A statement authorizing the Board or its designee to conduct an investigation to determine the accuracy of any statements set forth in the application; and

            (8) If required by the Board, a financial questionnaire; and

      (c) In addition to any examination required pursuant to NRS 640C.320 [and except] :

            (1) Except as otherwise provided in subsection 3, pass a written examination administered by any board that is accredited by the National Commission for Certifying Agencies, or its successor organization, to examine massage therapists [.] ; or

            (2) At the applicant’s discretion and in lieu of a written examination, pass an oral examination prescribed by the Board.

      3.  If the Board determines that the examinations being administered pursuant to subparagraph (1) of paragraph (c) of subsection 2 are inadequately testing the knowledge and competency of applicants, the Board shall prepare or cause to be prepared its own written examination to test the knowledge and competency of applicants. Such an examination must be offered not less than four times each year. The location of the examination must alternate between Clark County and Washoe County. Upon request, the Board must provide a list of approved interpreters at the location of the examination to interpret the examination for an applicant who, as determined by the Board, requires an interpreter for the examination.

      4.  The Board shall recognize a program of massage therapy that is:

      (a) Approved by the Commission on Postsecondary Education; or

      (b) Offered by a public college in this State or any other state.

Κ The Board may recognize other programs of massage therapy.

      5.  The Board or its designee shall:

      (a) Conduct an investigation to determine:

            (1) The reputation and character of the applicant;

            (2) The existence and contents of any record of arrests or convictions of the applicant;

            (3) The existence and nature of any pending litigation involving the applicant that would affect his suitability for licensure; and

 


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            (4) The accuracy and completeness of any information submitted to the Board by the applicant;

      (b) If the Board determines that it is unable to conduct a complete investigation, require the applicant to submit a financial questionnaire and investigate the financial background and each source of funding of the applicant;

      (c) Report the results of the investigation of the applicant within the period the Board establishes by regulation pursuant to NRS 640C.320; and

      (d) Except as otherwise provided in NRS 239.0115, maintain the results of the investigation in a confidential manner for use by the Board and its members and employees in carrying out their duties pursuant to this chapter. The provisions of this paragraph do not prohibit the Board or its members or employees from communicating or cooperating with or providing any documents or other information to any other licensing board or any other federal, state or local agency that is investigating a person, including, without limitation, a law enforcement agency.

      Sec. 11.  NRS 640C.450 is hereby amended to read as follows:

      640C.450  1.  Each licensee shall display his original license in a conspicuous manner at each location where he practices massage therapy. If a licensee practices massage therapy in more than one place, he must carry his original license with him and display it wherever he is actually working.

      2.  A licensee shall obtain a replacement of his original license from the Board if his:

      (a) Original license is destroyed, misplaced or mutilated; or

      (b) Name or address as printed on the original license has changed.

      3.  To obtain a replacement license, the licensee must:

      (a) File an affidavit with the Board, on the form prescribed by the Board, which states that his original license was destroyed, misplaced or mutilated or that his name or address as printed on the original license has changed; and

      (b) Pay the fee prescribed by the Board pursuant to NRS 640C.520.

      Sec. 12.  NRS 640C.520 is hereby amended to read as follows:

      640C.520  1.  The Board shall establish a schedule of fees and charges. The fees for the following items must not exceed the following amounts:

 

An examination established by the Board pursuant to this chapter $600

An application for a license............................................................ 300

An application for a license without an examination.................. 300

A background check of an applicant............................................. 600

The issuance of a license................................................................. 400

The renewal of a license.................................................................. 200

The restoration of an expired license............................................ 500

The reinstatement of a suspended or revoked license................ 500

The issuance of a [duplicate] replacement license........................ 75

The restoration of an inactive license............................................ 300

 

      2.  The total fees collected by the Board pursuant to this section must not exceed the amount of money necessary for the operation of the Board and for the maintenance of an adequate reserve.

 


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      Sec. 13.  NRS 640C.700 is hereby amended to read as follows:

      640C.700  The Board may refuse to issue a license to an applicant, or may initiate disciplinary action against a holder of a license, if the applicant or holder of the license:

      1.  Has submitted false, fraudulent or misleading information to the Board or any agency of this State, any other state, a territory or possession of the United States, the District of Columbia or the Federal Government;

      2.  Has violated any provision of this chapter or any regulation adopted pursuant thereto;

      3.  Has been convicted of a crime involving violence, prostitution or any other sexual offense, a crime involving any type of larceny, a crime relating to a controlled substance, a crime involving any federal or state law or regulation relating to massage therapy or a substantially similar business, or a crime involving moral turpitude within the immediately preceding 10 years ; [.]

