Assembly Bill No.
343–Assemblyman Carpenter
(by request)
CHAPTER..........
AN ACT relating to travel and tourism; requiring a seller of travel to include his registration number in his advertising; requiring a seller of travel to maintain a trust account for money paid to the seller of travel by consumers; revising the definition of “seller of travel”; requiring the Consumer Affairs Division of the Department of Business and Industry to mail to a seller of travel an application for the renewal of his certificate before the expiration of his current certificate; establishing an account for a consumer to recover damages for certain actions of a seller of travel; repealing the provisions that require a seller of travel to comply with certain financial security requirements; repealing the provisions allowing a consumer to recover damages from security deposited by a seller of travel with the Division; requiring tour brokers and tour operators to register with the Division annually; requiring sellers of travel, tour brokers and tour operators to pay certain fees relating to registration; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN
SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. Chapter 598 of NRS is hereby amended by adding
thereto the provisions set forth as sections 2 to 10.5, inclusive, of
this act.
Sec. 2. “Account” means the account established pursuant to
section 6 of this act.
Sec. 3. “Consumer” means a person who pays money to a
seller of travel for the purchase of travel services or a vacation
certificate.
Sec. 4. A seller of travel shall include the registration
number from his certificate of registration in any advertising
conducted by, or on the behalf of, the seller of travel. The
statement must be prominently displayed in the advertisement and
be in substantially the following form in at least 10-point bold type
in a font that is easy to read:
Nevada Seller of Travel
Registration No. _____.
Sec. 5. 1. A seller of travel shall maintain a trust account
in a bank, credit union or savings and loan association in this
state for the purpose of depositing all money that a consumer pays
to the seller of travel for the purchase of travel services or a
vacation certificate.
2. If a consumer pays money to a seller of travel for the
purchase of travel services or a vacation certificate, the seller of
travel shall deposit all such money in the trust account maintained
by the seller of travel not later than 2 business days after the date
on which the consumer pays the money to the seller of travel.
3. The seller of travel shall pay out of the trust account the
money paid to the seller of travel by the consumer as needed to
complete the purchase of the travel services or vacation certificate
purchased by the consumer.
Sec. 6. 1. The Division shall administer and account
separately for the money received from each seller of travel
pursuant to the provisions of paragraph (c) of subsection 1 and
paragraph (c) of subsection 4 of NRS 598.365. The Division may
refer to the money in the account as the “Recovery Fund.”
2. Except as otherwise provided in section 10 of this act, the
money in the account must be used to pay claims made by
consumers who are eligible for recovery from the account
pursuant to sections 7 and 8 of this act.
Sec. 7. 1. Except as otherwise provided in subsection 5, a
consumer who is eligible for recovery from the account must file a
complaint with the Division or its designee not later than 1 year
after the scheduled date of completion of the travel purchased by
the consumer. The consumer must file the complaint on a form
established for this purpose by the Division.
2. If the Division receives a complaint pursuant to subsection
1, the Division or its designee shall hold a hearing on the
complaint. The Division shall:
(a) Affix the time and place for the hearing; and
(b) Notify the interested parties, in writing, at least 10 days
before the date affixed for the hearing, of the time and place of the
hearing.
3. Any testimony taken at the hearing must be considered a
part of the record of the hearing before the Division or its
designee.
4. The hearing must be public if a request is made for a
public hearing.
5. If a consumer has obtained a judgment in any court of
competent jurisdiction for recovery of damages against a seller of
travel, the consumer may file with the Division or its designee a
complaint for recovery of the judgment from the account. The
consumer must file the complaint not later than 2 years after
the entry of the judgment. The consumer is eligible for recovery of
the judgment from the account if:
(a) The judgment is for actual damages suffered by the
consumer as a result of:
(1) Any act of fraud or misrepresentation by the seller of
travel acting in his capacity as a seller of travel;
(2) The bankruptcy of the seller of travel;
(3) The breach of any contract entered into by the seller of
travel in his capacity as a seller of travel; or
(4) The violation by the seller of travel of any provision of
NRS 598.305 to 598.365, inclusive, and sections 2 to 10, inclusive,
of this act;
(b) The proceedings in connection with the judgment,
including all appeals, have terminated;
(c) The consumer files the complaint on a form established for
this purpose by the Division;
(d) The consumer submits proof satisfactory to the Division of
the judgment; and
(e) Upon obtaining payment from the account, the consumer
assigns his rights to enforce the judgment to the Division.
