Link to Page 3542

 

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

ê2011 Statutes of Nevada, Page 3543ê

 

CHAPTER 514, AB 536

Assembly Bill No. 536–Committee on Health and Human Services

 

CHAPTER 514

 

[Approved: June 17, 2011]

 

AN ACT relating to the protection of children; requiring an investigation of the criminal history of certain persons associated with certain facilities that provide residential services to children; requiring such a facility to terminate the employment of or remove from the facility certain persons based on the results of an investigation of the person’s criminal history; requiring the maintenance of records concerning the employees and residents of the facility; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Under existing law, certain types of facilities which provide residential services to children are required to obtain background investigations for holders of licenses, employees and certain residents of the facility, including, without limitation, foster homes and child care facilities. (NRS 424.031, 432A.170) Existing law does not require similar background investigations to be conducted for holders of licenses and employees of other types of facilities which provide residential services to children, including, without limitation, juvenile justice facilities, facilities that provide mental health treatment to children, and other medical and related facilities which provide residential services to children. (Chapters 62B and 433B of NRS, NRS 449.176, 449.179) This bill prescribes, to the extent applicable, standard requirements for background investigations, records of background investigations, supervision of persons pending background investigations and termination of the employment of persons who have committed certain crimes.

       Sections 2-6 of this bill prohibit a person from having unsupervised contact with a child pending the outcome of his or her background investigation and require foster homes to terminate the employment of an employee or remove a resident who is over 18 years of age if the person has been convicted of a crime prescribed in section 4. Sections 2-6 also require foster homes to maintain certain records relating to background investigations which are conducted for employees and residents of the homes. A background investigation must be conducted every 5 years after the initial investigation.

       Sections 8-10 of this bill require child care facilities to maintain certain records for certain employees, residents and participants of the facilities and prohibit unsupervised contact with a child pending the results of a background investigation. A background investigation must be conducted every 5 years after the initial investigation.

       Sections 12-14 of this bill require the employees of public or private institutions and agencies to which a juvenile court commits a child to receive background investigations. Sections 12-14 also prohibit a person from having unsupervised contact with a child pending the outcome of his or her background investigation and require institutions and agencies to terminate the employment of employees who have been convicted of a crime prescribed in section 12. Sections 12-14 further require the maintenance of certain records relating to the background investigations which are conducted for employees. A background investigation must be conducted every 5 years after the initial investigation.

 


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

ê2011 Statutes of Nevada, Page 3544 (Chapter 514, AB 536)ê

 

       Sections 17-19 of this bill require certain facilities which provide residential mental health treatment to children to conduct background investigations of all employees of the facility. Sections 17-19 also prohibit a person from having unsupervised contact with a child pending the outcome of his or her background investigation and require such facilities to terminate the employment of employees who have been convicted of a crime prescribed in section 17. Sections 17-19 also require those facilities to maintain certain records relating to the background investigations which are conducted for employees. A background investigation must be conducted every 5 years after the initial investigation.

       Under existing law, each applicant for a license to operate and each employee of a facility for intermediate care, facility for skilled nursing, residential facility for groups, agency to provide personal care services in the home or home for individual residential care must submit to a background investigation. (NRS 449.173-449.188) These provisions specifically exclude a facility for the treatment of abuse of alcohol or drugs under existing law. Sections 20-24 of this bill include other medical facilities and facilities for the treatment of abuse of alcohol or drugs if those facilities provide residential services to children. Sections 20-24 also amend provisions relating to unsupervised contact with children and the maintenance of records to be consistent with this bill.

       Section 25 of this bill requires persons who are required to submit to background investigations pursuant to the amendatory provisions of this bill to submit to such investigations on or before October 1, 2011, and authorizes such persons to have contact with children without supervision pending the results of the investigation.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  Chapter 424 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.

     Sec. 2.  1.  Upon receiving information from the licensing authority or its designee pursuant to NRS 424.033 or evidence from any other source that an employee of an applicant for a license to conduct a foster home or a person who is licensed to conduct a foster home or a resident of an applicant or licensee who is 18 years of age or older has been convicted of a crime listed in NRS 424.031, the applicant or licensee shall terminate the employment of the employee or remove the resident from the foster home after allowing the employee or resident time to correct the information as required pursuant to subsection 2.

     2.  If an employee or resident believes that the information provided pursuant to subsection 1 is incorrect, the employee or resident must inform the applicant or licensee immediately. An applicant or licensee that is so informed shall give the employee or resident 30 days to correct the information.