      4.  Has engaged in or solicited sexual activity during the course of practicing massage on a person, with or without the consent of the person, including, without limitation, if the applicant or holder of the license:

      (a) Made sexual advances toward the person;

      (b) Requested sexual favors from the person; or

      (c) Massaged, touched or applied any instrument to the breasts of the person, unless the person has signed a written consent form provided by the Board;

      5.  Has habitually abused alcohol or is addicted to a controlled substance;

      6.  Is, in the judgment of the Board, guilty of gross negligence in his practice of massage therapy;

      7.  Is determined by the Board to be professionally incompetent to engage in the practice of massage therapy;

      8.  Has failed to provide information requested by the Board within 60 days after he received the request;

      9.  Has, in the judgment of the Board, engaged in unethical or unprofessional conduct as it relates to the practice of massage therapy;

      10.  Has been disciplined in another state, a territory or possession of the United States or the District of Columbia for conduct that would be a violation of the provisions of this chapter or any regulations adopted pursuant thereto if the conduct were committed in this State;

      11.  Has solicited or received compensation for services relating to the practice of massage therapy that he did not provide;

      12.  If the holder of the license is on probation, has violated the terms of his probation; [or]

      13.  Has engaged in false, deceptive or misleading advertising, including, without limitation, falsely, deceptively or misleadingly advertising that he has received training in a specialty technique of massage for which he has not received training, practicing massage therapy under an assumed name and impersonating a licensed massage therapist [.] ;

      14.  Has failed to comply with a written administrative citation issued pursuant to section 6.3 of this act within the time permitted for compliance set forth in the citation or, if a hearing is held pursuant to section 6.5 of this act, within 15 business days after the hearing; or

 


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      15.  Except as otherwise provided in subsection 14, has failed to pay or make arrangements to pay, as approved by the Board, an administrative fine imposed pursuant to this chapter within 60 days after:

      (a) Receiving notice of the imposition of the fine; or

      (b) The final administrative or judicial decision affirming the imposition of the fine,

Κ whichever occurs later.

      Sec. 14.  NRS 640C.710 is hereby amended to read as follows:

      640C.710  1.  If, after notice and a hearing as required by law, the Board finds one or more grounds for taking disciplinary action, the Board may:

      (a) Place the applicant or holder of the license on probation for a specified period or until further order of the Board;

      (b) Administer to the applicant or holder of the license a public reprimand;

      (c) Refuse to issue, renew, reinstate or restore the license;

      (d) Suspend or revoke the license;

      (e) [Impose] Except as otherwise provided in section 5 of this act, impose an administrative fine of not more than [$1,000 per day for each day for which the Board determines that a violation occurred;] $5,000 for each violation;

      (f) Require the applicant or holder of the license to pay the costs incurred by the Board to conduct the investigation and hearing; or

      (g) Impose any combination of actions set forth in paragraphs (a) to (f), inclusive.

      2.  The order of the Board may contain such other terms, provisions or conditions as the Board deems appropriate.

      3.  The order of the Board and the findings of fact and conclusions of law supporting that order are public records.

      4.  The Board shall not issue a private reprimand.

      Sec. 15.  NRS 640C.720 is hereby amended to read as follows:

      640C.720  Notwithstanding any other statute to the contrary:

      1.  If the Board finds , based upon evidence in its possession, that immediate action is necessary to protect the health, safety or welfare of the public, the Board may, upon providing notice to the massage therapist, temporarily suspend his license without a prior hearing for a period not to exceed [30 days. For good cause,] 15 business days. The massage therapist may file a written request for a hearing to challenge the necessity of the temporary suspension. The written request must be filed not later than 10 business days after the date on which the massage therapist receives notice of the temporary suspension. If the massage therapist:

      (a) Files a timely written request for a hearing, the Board shall extend the temporary suspension until a hearing is held. The Board shall hold a hearing and render a final decision regarding the necessity of the temporary suspension as promptly as is practicable but not later than 15 business days after the date on which the Board receives the written request. After holding such a hearing, the Board may extend the period of the temporary suspension if the Board [deems] finds, for good cause shown, that such action [to be] is necessary to protect the health, safety or welfare of the public pending proceedings for disciplinary action. [In any such case, a]

 


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      (b) Does not file a timely written request for a hearing and the Board wants to consider extending the period of the temporary suspension, the Board shall schedule a hearing and notify the massage therapist immediately by certified mail of the date of the hearing. The hearing must be held and a final decision rendered regarding whether to extend the period of the temporary suspension as promptly as is practicable but not later than 30 days after the date on which the Board [notifies the massage therapist] provides notice of the initial temporary suspension. After holding such a hearing, the Board may extend the period of the temporary suspension if the Board finds, for good cause shown, that such action is necessary to protect the health, safety or welfare of the public pending proceedings for disciplinary action.

      2.  If a massage therapist is charged with or cited for [a crime involving violence,] prostitution or any other sexual offense, the appropriate law enforcement agency shall report the charge or citation to the Executive Director [.] of the Board. Upon receiving such a report, the Executive Director shall immediately issue by certified mail to the massage therapist a cease and desist order temporarily suspending the license of the massage therapist [.] without a prior hearing. The temporary suspension of the license is effective immediately [upon issuance] after the massage therapist receives notice of the cease and desist order and must not exceed [15 days. For good cause,] 15 business days. The massage therapist may file a written request for a hearing to challenge the necessity of the temporary suspension. The written request must be filed not later than 10 business days after the date on which the Executive Director mails the cease and desist order. If the massage therapist:

      (a) Files a timely written request for a hearing, the Board shall extend the temporary suspension until a hearing is held. The Board shall hold a hearing and render a final decision regarding the necessity of the temporary suspension as promptly as is practicable but not later than 15 business days after the date on which the Board receives the written request. After holding such a hearing, the Board may extend the period of the temporary suspension if the Board [deems] finds, for good cause shown, that such action [to be] is necessary to protect the health, safety or welfare of the public pending proceedings for disciplinary action. [In any such case, a]

      (b) Does not file a timely written request for a hearing and the Board wants to consider extending the period of the temporary suspension, the Board shall schedule a hearing and notify the massage therapist immediately by certified mail of the date of the hearing. The hearing must be held and a final decision rendered regarding whether to extend the period of the temporary suspension as promptly as is practicable but not later than 15 business days after the date on which the Executive Director [issues] mails the cease and desist order. After holding such a hearing, the Board may extend the period of the temporary suspension if the Board finds, for good cause shown, that such action is necessary to protect the health, safety or welfare of the public pending proceedings for disciplinary action.