6. If a consumer files a complaint pursuant to this section,
the Division or its designee shall act upon the complaint not later
than 60 days after the date on which the complaint is filed with the
Division, unless the Division:
(a) Determines that the complaint involves complex issues that
may not reasonably be resolved within 60 days; and
(b) Notifies the interested parties, in writing, that the time for
acting on the complaint will be extended. If the Division provides
such notice to the interested parties, the Division shall act upon
the complaint not later than 180 days after the date on which the
complaint is filed with the Division.
Sec. 8. 1. Except as otherwise provided in subsection 2, a
consumer is eligible for recovery from the account if:
(a) The Division or its designee, after conducting a hearing on
a complaint filed pursuant to the provisions of subsection 1 of
section 7 of this act, finds that the consumer suffered actual
damages as a result of:
(1) Any act of fraud or misrepresentation by the seller of
travel acting in his capacity as a seller of travel;
(2) The bankruptcy of the seller of travel;
(3) The breach of any contract entered into by the seller of
travel in his capacity as a seller of travel; or
(4) The violation by the seller of travel of any provision of
NRS 598.305 to 598.365, inclusive, and sections 2 to 10, inclusive,
of this act; or
(b) The consumer complies with the provisions of subsection 5
of section 7 of this act for the recovery of a judgment from the
account.
2. A consumer is not eligible for recovery from the account if:
(a) The consumer is the spouse of the seller of travel or is a
personal representative of the spouse of the seller of travel;
(b) The consumer was associated in a business relationship
with the seller of travel other than with regard to the travel
services or vacation certificate at issue;
(c) At the time the consumer paid money to the seller of travel
for the purchase of the travel services or vacation certificate at
issue, the seller of travel was not registered with the Division as
required by NRS 598.365; or
(d) The consumer is seeking recovery of losses which were
incurred by the consumer as the result of a cancellation penalty
that:
(1) Was fully disclosed and agreed to by the consumer at
the time the consumer entered into the contract for the purchase
of the travel services or vacation certificate at issue; and
(2) Was imposed against the consumer, in accordance with
the terms of the contract, after the cancellation of the travel
services or vacation certificate at issue.
3. If the Division or its designee finds that a consumer is
eligible for recovery from the account pursuant to this section, the
Division or its designee may pay out of the account:
(a) If the complaint was filed pursuant to subsection 1 of
section 7 of this act, the amount of actual damages suffered, but
not to exceed $10,000; or
(b) If the complaint was filed pursuant to subsection 5 of
section 7 of this act, the amount of actual damages included in the
judgment and remaining unpaid, but not to exceed $10,000.
4. If a consumer has recovered a portion of his losses from
sources other than the account, the Division shall deduct the
amount recovered from the other sources from the amount
payable upon the claim and direct the difference to be paid from
the account.
5. To the extent that payments are made from the account to
a consumer, the Division is subrogated to the rights of the
consumer. The Division and the Attorney General shall promptly
enforce all subrogation claims.
6. The amount of recovery from the account based upon
claims made against any single seller of travel:
(a) Must not exceed $200,000; and
(b) For any single action of the seller of travel, must not
exceed 20 percent of the balance of the account.
Sec. 9. 1. A seller of travel shall display conspicuously, at
each place of business of the seller of travel and on any website
maintained by the seller of travel for business purposes, a legible
and typewritten statement that notifies consumers that they may be
eligible to recover certain financial damages from the Recovery
Fund. The written statement must be in substantially the following
form:
RECOVERY FUND FOR CONSUMERS
DAMAGED BY SELLERS OF TRAVEL
You may be eligible for payment from the Recovery
Fund if you have paid money to a seller of travel registered
in this state for the purchase of travel services or a vacation
certificate and you have suffered certain financial damages
as a result of the transaction. To obtain information relating
to your rights under the Recovery Fund and the filing of a
claim for recovery from the Recovery Fund, you may
contact the Consumer Affairs Division of the Department of
Business and Industry at the following locations:
SOUTHERN NEVADA: 1850 East Sahara Avenue
Suite 101
Las Vegas, Nevada 89104
Phone: 702.486.7355
Fax: 702.486.7371
NORTHERN NEVADA: 4600 Kietzke Lane
Building B, Suite 113
Reno, Nevada 89502
Phone: 775.688.1800
Fax: 775.688.1803
2. The Division may impose upon a seller of travel an
administrative fine of not more than:
(a) For the first violation of subsection 1, $100; and
(b) For a second or subsequent violation of subsection 1, $250.