     3.  During the period in which an employee or resident seeks to correct information pursuant to subsection 2, it is within the discretion of the applicant or licensee whether to allow the employee or resident to continue to work for or reside at the foster home, as applicable, except that the employee or resident shall not have contact with a child in the foster home without supervision during any such period.

     Sec. 3.  1.  Each applicant for a license to conduct a foster home and each person licensed to conduct a foster home shall maintain records of the information concerning its employees and any residents of the foster home who are 18 years of age or older that is collected pursuant to NRS 424.031 and 424.033 and section 2 of this act, including, without limitation:

 


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

ê2011 Statutes of Nevada, Page 3545 (Chapter 514, AB 536)ê

 

home who are 18 years of age or older that is collected pursuant to NRS 424.031 and 424.033 and section 2 of this act, including, without limitation:

     (a) A copy of the fingerprints that were submitted to the Central Repository for Nevada Records of Criminal History and a copy of the written authorization that was provided by the employee or resident;

     (b) Proof that the fingerprints of the employee or resident were submitted to the Central Repository; and

     (c) Any other documentation of the information collected pursuant to NRS 424.031 and 424.033 and section 2 of this act.

     2.  The records maintained pursuant to subsection 1 must be:

     (a) Maintained for the period of the employee’s employment with or resident’s presence at the foster home; and

     (b) Made available for inspection by the licensing authority or its approved designee at any reasonable time, and copies thereof must be furnished to the licensing authority upon request.

     Sec. 4.  NRS 424.031 is hereby amended to read as follows:

     424.031  1.  The licensing authority or a person or entity designated by the licensing authority shall obtain from appropriate law enforcement agencies information on the background and personal history of each applicant for a license to conduct a foster home, [prospective] person who is licensed to conduct a foster home, employee of that applicant or [of a person who is licensed to conduct a foster home,] licensee, and resident of a foster home who is 18 years of age or older, to determine whether the person investigated has been arrested for or convicted of [any crime.] :

     (a) Murder, voluntary manslaughter or mayhem;

     (b) Any other felony involving the use of a firearm or other deadly weapon;

     (c) Assault with intent to kill or to commit sexual assault or mayhem;

     (d) Sexual assault, statutory sexual seduction, incest, lewdness, indecent exposure or any other sexually related crime;

     (e) Abuse or neglect of a child or contributory delinquency;

     (f) A violation of any federal or state law regulating the possession, distribution or use of any controlled substance or any dangerous drug as defined in chapter 454 of NRS;

     (g) Abuse, neglect, exploitation or isolation of older persons or vulnerable persons, including, without limitation, a violation of any provision of NRS 200.5091 to 200.50995, inclusive, or a law of any other jurisdiction that prohibits the same or similar conduct; or

     (h) Any offense involving fraud, theft, embezzlement, burglary, robbery, fraudulent conversion or misappropriation of property within the immediately preceding 7 years.

     2.  The licensing authority or its approved designee may charge each person investigated pursuant to this section for the reasonable cost of that investigation.

     3.  Unless a preliminary Federal Bureau of Investigation Interstate Identification Index name-based check of the records of criminal history has been conducted pursuant to NRS 424.039, a person who is required to submit to an investigation pursuant to this section shall not have contact with a child in a foster home without supervision before the investigation of the background and personal history of the person has been conducted.

 


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

ê2011 Statutes of Nevada, Page 3546 (Chapter 514, AB 536)ê

 

     4.  The licensing authority or its designee shall conduct an investigation of each employee and resident pursuant to this section at least once every 5 years after the initial investigation.

     Sec. 5.  NRS 424.033 is hereby amended to read as follows:

     424.033  1.  Each applicant for a license to conduct a foster home, [prospective] person who is licensed to conduct a foster home, employee of that applicant or [of a person who is licensed to conduct a foster home,] licensee, or resident of a foster home who is 18 years of age or older must submit to the licensing authority or its approved designee:

     (a) A complete set of fingerprints and written permission authorizing the licensing authority or its approved designee to forward those fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report to enable the licensing authority or its approved designee to conduct an investigation pursuant to NRS 424.031; and

     (b) Written permission to conduct a child abuse and neglect screening.

     2.  For each person who submits the documentation required pursuant to subsection 1, the licensing authority or its approved designee shall conduct a child abuse and neglect screening of the person in every state in which the person has resided during the immediately preceding 5 years.