      3.  If the Board or the Executive Director issues an order temporarily suspending the license of a massage therapist pending proceedings for disciplinary action, a court shall not stay that order.

      4.  When conducting an investigation of a massage therapist pursuant to this chapter, the Board or the Executive Director may request from the appropriate governmental agency or court of competent jurisdiction records relating to any conviction of the massage therapist for a crime involving violence, prostitution or any other sexual offense.

 


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records relating to any conviction of the massage therapist for a crime involving violence, prostitution or any other sexual offense. Such records include, without limitation, a record of criminal history as defined in NRS 179A.070.

      5.  Upon receiving a request from the Board or the Executive Director pursuant to subsection 4, the governmental agency or court of competent jurisdiction shall provide the requested records to the Board or the Executive Director as soon as reasonably practicable. The governmental agency or court of competent jurisdiction may redact from the records produced pursuant to this subsection any information relating to the agency or court that is deemed confidential by the agency or court. Upon receiving the records from the governmental agency or court, the Board and the Executive Director:

      (a) Shall maintain the confidentiality of the records if such confidentiality is required by federal or state law; and

      (b) May use the records for the sole and limited purpose of determining whether to take disciplinary action against the massage therapist pursuant to this chapter.

      6.  For purposes of this section, a person is deemed to have notice of a temporary suspension of his license:

      (a) On the date on which the notice is personally delivered to the person; or

      (b) If the notice is mailed, 3 days after the date on which the notice is mailed by certified mail to the last known business or residential address of the person.

      Sec. 16.  NRS 640C.910 is hereby amended to read as follows:

      640C.910  1.  If a person is not licensed to practice massage therapy pursuant to this chapter, the person shall not:

      (a) Engage in the practice of massage therapy; [or]

      (b) Use in connection with his name the words or letters “L.M.T.,” “licensed massage therapist,” “licensed massage technician,” “M.T.,” “massage technician” or “massage therapist,” or any other letters, words or insignia indicating or implying that he is licensed to practice massage therapy, or in any other way, orally, or in writing or print, or by sign, directly or by implication, use the word “massage” or represent himself as licensed or qualified to engage in the practice of massage therapy [.] ; or

      (c) List or cause to have listed in any directory, including, without limitation, a telephone directory, his name or the name of his company under the heading “massage,” “massage therapy,” “massage therapist,” “massage technician” or any other term that indicates or implies that he is licensed or qualified to practice massage therapy.

      2.  If a person’s license to practice massage therapy pursuant to this chapter has expired or has been suspended or revoked by the Board, the person shall not:

      (a) Engage in the practice of massage therapy; [or]

      (b) Use in connection with his name the words or letters “L.M.T.,” “licensed massage therapist,” “licensed massage technician,” “M.T.,” “massage technician” or “massage therapist,” or any other letters, words or insignia indicating or implying that he is licensed to practice massage therapy, or in any other way, orally, or in writing or print, or by sign, directly or by implication, use the word “massage” or represent himself as licensed or qualified to engage in the practice of massage therapy [.] ; or

 


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κ2009 Statutes of Nevada, Page 2583 (Chapter 459, SB 119)κ

 

      (c) List or cause to have listed in any directory, including, without limitation, a telephone directory, his name or the name of his company under the heading “massage,” “massage therapy,” “massage therapist,” “massage technician” or any other term that indicates or implies that he is licensed or qualified to practice massage therapy.

      3.  A person who violates any provision of this section is guilty of a misdemeanor.

      Sec. 17.  NRS 179A.100 is hereby amended to read as follows:

      179A.100  1.  The following records of criminal history may be disseminated by an agency of criminal justice without any restriction pursuant to this chapter:

      (a) Any which reflect records of conviction only; and

      (b) Any which pertain to an incident for which a person is currently within the system of criminal justice, including parole or probation.

      2.  Without any restriction pursuant to this chapter, a record of criminal history or the absence of such a record may be:

      (a) Disclosed among agencies which maintain a system for the mutual exchange of criminal records.

      (b) Furnished by one agency to another to administer the system of criminal justice, including the furnishing of information by a police department to a district attorney.

      (c) Reported to the Central Repository.

      3.  An agency of criminal justice shall disseminate to a prospective employer, upon request, records of criminal history concerning a prospective employee or volunteer which:

      (a) Reflect convictions only; or

      (b) Pertain to an incident for which the prospective employee or volunteer is currently within the system of criminal justice, including parole or probation.