3. The Division shall deposit any money received pursuant to
this section in the account established pursuant to section 6 of this
act.
4. The provisions of NRS 598.305 to 598.365, inclusive, and
sections 2 to 10, inclusive, of this act do not limit the authority of
the Division to take disciplinary action against a seller of travel.
Sec. 10. 1. The Division shall:
(a) On or before February 1 of each year, prepare and submit
to the Director of the Legislative Counsel Bureau for transmittal
to the appropriate legislative committee if the Legislature is in
session, or to the Interim Finance Committee if the Legislature is
not in session, a statement of the condition of the account that is
prepared in accordance with generally accepted accounting
principles.
(b) Employ accountants as necessary for the performance of
the duties set forth in this section and pay any related expenses
from the money in the account. Except as otherwise provided in
subsection 3, the expenditures made by the Division pursuant to
this paragraph must not exceed $10,000 in any fiscal year.
(c) Employ or contract with persons and procure necessary
equipment, supplies and services to be paid from or purchased
with the money in the account as may be necessary to monitor or
process claims filed by consumers that may result in a recovery
from the account.
2. Any interest earned on the money in the account must be
credited to the account. The Division may expend the interest
earned on the money in the account to increase public awareness
of the account. Except as otherwise provided in subsection 3, the
expenditures made by the Division for this purpose must not
exceed $50,000 in any fiscal year.
3. The total expenditures made by the Division pursuant to
this section must not exceed 10 percent of the account in any fiscal
year.
4. Once an initial balance of $200,000 exists in the account,
the Division shall maintain a minimum balance of $200,000 in the
account.
5. The Division shall adopt such regulations as are necessary
to carry out the provisions of NRS 598.305 to 598.365, inclusive,
and sections 2 to 10, inclusive, of this act, including, without
limitation, regulations governing:
(a) The disbursement of money from the account; and
(b) The manner in which a complaint is filed with the Division
or its designee pursuant to the provisions of section 7 of this act.
Sec. 10.5. 1. Before advertising its services or conducting
business in this state, a tour broker or tour operator must register
with the Division by:
(a) Submitting to the Division an application for registration
on a form prescribed by the Division;
(b) Paying to the Division a fee of $25; and
(c) If the tour broker or tour operator is subject to the
provisions of NRS 598.495, depositing the security required by
NRS 598.495 with the Division.
2. The Division shall issue a certificate of registration to the
tour broker or tour operator upon receipt of:
(a) The security in the proper form as required by NRS
598.495, if the tour broker or tour operator is subject to the
provisions of NRS 598.495; and
(b) The payment of the fee required by subsection 1.
3. A certificate of registration:
(a) Is not transferable or assignable; and
(b) Expires 1 year after it is issued.
4. A tour broker or tour operator must renew a certificate of
registration issued pursuant to this section before the certificate
expires by:
(a) Submitting to the Division an application for the renewal
of the certificate on a form prescribed by the Division; and
(b) Paying to the Division a fee of $25.
Sec. 11. NRS 598.0999 is hereby amended to read as follows:
598.0999 1. A person who violates a court order or
injunction issued pursuant to the provisions of NRS 598.0903 to
598.0999, inclusive, upon a complaint brought by the
Commissioner, the Director, the district attorney of any county of
this state or the Attorney General shall forfeit and pay to the State
General Fund a civil penalty of not more than $10,000 for each
violation. For the purpose of this section, the court issuing the order
or injunction retains jurisdiction over the action or proceeding. Such
civil penalties are in addition to any other penalty or remedy
available for the enforcement of the provisions of NRS 598.0903 to
598.0999, inclusive.