     3.  The licensing authority or its approved designee may exchange with the Central Repository or the Federal Bureau of Investigation any information respecting the fingerprints submitted.

     4.  The Division shall assist the licensing authority of another state that is conducting a child abuse and neglect screening of a person who has resided in this State by providing information which is necessary to conduct the screening if the person who is the subject of the screening has signed a written permission authorizing the licensing authority to conduct a child abuse and neglect screening. The Division may charge a fee for providing such information in an amount which does not exceed the actual cost to the Division to provide the information.

     5.  When a report from the Federal Bureau of Investigation is received by the Central Repository, it shall immediately forward a copy of the report to the licensing authority or its approved designee.

     6.  Upon receiving a report pursuant to this section, the licensing authority or its approved designee shall determine whether the person has been convicted of a crime listed in NRS 424.031.

     7.  The licensing authority shall immediately inform the applicant for a license to conduct a foster home or the person who is licensed to conduct a foster home whether an employee or resident of the foster home has been convicted of a crime listed in NRS 424.031.

     8.  The licensing authority may deny an application for a license to operate a foster home or may suspend or revoke such a license if the licensing authority determines that the applicant or licensee has been convicted of a crime listed in NRS 424.031 or has failed to terminate an employee or remove a resident of the foster home who is 18 years of age or older and has been convicted of any crime listed in NRS 424.031.

     Sec. 6.  NRS 424.090 is hereby amended to read as follows:

     424.090  The provisions of NRS 424.020 to 424.090, inclusive, and sections 2 and 3 of this act do not apply to homes in which:

     1.  Care is provided only for a neighbor’s or friend’s child on an irregular or occasional basis for a brief period, not to exceed 90 days.

 


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

ê2011 Statutes of Nevada, Page 3547 (Chapter 514, AB 536)ê

 

     2.  Care is provided by the legal guardian.

     3.  Care is provided for an exchange student.

     4.  Care is provided to enable a child to take advantage of educational facilities that are not available in his or her home community.

     5.  Any child or children are received, cared for and maintained pending completion of proceedings for adoption of such child or children, except as otherwise provided in regulations adopted by the Division.

     6.  Except as otherwise provided in regulations adopted by the Division, care is voluntarily provided to a minor child who is:

     (a) Related to the caregiver by blood, adoption or marriage; and

     (b) Not in the custody of an agency which provides child welfare services.

     7.  Care is provided to a minor child who is in the custody of an agency which provides child welfare services pursuant to chapter 432B of NRS if:

     (a) The caregiver is related to the child within the fifth degree of consanguinity; and

     (b) The caregiver is not licensed pursuant to the provisions of NRS 424.020 to 424.090, inclusive [.] , and sections 2 and 3 of this act.

     Sec. 7.  NRS 432.0125 is hereby amended to read as follows:

     432.0125  1.  The Administrator shall appoint, with the approval of the Director, a chief of each of the bureaus in the Division. The chiefs are designated respectively as:

     (a) The Superintendent of the Nevada Youth Training Center;

     (b) The Superintendent of the Caliente Youth Center;

     (c) The Chief of the Bureau of Services for Child Care; and

     (d) The Chief of the Youth Parole Bureau.

     2.  The Administrator is responsible for the administration, through the Division, of the provisions of chapters 63 and 424 of NRS, NRS 127.220 to 127.310, inclusive, 432.010 to 432.085, inclusive, and 433B.010 to 433B.350, inclusive, and sections 17, 18 and 19 of this act and all other provisions of law relating to the functions of the Division, but is not responsible for the professional activities of the components of the Division except as specifically provided by law.

     Sec. 8.  NRS 432A.170 is hereby amended to read as follows:

     432A.170  1.  The Bureau may, upon receipt of an application for a license to operate a child care facility, conduct an investigation into the:

     (a) Buildings or premises of the facility and, if the application is for an outdoor youth program, the area of operation of the program;

     (b) Qualifications and background of the applicant or the employees of the applicant;

     (c) Method of operation for the facility; and

     (d) Policies and purposes of the applicant.