      4.  In addition to any other information to which an employer is entitled or authorized to receive, the Central Repository shall disseminate to a prospective or current employer, or a person or entity designated to receive the information on behalf of such an employer, the information contained in a record of registration concerning an employee, prospective employee, volunteer or prospective volunteer who is a sex offender or an offender convicted of a crime against a child, regardless of whether the employee, prospective employee, volunteer or prospective volunteer gives his written consent to the release of that information. The Central Repository shall disseminate such information in a manner that does not reveal the name of an individual victim of an offense. A request for information pursuant to this subsection must conform to the requirements of the Central Repository and must include:

      (a) The name and address of the employer, and the name and signature of the person or entity requesting the notice on behalf of the employer;

      (b) The name and address of the employer’s facility in which the employee, prospective employee, volunteer or prospective volunteer is employed or volunteers or is seeking to become employed or volunteer; and

      (c) The name and other identifying information of the employee, prospective employee, volunteer or prospective volunteer.

      5.  In addition to any other information to which an employer is entitled or authorized to receive, the Central Repository shall disseminate to a prospective or current employer, or a person or entity designated to receive the information on behalf of such an employer, the information described in subsection 4 of NRS 179A.190 concerning an employee, prospective employee, volunteer or prospective volunteer who gives his written consent to the release of that information if the employer submits a request in the manner set forth in NRS 179A.200 for obtaining a notice of information.

 


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κ2009 Statutes of Nevada, Page 2584 (Chapter 459, SB 119)κ

 

subsection 4 of NRS 179A.190 concerning an employee, prospective employee, volunteer or prospective volunteer who gives his written consent to the release of that information if the employer submits a request in the manner set forth in NRS 179A.200 for obtaining a notice of information. The Central Repository shall search for and disseminate such information in the manner set forth in NRS 179A.210 for the dissemination of a notice of information.

      6.  Except as otherwise provided in subsection 5, the provisions of NRS 179A.180 to 179A.240, inclusive, do not apply to an employer who requests information and to whom information is disseminated pursuant to subsections 4 and 5.

      7.  Records of criminal history must be disseminated by an agency of criminal justice, upon request, to the following persons or governmental entities:

      (a) The person who is the subject of the record of criminal history for the purposes of NRS 179A.150.

      (b) The person who is the subject of the record of criminal history or his attorney of record when the subject is a party in a judicial, administrative, licensing, disciplinary or other proceeding to which the information is relevant.

      (c) The State Gaming Control Board.

      (d) The State Board of Nursing.

      (e) The Private Investigator’s Licensing Board to investigate an applicant for a license.

      (f) A public administrator to carry out his duties as prescribed in chapter 253 of NRS.

      (g) A public guardian to investigate a ward or proposed ward or persons who may have knowledge of assets belonging to a ward or proposed ward.

      (h) Any agency of criminal justice of the United States or of another state or the District of Columbia.

      (i) Any public utility subject to the jurisdiction of the Public Utilities Commission of Nevada when the information is necessary to conduct a security investigation of an employee or prospective employee, or to protect the public health, safety or welfare.

      (j) Persons and agencies authorized by statute, ordinance, executive order, court rule, court decision or court order as construed by appropriate state or local officers or agencies.

      (k) Any person or governmental entity which has entered into a contract to provide services to an agency of criminal justice relating to the administration of criminal justice, if authorized by the contract, and if the contract also specifies that the information will be used only for stated purposes and that it will be otherwise confidential in accordance with state and federal law and regulation.

      (l) Any reporter for the electronic or printed media in his professional capacity for communication to the public.

      (m) Prospective employers if the person who is the subject of the information has given written consent to the release of that information by the agency which maintains it.

      (n) For the express purpose of research, evaluative or statistical programs pursuant to an agreement with an agency of criminal justice.

      (o) An agency which provides child welfare services, as defined in NRS 432B.030.

 


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κ2009 Statutes of Nevada, Page 2585 (Chapter 459, SB 119)κ

 

      (p) The Division of Welfare and Supportive Services of the Department of Health and Human Services or its designated representative.

      (q) The Aging Services Division of the Department of Health and Human Services or its designated representative.

      (r) An agency of this or any other state or the Federal Government that is conducting activities pursuant to Part D of Subchapter IV of Chapter 7 of Title 42 of the Social Security Act, 42 U.S.C. §§ 651 et seq.

      (s) The State Disaster Identification Team of the Division of Emergency Management of the Department.

      (t) The Commissioner of Insurance.

      (u) The Board of Medical Examiners.

      (v) The State Board of Osteopathic Medicine.

      (w) The Board of Massage Therapists and its Executive Director.

      8.  Agencies of criminal justice in this State which receive information from sources outside this State concerning transactions involving criminal justice which occur outside Nevada shall treat the information as confidentially as is required by the provisions of this chapter.

      Sec. 18.  NRS 703.175 is hereby amended to read as follows:

      703.175  1.  Upon receiving a request to disconnect a telephone number from the State Contractors’ Board [to disconnect a telephone number] pursuant to NRS 624.720, the Board of Massage Therapists pursuant to section 4 of this act or the Nevada Transportation Authority pursuant to NRS 706.758, the Commission shall issue an order to the appropriate provider of telephone service to disconnect the telephone number.

      2.  Compliance in good faith by a provider of telephone service with an order of the Commission to terminate service issued pursuant to this section shall constitute a complete defense to any civil or criminal action brought against the provider of telephone service arising from the termination of service.