2. In any action brought pursuant to the provisions of NRS
598.0903 to 598.0999, inclusive, if the court finds that a person has
willfully engaged in a deceptive trade practice, the Commissioner,
the Director, the district attorney of any county in this state or the
Attorney General bringing the action may recover a civil penalty not
to exceed $2,500 for each violation. The court in any such action
may, in addition to any other relief or reimbursement, award
reasonable attorney’s fees and costs.
3. A natural person, firm, or any officer or managing agent of
any corporation or association who knowingly and willfully engages
in a deceptive trade practice:
(a) For the first offense, is guilty of a misdemeanor.
(b) For the second offense, is guilty of a gross misdemeanor.
(c) For the third and all subsequent offenses, is guilty of a
category D felony and shall be punished as provided in
NRS 193.130.
4. Any offense which occurred within 10 years immediately
preceding the date of the principal offense or after the principal
offense constitutes a prior offense for the purposes of subsection 3
when evidenced by a conviction, without regard to the sequence of
the offenses and convictions.
5. If a person violates any provision of NRS 598.0903 to
598.0999, inclusive, 598.100 to 598.2801, inclusive, 598.305
to [598.395,] 598.365, inclusive, and sections 2 to 10, inclusive, of
this act, 598.405 to 598.525, inclusive, and section 10.5 of this act,
598.741 to 598.787, inclusive, or 598.840 to 598.966, inclusive,
fails to comply with a judgment or order of any court in this state
concerning a violation of such a provision, or fails to comply with
an assurance of discontinuance or other agreement concerning an
alleged violation of such a provision, the Commissioner or the
district attorney of any county may bring an action in the name of
the State of Nevada seeking:
(a) The suspension of the person’s privilege to conduct business
within this state; or
(b) If the defendant is a corporation, dissolution of the
corporation.
The court may grant or deny the relief sought or may order other
appropriate relief.
Sec. 12. NRS 598.305 is hereby amended to read as follows:
598.305 As used in NRS 598.305 to [598.395,] 598.365,
inclusive, and sections 2 to 10, inclusive, of this act, unless the
context otherwise requires, the words and terms defined in NRS
[598.315] 598.325 to 598.356, inclusive, and sections 2 and 3 of
this act have the meanings ascribed to them in those sections.
Sec. 13. NRS 598.335 is hereby amended to read as follows:
598.335 “Seller of travel” means a person who offers for sale,
directly or indirectly, transportation by air, land, rail or water, travel
services, vacation certificates or any combination thereof, to a
person or group of persons for a fee, commission or other valuable
consideration. The term:
1. Includes any person who offers membership in a travel club
or any services related to travel for an advance fee [or payment.] ,
payment or deposit.
2. Does not include:
(a) A person who:
(1) Contracts with a seller of travel to sell travel services or
vacation certificates on behalf of the seller of travel;
(2) Receives compensation for selling the travel services or
vacation certificates only from the seller of travel; and
(3) Requires the consumer who purchases the travel
services or vacation certificates to pay for the travel services or
vacation certificates by transmitting payment directly to the
provider of the travel services or vacation certificates or the seller
of travel;
(b) A hotel that provides or arranges travel services for its
patrons or guests;
[(b)] (c) A person who, for compensation, transports persons or
property by air, land, rail or water; [or
(c)] (d) A tour broker or tour operator who is subject to the
provisions of NRS 598.405 to 598.525, inclusive [.] , and section
10.5 of this act; or
(e) A motor club as defined in NRS 696A.050.
Sec. 13.5. NRS 598.345 is hereby amended to read as follows:
598.345 “Travel services” includes, without limitation:
1. Short-term leases of passenger cars;
2. Lodging;
3. Transfers;
4. Sightseeing tours other than sightseeing tours for which a
tour broker or tour operator is regulated pursuant to NRS 598.405 to
598.525, inclusive [;] , and section 10.5 of this act; and
5. Any other services that are related to travel by air, land, rail
or water , or any other method of transportation.
Sec. 14. NRS 598.365 is hereby amended to read as follows:
598.365 1. Before advertising its services or conducting
business in this state, a seller of travel must register with the
Division by:
(a) Submitting to the Division an application for registration on
a form prescribed by the Division;
(b) Paying to the Division a fee of $25; and
(c) [Depositing the security required pursuant to NRS 598.375,
if any, with the Division.] Paying to the Division a fee of $100 for
deposit to the account established pursuant to section 6 of this act.