     2.  The Bureau shall secure from appropriate law enforcement agencies information on the background and personal history of every applicant, licensee or employee of an applicant or licensee, or every resident of a child care facility or participant in an outdoor youth program who is 18 years of age or older, to determine whether the person has been convicted of:

     (a) Murder, voluntary manslaughter or mayhem;

     (b) Any other felony involving the use of a firearm or other deadly weapon;

     (c) Assault with intent to kill or to commit sexual assault or mayhem;

 


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

ê2011 Statutes of Nevada, Page 3548 (Chapter 514, AB 536)ê

 

     (d) Sexual assault, statutory sexual seduction, incest, lewdness, indecent exposure or any other sexually related crime;

     (e) Abuse or neglect of a child or contributory delinquency;

     (f) A violation of any federal or state law regulating the possession, distribution or use of any controlled substance or any dangerous drug as defined in chapter 454 of NRS;

     (g) Abuse, neglect, exploitation or isolation of older persons or vulnerable persons, including, without limitation, a violation of any provision of NRS 200.5091 to 200.50995, inclusive, or a law of any other jurisdiction that prohibits the same or similar conduct; or

     (h) Any offense involving fraud, theft, embezzlement, burglary, robbery, fraudulent conversion or misappropriation of property within the immediately preceding 7 years.

     3.  The Bureau shall request information concerning every applicant, licensee or employee of an applicant or licensee, or every resident of a child care facility or participant in an outdoor youth program who is 18 years of age or older, from [the] :

     (a) The Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report pursuant to NRS 432A.175; and

     (b) The Statewide Central Registry for the Collection of Information Concerning the Abuse or Neglect of a Child established pursuant to NRS 432.100 to determine whether there has been a substantiated report of child abuse or neglect made against any of them.

     4.  The Bureau may charge each person investigated pursuant to this section for the reasonable cost of that investigation.

     5.  The information required to be obtained pursuant to subsections 2 and 3 must be requested concerning an:

     (a) Employee of an applicant or licensee, resident of a child care facility or participant in an outdoor youth program who is 18 years of age or older not later than 3 days after the employee is hired, the residency begins or the participant begins participating in the program, and then at least once every [6] 5 years thereafter.

     (b) Applicant at the time that an application is submitted for licensure, and then at least once every [6] 5 years after the license is issued.

     6.  A person who is required to submit to an investigation required pursuant to this section shall not have contact with a child in a child care facility without supervision before the investigation of the background and personal history of the person has been conducted.

     Sec. 9.  NRS 432A.1755 is hereby amended to read as follows:

     432A.1755  1.  Upon receiving information pursuant to NRS 432A.175 from the Central Repository for Nevada Records of Criminal History or the Statewide Central Registry for the Collection of Information Concerning the Abuse or Neglect of a Child established pursuant to NRS 432.100 or evidence from any other source that an employee of an applicant for a license to operate a child care facility or a licensee, or a resident of a child care facility or participant in an outdoor youth program who is 18 years of age or older has been convicted of a crime listed in subsection 2 of NRS 432A.170 or has had a substantiated report of child abuse or neglect made against him or her, the applicant or licensee shall terminate the employment of the employee or remove the resident from the facility or participant from the outdoor youth program after allowing the employee, resident or participant time to correct the information as required pursuant to subsection 2.

 


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

ê2011 Statutes of Nevada, Page 3549 (Chapter 514, AB 536)ê

 

outdoor youth program after allowing the employee, resident or participant time to correct the information as required pursuant to subsection 2.

     2.  If an employee, resident or participant believes that the information provided to the applicant or licensee pursuant to subsection 1 is incorrect, the employee, resident or participant must inform the applicant or licensee immediately. The applicant or licensee shall give any such employee, resident or participant 30 days to correct the information.

     3.  During any period in which an employee, resident or participant seeks to correct information pursuant to subsection 2, it is within the discretion of the applicant or licensee whether to allow the employee, resident or participant to continue to work for or reside at the child care facility or participate in the outdoor youth program, as applicable [.] , except that the employee, resident or participant shall not have contact with a child without supervision during such a period.

     Sec. 10.  NRS 432A.1785 is hereby amended to read as follows:

     432A.1785  1.  Each applicant for a license to operate a child care facility and licensee shall maintain records of the information concerning its employees and any residents of the child care facility or participants in any outdoor youth program who are 18 years of age or older that is collected pursuant to NRS 432A.170 and 432A.175, including, without limitation:

     (a) A copy of the fingerprints that were submitted to the Central Repository for Nevada Records of Criminal History;

     (b) Proof that the applicant or licensee submitted fingerprints to the Central Repository for Nevada Records of Criminal History ; [for its report;] and

     [(b)] (c) The written authorization to obtain information from the Central Repository and the Statewide Central Registry for the Collection of Information Concerning the Abuse or Neglect of a Child established pursuant to NRS 432.100.