      3.  As used in this section, “provider of telephone service” has the meaning ascribed to it in NRS 707.355.

      Sec. 19.  NRS 707.355 is hereby amended to read as follows:

      707.355  1.  Each provider of telephone service in this State shall, when notified that:

      (a) A court has ordered the disconnection of a telephone number pursuant to NRS 706.2855; or

      (b) The Public Utilities Commission of Nevada has ordered the disconnection of a telephone number pursuant to NRS [624.720 and] 703.175, after receiving a request to disconnect the telephone number from the State Contractors’ Board pursuant to NRS 624.720, the Board of Massage Therapists pursuant to section 4 of this act or the Nevada Transportation Authority pursuant to NRS 706.758,

Κ take such action as is necessary to carry out the order of the court or the Public Utilities Commission of Nevada.

      2.  A provider of telephone service shall not:

      (a) Forward or offer to forward the telephone calls of a telephone number disconnected from service pursuant to the provisions of this section; or

      (b) Provide or offer to provide a recorded message that includes the new telephone number for a business whose telephone number was disconnected from service pursuant to the provisions of this section.

 


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κ2009 Statutes of Nevada, Page 2586 (Chapter 459, SB 119)κ

 

      3.  As used in this section, “provider of telephone service” includes, but is not limited to:

      (a) A public utility furnishing telephone service.

      (b) A provider of cellular or other service to a telephone that is installed in a vehicle or is otherwise portable.

________

 

CHAPTER 460, SB 212

Senate Bill No. 212–Senator Rhoads

 

CHAPTER 460

 

AN ACT relating to initiative petitions; providing a procedure for a petition proposing a statute, an amendment to a statute or an amendment to the Constitution to be placed on a ballot; and providing other matters properly relating thereto.

 

[Approved: June 4, 2009]

 

Legislative Counsel’s Digest:

      Existing law requires that an initiative petition proposing a statute, an amendment to a statute or an amendment to the Constitution be signed by a number of registered voters that is equal to at least 10 percent of the voters who voted at the last preceding general election. (Nev. Const. Art. 19, § 2) Existing law also requires an initiative petition be signed by a number of registered voters from each county in the State that is at least equal to 10 percent of the voters who voted in the entire State at the last preceding general election multiplied by the population percentage for that county. (NRS 295.012) The United States District Court for the District of Nevada declared that the current existing law violates the Equal Protection Clause of the United States Constitution because it results in the signatures of voters from counties with lower population carrying more weight than the signatures of voters from counties with higher population. (Marijuana Policy Project v. Miller, 578 F.Supp. 2d 1290 (D. Nev. 2008)) This bill repeals and replaces the current existing law.

      Section 3.2 of this bill requires the Legislature to create petition districts from which signatures for a petition for initiative must be gathered. Section 14 of this bill defines “petition district” to mean congressional district until July 1, 2011, at which time the Legislature must have established petition districts for the period after that date. Section 3.4 of this bill requires the Director of the Legislative Counsel Bureau to retain a copy of maps of the petitions district and make them available to any interested person for a reasonable fee not to exceed the actual cost of producing the copy. Section 12 of this bill requires a petition for initiative to be signed by a number of registered voters in each petition district in the State that equals at least 10 percent of the voters who voted in that petition district in the last preceding general election.

      Section 5 of this bill requires the Secretary of State to determine, as soon as practicable after each general election, the number of signatures required to be gathered from each petition district. Sections 6-9 of this bill provide procedures for the verification of signatures on a petition proposing a statute, an amendment to a statute or an amendment to the Constitution. Sections 7 and 9 require the Secretary of State to adopt regulations concerning these procedures. Section 10 of this bill requires the Secretary of State to provide on his website a current list of the registered voters in this State that indicates the petition district in which each registered voter resides. Section 13 of this bill authorizes the person signing a petition to indicate his petition district on the petition and, if not so indicated, requires the circulator of the petition to indicate the petition district of the person if known. Section 13 further allows a voter to consult the website of the Secretary of State to determine within which petition district he resides and to rely on that information.

 


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κ2009 Statutes of Nevada, Page 2587 (Chapter 460, SB 212)κ

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

      Section 1.  Chapter 293 of NRS is hereby amended by adding thereto the provisions set forth as [sections 2 and 3] section 2 of this act.

      Sec. 2.  “Petition district” means a district established by the Legislature pursuant to section 3.2 of this act.

      Sec. 3.  (Deleted by amendment.)

      Sec. 3.2.  1.  The Legislature shall establish petition districts from which signatures for a petition for initiative that proposes a statute, an amendment to a statute or an amendment to the Constitution of this State must be gathered. The petition districts must be established in a manner that is fair to all residents of the State, represent approximately equal populations and ensure that each signature is afforded the same weight.

      2.  Petition districts must be:

      (a) Based on the population databases compiled by the Bureau of the Census of the United States Department of Commerce as validated and incorporated into the geographic information system by the Legislative Counsel Bureau for use by the Nevada Legislature.

      (b) Designated in the maps filed with the Office of the Secretary of State pursuant to section 3.4 of this act.

      Sec. 3.4.  The Director of the Legislative Counsel Bureau shall:

      1.  Retain in an office of the Legislative Counsel Bureau, copies of maps of the petition districts established pursuant to section 3.2 of this act.