2. The Division shall issue a certificate of registration to the
seller of travel upon receipt of [:
(a) The security in the proper form if the seller of travel is
required to deposit security pursuant to NRS 598.375; and
(b) The] the payment of [the fee] any fees required by this
section.
3. A certificate of registration:
(a) Is not transferable or assignable; and
(b) Expires 1 year after it is issued.
4. A seller of travel must renew a certificate of registration
issued pursuant to this section before the certificate expires by:
(a) Submitting to the Division an application for the renewal of
the certificate on a form prescribed by the Division; [and]
(b) Paying to the Division a fee of $25 [.] ; and
(c) Paying to the Division a fee of $100 for deposit to the
account established pursuant to section 6 of this act.
5. The Division shall mail an application for the renewal of a
certificate to the last known address of a seller of travel at least 30
days before the expiration of the certificate.
6. The provisions of this section do not require a person
described in paragraph (a) of subsection 2 of NRS 598.335 to
register with the Division.
Sec. 14.3. NRS 598.405 is hereby amended to read as follows:
598.405 As used in NRS 598.405 to 598.525, inclusive, and
section 10.5 of this act, unless the context otherwise requires, the
words and terms defined in NRS 598.416 to 598.465, inclusive,
have the meanings ascribed to them in those sections.
Sec. 14.7. NRS 598.525 is hereby amended to read as follows:
598.525 The Commissioner may adopt such regulations as the
Commissioner determines are necessary to carry out the intent of
NRS 598.405 to 598.525, inclusive [.] , and section 10.5 of this act.
Sec. 15. NRS 598.315, 598.375, 598.385 and 598.395 are
hereby repealed.
Sec. 16. 1. Except as otherwise provided in subsections 2
and 3, the Consumer Affairs Division of the Department of Business
and Industry shall return any security deposited with the Division by
a seller of travel pursuant to NRS 598.365, as the provisions of that
section existed before October 1, 2003.
2. The Consumer Affairs Division of the Department of
Business and Industry shall not return any security deposited with
the Division by a seller of travel pursuant to NRS 598.365, as the
provisions of that section existed before October 1, 2003, if:
(a) Before October 1, 2003, a consumer has brought an action to
recover from the security pursuant to the provisions of NRS
598.385, as the provisions of that section existed before October 1,
2003; and
(b) The proceedings in connection with the action, including all
appeals, have not terminated.
3. If, pursuant to the provisions of subsection 2, the Consumer
Affairs Division of the Department of Business and Industry does
not return the security deposited with the Division by a seller of
travel pursuant to NRS 598.365, as the provisions of that section
existed before October 1, 2003, the Division shall return the security
to the seller of travel when all proceedings in connection with all
actions, including all appeals, brought pursuant to the provisions of
NRS 598.385 against the seller of travel have terminated.
4. If, before October 1, 2003, a consumer files an action to
recover from the security of a seller of travel pursuant to the
provisions of NRS 598.385, as the provisions of that section existed
before October 1, 2003, the provisions of that section shall apply,
for all purposes, to that action.
Sec. 17. 1. Notwithstanding the amendatory provisions of
this act, a consumer who is eligible to recover from the account
established pursuant to section 6 of this act may not file a complaint
with the Consumer Affairs Division of the Department of Business
and Industry sooner than January 1, 2004.
2. The statutes of limitations set forth in section 7 of this act
are tolled for the period beginning on October 1, 2003, and ending
on December 31, 2003.
Sec. 18. Notwithstanding the amendatory provisions of this
act, until January 1, 2004, a tour broker or tour operator may
advertise its services and conduct business in this state without
possessing a certificate of registration issued by the Consumer
Affairs Division of the Department of Business and Industry
pursuant to section 10.5 of this act, unless the Division establishes
an earlier date for compliance with the provisions of section 10.5 of
this act.
Sec. 19. This act becomes effective:
1. Upon passage and approval for the purposes of adopting
regulations and performing any other preparatory administrative
tasks that are necessary to carry out the provisions of this act; and
2. On October 1, 2003, for all other purposes.
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