     2.  The records maintained pursuant to subsection 1 must be [made] :

     (a) Maintained for the period of the employee’s employment with or the resident’s presence at the child care facility or the participant’s presence in the outdoor youth program; and

     (b) Made available for inspection by the Bureau at any reasonable time [,] and copies thereof must be furnished to the Bureau upon request.

     Sec. 11.  Chapter 62B of NRS is hereby amended by adding thereto the provisions set forth as sections 11.5 to 14, inclusive, of this act.

     Sec. 11.5.  As used in sections 11.5 to 14, inclusive, of this act, “licensing authority” means the governmental entity which licenses and regulates a private institution to which a juvenile court commits a child, including without limitation, a facility for the detention of children.

     Sec. 11.7.  The provisions of sections 11.5 to 14, inclusive, of this act do not apply to a private institution to which a juvenile court commits a child, including without limitation, a facility for the detention of children, if the private institution is required to comply with similar requirements as a condition for licensure in this State.

     Sec. 12.  1.  A public institution or agency to which a juvenile court commits a child or the licensing authority of a private institution to which a juvenile court commits a child, including, without limitation, a facility for the detention of children, shall secure from appropriate law enforcement agencies information on the background and personal history of each employee of the institution or agency to determine whether the employee has been convicted of:

 


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

ê2011 Statutes of Nevada, Page 3550 (Chapter 514, AB 536)ê

 

history of each employee of the institution or agency to determine whether the employee has been convicted of:

     (a) Murder, voluntary manslaughter or mayhem;

     (b) Any other felony involving the use of a firearm or other deadly weapon;

     (c) Assault with intent to kill or to commit sexual assault or mayhem;

     (d) Sexual assault, statutory sexual seduction, incest, lewdness, indecent exposure or any other sexually related crime;

     (e) Abuse or neglect of a child or contributory delinquency;

     (f) A violation of any federal or state law regulating the possession, distribution or use of any controlled substance or any dangerous drug as defined in chapter 454 of NRS;

     (g) Abuse, neglect, exploitation or isolation of older persons or vulnerable persons, including, without limitation, a violation of any provision of NRS 200.5091 to 200.50995, inclusive, or a law of any other jurisdiction that prohibits the same or similar conduct; or

     (h) Any offense involving fraud, theft, embezzlement, burglary, robbery, fraudulent conversion or misappropriation of property within the immediately preceding 7 years.

     2.  An employee of the public or private institution or agency must submit to the public institution or agency or the licensing authority, as applicable, two complete sets of fingerprints and written authorization to forward those fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

     3.  The public institution or agency or the licensing authority, as applicable may exchange with the Central Repository or the Federal Bureau of Investigation any information concerning the fingerprints submitted.

     4.  The public institution or agency or the licensing authority, as applicable, may charge an employee investigated pursuant to this section

for the reasonable cost of that investigation.

     5.  When a report from the Federal Bureau of Investigation is received by the Central Repository, the Central Repository shall immediately forward a copy of the report to the public institution or agency or the licensing authority, as applicable, for a determination of whether the employee has been convicted of a crime listed in subsection 1.

     6.  A person who is required to submit to an investigation required pursuant to this section shall not have contact with a child without supervision in a public or private institution or agency to which a juvenile court commits a child, including, without limitation, a facility for the detention of children, before the investigation of the background and personal history of the person has been conducted.

     7.  The public institution or agency or the licensing authority, as applicable, shall conduct an investigation of each employee of the institution or agency pursuant to this section at least once every 5 years after the initial investigation.

     Sec. 13.  1.  Upon receiving information from the Central Repository for Nevada Records of Criminal History pursuant to section 12 of this act or evidence from any other source that an employee of a public institution or agency to which a juvenile court commits a child or the licensing authority of a private institution to which a juvenile court commits a child, including, without limitation, a facility for the detention of children, has been convicted of a crime listed in section 12 of this act:

 


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

ê2011 Statutes of Nevada, Page 3551 (Chapter 514, AB 536)ê

 

including, without limitation, a facility for the detention of children, has been convicted of a crime listed in section 12 of this act:

     (a) The public institution or agency shall terminate the employment of the employee after allowing the employee time to correct the information as required pursuant to subsection 2; or

     (b) The licensing authority of the private institution shall inform the private institution of the receipt of the information or evidence, and the institution shall terminate the employment of the employee after allowing the employee time to correct the information as required pursuant to subsection 2.