      2.  Make available copies of the maps to any interested person for a reasonable fee, not to exceed the actual costs of producing copies of the maps.

      3.  File a copy of the maps with the Secretary of State.

      Sec. 4.  NRS 293.010 is hereby amended to read as follows:

      293.010  As used in this title, unless the context otherwise requires, the words and terms defined in NRS 293.013 to 293.121, inclusive, and section 2 of this act, have the meanings ascribed to them in those sections.

      Sec. 5.  NRS 293.127563 is hereby amended to read as follows:

      293.127563  1.  As soon as practicable after each general election, the Secretary of State shall determine the number of signatures required to be gathered from each [county] petition district within the State for a petition for initiative that proposes a statute, an amendment to a statute or an amendment to the Constitution of this State.

      2.  To determine the number of signatures required to be gathered from [a county,] a petition district, the Secretary of State shall [multiply] calculate the amount that equals 10 percent of the voters who voted in [the entire State] that petition district at the last preceding general election . [by the population percentage for that county.

      3.  As used in this section:

      (a) “Total population of the State” means the determination of the total population of the State by the national decennial census conducted by the Bureau of the Census of the United States Department of Commerce pursuant to Section 2 of Article I of the Constitution of the United States and reported by the Secretary of Commerce to the Governor pursuant to 13 U.S.C. § 141(c).

      (b) “Population percentage for that county” means the figure obtained by dividing the population of the county, as determined by the national decennial census conducted by the Bureau of the Census of the United States Department of Commerce pursuant to Section 2 of Article I of the Constitution of the United States and reported by the Secretary of Commerce to the Governor pursuant to 13 U.S.C. § 141(c), by the total population of the State.]

 


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κ2009 Statutes of Nevada, Page 2588 (Chapter 460, SB 212)κ

 

decennial census conducted by the Bureau of the Census of the United States Department of Commerce pursuant to Section 2 of Article I of the Constitution of the United States and reported by the Secretary of Commerce to the Governor pursuant to 13 U.S.C. § 141(c), by the total population of the State.]

      Sec. 6.  NRS 293.1276 is hereby amended to read as follows:

      293.1276  1.  Within 4 days, excluding Saturdays, Sundays and holidays, after the submission of a petition containing signatures which are required to be verified pursuant to NRS 293.128, 293.165, 293.172, 293.200, 295.056, 298.109, 306.035 or 306.110, the county clerk shall determine the total number of signatures affixed to the documents and, in the case of a petition proposing a statute, an amendment to a statute or an amendment to the Constitution, shall tally the number of signatures for each petition district contained fully or partially within his county and forward that information to the Secretary of State.

      2.  If the Secretary of State finds that the total number of signatures filed with all the county clerks is less than 100 percent of the required number of registered voters, he shall so notify the person who submitted the petition and the county clerks and no further action may be taken in regard to the petition. If the petition is a petition to recall a county, district or municipal officer, the Secretary of State shall also notify the officer with whom the petition is to be filed.

      3.  After the petition is submitted to the county clerk, it must not be handled by any other person except by an employee of the county clerk’s office until it is filed with the Secretary of State.

      Sec. 7.  NRS 293.1277 is hereby amended to read as follows:

      293.1277  1.  If the Secretary of State finds that the total number of signatures submitted to all the county clerks is 100 percent or more of the number of registered voters needed to declare the petition sufficient, he shall immediately so notify the county clerks. Within 9 days, excluding Saturdays, Sundays and holidays, after notification, each of the county clerks shall determine the number of registered voters who have signed the documents submitted in his county [.] and, in the case of a petition proposing a statute, an amendment to a statute or an amendment to the Constitution, shall tally the number of signatures for each petition district contained or fully contained within his county.

      2.  If more than 500 names have been signed on the documents submitted to him, a county clerk shall examine the signatures by sampling them at random for verification. The random sample of signatures to be verified must be drawn in such a manner that every signature which has been submitted to the county clerk is given an equal opportunity to be included in the sample. The sample must include an examination of at least 500 or 5 percent of the signatures, whichever is greater.

      3.  In determining from the records of registration the number of registered voters who signed the documents, the county clerk may use the signatures contained in the file of applications to register to vote. If the county clerk uses that file, he shall ensure that every application in the file is examined, including any application in his possession which may not yet be entered into his records. The county clerk shall rely only on the appearance of the signature and the address and date included with each signature in making his determination.

 


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κ2009 Statutes of Nevada, Page 2589 (Chapter 460, SB 212)κ

 

      4.  In the case of a petition proposing a statute, an amendment to a statute or an amendment to the Constitution, when the county clerk is determining the number of registered voters who signed the documents from each petition district contained fully or partially within his county, he must use the statewide voter registration list available pursuant to NRS 293.675.

      5.  Except as otherwise provided in subsection [6,] 7, upon completing the examination, the county clerk shall immediately attach to the documents a certificate properly dated, showing the result of his examination , including the tally of signatures by petition district, if required, and transmit the documents with the certificate to the Secretary of State. If a petition district comprises more than one county and the petition proposes a statute, an amendment to a statute or an amendment to the Constitution, the appropriate county clerks shall comply with the regulations adopted by the Secretary of State pursuant to this section to complete the certificate. A copy of this certificate must be filed in the clerk’s office. When the county clerk transmits the certificate to the Secretary of State, the county clerk shall notify the Secretary of State of the number of requests to remove a name received by the county clerk pursuant to NRS 295.055 or 306.015.