     2.  If an employee believes that the information provided to the public institution or agency or the licensing authority by the Central Repository pursuant to section 12 of this act is incorrect, the employee must inform his or her employing institution or agency immediately. An institution or agency that is so informed shall give the employee a reasonable amount of time of not less than 30 days to correct the information.

     3.  During the period in which an employee seeks to correct information pursuant to subsection 2, it is within the discretion of the employing institution or agency whether to allow the employee to continue to work for the institution or agency, as applicable, except that the employee shall not have contact with a child in the institution or agency without supervision during such period.

     Sec. 14.  1.  Each public institution or agency to which a juvenile court commits a child and each licensing authority of a private institution to which a juvenile court commits a child, including, without limitation, a facility for the detention of children, and each licensing agency shall maintain accurate records of the information concerning an employee collected pursuant to sections 12 and 13 of this act for the period of the employee’s employment with his or her employing institution or agency, including, without limitation:

     (a) A copy of the fingerprints that were submitted to the Central Repository and a copy of the written authorization that was provided by the employee;

     (b) Proof that the fingerprints of the employee were submitted to the Central Repository; and

     (c) Any other documentation of the information collected pursuant to sections 12 and 13 of this act.

     2.  The records maintained pursuant to subsection 1 must be:

     (a) Maintained for the period of the employee’s employment with his or her employing institution or agency; and

     (b) Made available for inspection by the Division of Child and Family Services at any reasonable time, and copies thereof must be furnished to the Division upon request.

     Sec. 15.  NRS 179A.075 is hereby amended to read as follows:

     179A.075  1.  The Central Repository for Nevada Records of Criminal History is hereby created within the Records and Technology Division of the Department.

     2.  Each agency of criminal justice and any other agency dealing with crime or delinquency of children shall:

     (a) Collect and maintain records, reports and compilations of statistical data required by the Department; and

 


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

ê2011 Statutes of Nevada, Page 3552 (Chapter 514, AB 536)ê

 

     (b) Submit the information collected to the Central Repository in the manner approved by the Director of the Department.

     3.  Each agency of criminal justice shall submit the information relating to records of criminal history that it creates or issues, and any information in its possession relating to the genetic markers of a biological specimen of a person who is convicted of an offense listed in subsection 4 of NRS 176.0913, to the Division. The information must be submitted to the Division:

     (a) Through an electronic network;

     (b) On a medium of magnetic storage; or

     (c) In the manner prescribed by the Director of the Department,

Ê within the period prescribed by the Director of the Department. If an agency has submitted a record regarding the arrest of a person who is later determined by the agency not to be the person who committed the particular crime, the agency shall, immediately upon making that determination, so notify the Division. The Division shall delete all references in the Central Repository relating to that particular arrest.

     4.  The Division shall, in the manner prescribed by the Director of the Department:

     (a) Collect, maintain and arrange all information submitted to it relating to:

           (1) Records of criminal history; and

           (2) The genetic markers of a biological specimen of a person who is convicted of an offense listed in subsection 4 of NRS 176.0913.

     (b) When practicable, use a record of the personal identifying information of a subject as the basis for any records maintained regarding him or her.

     (c) Upon request, provide the information that is contained in the Central Repository to the State Disaster Identification Team of the Division of Emergency Management of the Department.

     5.  The Division may:

     (a) Disseminate any information which is contained in the Central Repository to any other agency of criminal justice;

     (b) Enter into cooperative agreements with repositories of the United States and other states to facilitate exchanges of information that may be disseminated pursuant to paragraph (a); and

     (c) Request of and receive from the Federal Bureau of Investigation information on the background and personal history of any person whose record of fingerprints the Central Repository submits to the Federal Bureau of Investigation and:

           (1) Who has applied to any agency of the State of Nevada or any political subdivision thereof for a license which it has the power to grant or deny;

           (2) With whom any agency of the State of Nevada or any political subdivision thereof intends to enter into a relationship of employment or a contract for personal services;

           (3) Who has applied to any agency of the State of Nevada or any political subdivision thereof to attend an academy for training peace officers approved by the Peace Officers’ Standards and Training Commission;

           (4) For whom such information is required to be obtained pursuant to NRS 424.031, 427A.735 , 432A.170 and 449.179 [;] and sections 12 and 17 of this act; or

 


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

ê2011 Statutes of Nevada, Page 3553 (Chapter 514, AB 536)ê

 

           (5) About whom any agency of the State of Nevada or any political subdivision thereof is authorized by law to have accurate personal information for the protection of the agency or the persons within its jurisdiction.

Ê To request and receive information from the Federal Bureau of Investigation concerning a person pursuant to this subsection, the Central Repository must receive the person’s complete set of fingerprints from the agency or political subdivision and submit the fingerprints to the Federal Bureau of Investigation for its report.

     6.  The Central Repository shall:

     (a) Collect and maintain records, reports and compilations of statistical data submitted by any agency pursuant to subsection 2.

     (b) Tabulate and analyze all records, reports and compilations of statistical data received pursuant to this section.

     (c) Disseminate to federal agencies engaged in the collection of statistical data relating to crime information which is contained in the Central Repository.

     (d) Investigate the criminal history of any person who:

           (1) Has applied to the Superintendent of Public Instruction for a license;

           (2) Has applied to a county school district, charter school or private school for employment; or

           (3) Is employed by a county school district, charter school or private school,

Ê and notify the superintendent of each county school district, the governing body of each charter school and the Superintendent of Public Instruction, or the administrator of each private school, as appropriate, if the investigation of the Central Repository indicates that the person has been convicted of a violation of NRS 200.508, 201.230, 453.3385, 453.339 or 453.3395, or convicted of a felony or any offense involving moral turpitude.

     (e) Upon discovery, notify the superintendent of each county school district, the governing body of each charter school or the administrator of each private school, as appropriate, by providing the superintendent, governing body or administrator with a list of all persons:

           (1) Investigated pursuant to paragraph (d); or

           (2) Employed by a county school district, charter school or private school whose fingerprints were sent previously to the Central Repository for investigation,

Ê who the Central Repository’s records indicate have been convicted of a violation of NRS 200.508, 201.230, 453.3385, 453.339 or 453.3395, or convicted of a felony or any offense involving moral turpitude since the Central Repository’s initial investigation. The superintendent of each county school district, the governing body of a charter school or the administrator of each private school, as applicable, shall determine whether further investigation or action by the district, charter school or private school, as applicable, is appropriate.

     (f) Investigate the criminal history of each person who submits fingerprints or has fingerprints submitted pursuant to NRS 424.031, 427A.735, 432A.170, 449.176 or 449.179 [.] or sections 12 or 17 of this act.

 


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

ê2011 Statutes of Nevada, Page 3554 (Chapter 514, AB 536)ê

 

     (g) On or before July 1 of each year, prepare and present to the Governor a printed annual report containing the statistical data relating to crime received during the preceding calendar year. Additional reports may be presented to the Governor throughout the year regarding specific areas of crime if they are approved by the Director of the Department.

     (h) On or before July 1 of each year, prepare and submit to the Director of the Legislative Counsel Bureau for submission to the Legislature, or to the Legislative Commission when the Legislature is not in regular session, a report containing statistical data about domestic violence in this State.

     (i) Identify and review the collection and processing of statistical data relating to criminal justice and the delinquency of children by any agency identified in subsection 2 and make recommendations for any necessary changes in the manner of collecting and processing statistical data by any such agency.

     7.  The Central Repository may:

     (a) In the manner prescribed by the Director of the Department, disseminate compilations of statistical data and publish statistical reports relating to crime or the delinquency of children.

     (b) Charge a reasonable fee for any publication or special report it distributes relating to data collected pursuant to this section. The Central Repository may not collect such a fee from an agency of criminal justice, any other agency dealing with crime or the delinquency of children which is required to submit information pursuant to subsection 2 or the State Disaster Identification Team of the Division of Emergency Management of the Department. All money collected pursuant to this paragraph must be used to pay for the cost of operating the Central Repository.

     (c) In the manner prescribed by the Director of the Department, use electronic means to receive and disseminate information contained in the Central Repository that it is authorized to disseminate pursuant to the provisions of this chapter.

     8.  As used in this section:

     (a) “Personal identifying information” means any information designed, commonly used or capable of being used, alone or in conjunction with any other information, to identify a person, including, without limitation:

           (1) The name, driver’s license number, social security number, date of birth and photograph or computer-generated image of a person; and

           (2) The fingerprints, voiceprint, retina image and iris image of a person.