      [5.] 6.  A person who submits a petition to the county clerk which is required to be verified pursuant to NRS 293.128, 293.165, 293.172, 293.200, 295.056, 298.109, 306.035 or 306.110 must be allowed to witness the verification of the signatures. A public officer who is the subject of a recall petition must also be allowed to witness the verification of the signatures on the petition.

      [6.] 7.  For any petition containing signatures which are required to be verified pursuant to the provisions of NRS 293.165, 293.200, 306.035 or 306.110 for any county, district or municipal office within one county, the county clerk shall not transmit to the Secretary of State the documents containing the signatures of the registered voters.

      [7.] 8.  The Secretary of State [may] shall by regulation establish further procedures for carrying out the provisions of this section.

      Sec. 8.  NRS 293.1278 is hereby amended to read as follows:

      293.1278  1.  If the certificates received by the Secretary of State from all the county clerks establish that the number of valid signatures is less than 90 percent of the required number of registered voters, the petition shall be deemed to have failed to qualify, and the Secretary of State shall immediately so notify the petitioners and the county clerks.

      2.  If those certificates establish that the number of valid signatures is equal to or more than the sum of 100 percent of the number of registered voters needed to make the petition sufficient plus the total number of requests to remove a name received by the county clerks pursuant to NRS 295.055 or 306.015 [,] and, in the case of a petition proposing a statute, an amendment to a statute or an amendment to the Constitution, that the petition has the minimum number of signatures required for each petition district, the petition shall be deemed to qualify as of the date of receipt by the Secretary of State of those certificates, and the Secretary of State shall immediately so notify the petitioners and the county clerks.

      3.  If the certificates establish that the petitioners have 100 percent or more of the number of registered voters needed to make the petition sufficient but the petition fails to qualify pursuant to subsection 2, each county clerk who received a request to remove a name pursuant to NRS 295.055 or 306.015 shall remove each name as requested, amend the certificate and transmit the amended certificate to the Secretary of State.

 


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κ2009 Statutes of Nevada, Page 2590 (Chapter 460, SB 212)κ

 

county clerk who received a request to remove a name pursuant to NRS 295.055 or 306.015 shall remove each name as requested, amend the certificate and transmit the amended certificate to the Secretary of State. If the amended certificates establish that the petitioners have 100 percent or more of the number of registered voters needed to make the petition sufficient [,] and, in the case of a petition proposing a statute, an amendment to a statute or an amendment to the Constitution, that the petition has the minimum number of signatures required for each petition district, the petition shall be deemed to qualify as of the date of receipt by the Secretary of State of the amended certificates, and the Secretary of State shall immediately so notify the petitioners and the county clerks.

      Sec. 9.  NRS 293.1279 is hereby amended to read as follows:

      293.1279  1.  If the statistical sampling shows that the number of valid signatures filed is 90 percent or more, but less than the sum of 100 percent of the number of signatures of registered voters needed to declare the petition sufficient plus the total number of requests to remove a name received by the county clerks pursuant to NRS 295.055 or 306.015, the Secretary of State shall order the county clerks to examine the signatures for verification. The county clerks shall examine the signatures for verification until they determine that 100 percent of the number of signatures of registered voters needed to declare the petition sufficient are valid. If the county clerks received a request to remove a name pursuant to NRS 295.055 or 306.015, the county clerks may not determine that 100 percent of the number of signatures of registered voters needed to declare the petition sufficient are valid until they have removed each name as requested pursuant to NRS 295.055 or 306.015.

      2.  Except as otherwise provided in this subsection, if the statistical sampling shows that the number of valid signatures filed in any county is 90 percent or more but less than the sum of 100 percent of the number of signatures of registered voters needed to constitute 10 percent of the number of voters who voted at the last preceding general election in that county plus the total number of requests to remove a name received by the county clerk in that county pursuant to NRS 295.055 or 306.015, the Secretary of State may order the county clerk in that county to examine every signature for verification. If the county clerk received a request to remove a name pursuant to NRS 295.055 or 306.015, the county clerk may not determine that 100 percent or more of the number of signatures of registered voters needed to constitute 10 percent of the number of voters who voted at the last preceding general election in that county are valid until he has removed each name as requested pursuant to NRS 295.055 or 306.015. In the case of a petition for initiative that proposes a statute, an amendment to a statute or an amendment to the Constitution of this State, if the statistical sampling shows that the number of valid signatures in any [county] petition district is 90 percent or more but less than the sum of 100 percent of the number of signatures of registered voters required for that [county] petition district pursuant to NRS 295.012 plus the total number of requests to remove a name received by the county clerk [in that] or county clerks, if the petition district comprises more than one county , pursuant to NRS 295.055, the Secretary of State may order the county clerk to examine every signature for verification.

      3.  Within 12 days, excluding Saturdays, Sundays and holidays, after receipt of such an order, the county clerk or county clerks shall determine from the records of registration what number of registered voters have signed the petition [.]

 


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κ2009 Statutes of Nevada, Page 2591 (Chapter 460, SB 212)κ

 

the petition [.] and, if appropriate, tally those signatures by petition district. If necessary, the board of county commissioners shall allow the county clerk additional assistants for examining the signatures and provide for their compensation. In determining from the records of registration what number of registered voters have signed the petition [,] and in determining in which petition district the voters reside, the county clerk must use the statewide voter registration list. The county clerk may rely on the appearance of the signature and the address and date included with each signature in determining the number of registered voters that signed the petition.

      4.  Except as otherwise provided in subsection 5, upon completing the examination, the county clerk or county clerks shall immediately attach to the documents of the petition an amended certificate, properly dated, showing the result of the examination and shall immediately forward the documents with the amended certificate to the Secretary of State. A copy of the amended certificate must be filed in the county clerk’s office. In the case of a petition to propose a statute, an amendment to a statute or an amendment to the Constitution, if a petition district comprises more than one county, the county clerks shall comply with the regulations adopted by the Secretary of State pursuant to this section to complete the amended certificate.

      5.  For any petition containing signatures which are required to be verified pursuant to the provisions of NRS 293.165, 293.200, 306.035 or 306.110 for any county, district or municipal office within one county, the county clerk shall not forward to the Secretary of State the documents containing the signatures of the registered voters.

      6.  Except for a petition to recall a county, district or municipal officer, the petition shall be deemed filed with the Secretary of State as of the date on which he receives certificates from the county clerks showing the petition to be signed by the requisite number of voters of the State.

      7.  If the amended certificates received from all county clerks by the Secretary of State establish that the petition is still insufficient, he shall immediately so notify the petitioners and the county clerks. If the petition is a petition to recall a county, district or municipal officer, the Secretary of State shall also notify the officer with whom the petition is to be filed.

      8.  The Secretary of State shall adopt regulations to carry out the provisions of this section.

      Sec. 10.  NRS 293.4687 is hereby amended to read as follows:

      293.4687  1.  The Secretary of State shall maintain a website on the Internet for public information maintained, collected or compiled by the Secretary of State that relates to elections, which must include, without limitation:

      (a) The Voters’ Bill of Rights required to be posted on his Internet website pursuant to the provisions of NRS 293.2549;

      (b) The abstract of votes required to be posted on a website pursuant to the provisions of NRS 293.388; [and]

      (c) A current list of the registered voters in this State that also indicates the petition district in which each registered voter resides;

      (d) A map or maps indicating the boundaries of each petition district; and

      (e) All reports on campaign contributions and expenditures submitted to the Secretary of State pursuant to the provisions of NRS 294A.120, 294A.125, 294A.140, 294A.150, 294A.200, 294A.210, 294A.220, 294A.270, 294A.280, 294A.283, 294A.360 and 294A.362 and all reports on contributions received by and expenditures made from a legal defense fund submitted to the Secretary of State pursuant to NRS 294A.286.

 


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κ2009 Statutes of Nevada, Page 2592 (Chapter 460, SB 212)κ

 

294A.270, 294A.280, 294A.283, 294A.360 and 294A.362 and all reports on contributions received by and expenditures made from a legal defense fund submitted to the Secretary of State pursuant to NRS 294A.286.

      2.  The abstract of votes required to be maintained on the website pursuant to paragraph (b) of subsection 1 must be maintained in such a format as to permit the searching of the abstract of votes for specific information.

      3.  If the information required to be maintained by the Secretary of State pursuant to subsection 1 may be obtained by the public from a website on the Internet maintained by a county clerk or city clerk, the Secretary of State may provide a hyperlink to that website to comply with the provisions of subsection 1 with regard to that information.

      Sec. 11.  Chapter 295 of NRS is hereby amended by adding thereto a new section to read as follows:

      “Petition district” has the meaning ascribed to it in section 2 of this act.

      Sec. 12.  NRS 295.012 is hereby amended to read as follows:

      295.012  [1.]  A petition for initiative that proposes a statute, an amendment to a statute or an amendment to the Constitution must be proposed by a number of registered voters from each [county] petition district in the State that is at least equal to 10 percent of the voters who voted in [the entire State] that petition district at the last preceding general election . [multiplied by the population percentage for that county.

      2.  As used in this section:

      (a) “Total population of the State” means the determination of the total population of the State by the national decennial census conducted by the Bureau of the Census of the United States Department of Commerce pursuant to Section 2 of Article I of the Constitution of the United States and reported by the Secretary of Commerce to the Governor pursuant to 13 U.S.C. § 141(c).

      (b) “Population percentage for that county” means the figure obtained by dividing the population of the county, as determined by the national decennial census conducted by the Bureau of the Census of the United States Department of Commerce pursuant to Section 2 of Article I of the Constitution of the United States and reported by the Secretary of Commerce to the Governor pursuant to 13 U.S.C. § 141(c), by the total population of the State.]

      Sec. 13.  NRS 295.055 is hereby amended to read as follows:

      295.055  1.  The Secretary of State shall by regulation specify:

      (a) The format for the signatures on a petition for an initiative or referendum and make free specimens of the format available upon request. The regulations must ensure that the format includes, without limitation, that:

            (1) In addition to signing the petition, a person who signs a petition [shall print] :

                  (I) Shall print his given name followed by his surname on the petition before his signature [.] ; and

                  (II) May indicate the petition district in which he resides. If the person does not indicate the petition district on the petition, the circulator shall indicate the petition district of the person if known.

            (2) Each signature must be dated.

 

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