     (b) “Private school” has the meaning ascribed to it in NRS 394.103.

     Sec. 16.  Chapter 433B of NRS is hereby amended by adding thereto the provisions set forth as sections 17, 18 and 19 of this act.

     Sec. 17.  1.  A division facility which provides residential treatment to children shall secure from appropriate law enforcement agencies information on the background and personal history of an employee of the facility to determine whether the employee has been convicted of:

     (a) Murder, voluntary manslaughter or mayhem;

     (b) Any other felony involving the use of a firearm or other deadly weapon;

     (c) Assault with intent to kill or to commit sexual assault or mayhem;

     (d) Sexual assault, statutory sexual seduction, incest, lewdness, indecent exposure or any other sexually related crime;

     (e) Abuse or neglect of a child or contributory delinquency;

 


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

ê2011 Statutes of Nevada, Page 3555 (Chapter 514, AB 536)ê

 

     (f) A violation of any federal or state law regulating the possession, distribution or use of any controlled substance or any dangerous drug as defined in chapter 454 of NRS;

     (g) Abuse, neglect, exploitation or isolation of older persons or vulnerable persons, including, without limitation, a violation of any provision of NRS 200.5091 to 200.50995, inclusive, or a law of any other jurisdiction that prohibits the same or similar conduct; or

     (h) Any offense involving fraud, theft, embezzlement, burglary, robbery, fraudulent conversion or misappropriation of property within the immediately preceding 7 years.

     2.  An employee must submit to the Division two complete sets of fingerprints and written authorization to forward those fingerprints to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

     3.  The Division may exchange with the Central Repository or the Federal Bureau of Investigation any information concerning the fingerprints submitted.

     4.  The Division may charge an employee investigated pursuant to this section for the reasonable cost of that investigation.

     5.  An employee who is required to submit to an investigation required pursuant to this section shall not have contact with a child in a division facility without supervision before the investigation of the background and personal history of the employee has been conducted.

     6.  The division facility shall conduct an investigation of each employee pursuant to this section at least once every 5 years after the initial investigation.

     Sec. 18.  1.  Upon receiving information from the Central Repository for Nevada Records of Criminal History pursuant to section 17 of this act or evidence from any other source that an employee of a division facility that provides residential treatment for children has been convicted of a crime listed in section 17 of this act, the administrative officer shall terminate the employment of the employee after allowing the employee time to correct the information as required pursuant to subsection 2.

     2.  If an employee believes that the information provided to the division facility pursuant to subsection 1 is incorrect, the employee must inform the division facility immediately. A division facility that is so informed shall give the employee 30 days to correct the information.

     3.  During the period in which an employee seeks to correct information pursuant to subsection 2, it is within the discretion of the administrative officer whether to allow the employee to continue to work for the division facility, except that the employee shall not have contact with a child in the division facility without supervision during such period.

     Sec. 19.  1.  The Division shall maintain accurate records of the information concerning an employee of a division facility collected pursuant to sections 17 and 18 of this act for the period of the employee’s employment with a division facility, including, without limitation:

     (a) A copy of the fingerprints that were submitted to the Central Repository for Nevada Records of Criminal History and a copy of the written authorization that was provided by the employee;

     (b) Proof that the fingerprints of the employee were submitted to the Central Repository for submission to the Federal Bureau of Investigation for its report; and

 


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

ê2011 Statutes of Nevada, Page 3556 (Chapter 514, AB 536)ê

 

     (c) Any other documentation of the information collected pursuant to sections 17 and 18 of this act.

     2.  The records maintained pursuant to subsection 1 must be maintained for the period of the employee’s employment with the division facility.

     Sec. 20.  NRS 449.173 is hereby amended to read as follows:

     449.173  [The]

     1.  Except as otherwise provided in subsection 2, the provisions of NRS 449.176 to 449.188, inclusive, do not apply to any facility for the treatment of abuse of alcohol or drugs.

     2.  A facility for the treatment of abuse of alcohol or drugs must comply with the requirements of NRS 449.176 to 449.188, inclusive, if the facility for the treatment of abuse of alcohol or drugs provides residential services to children.

     Sec. 21.  NRS 449.176 is hereby amended to read as follows:

     449.176  1.  Each applicant for a license to operate a facility for intermediate care, facility for skilled nursing, residential facility for groups, agency to provide personal care services in the home or home for individual residential care or, if residential services are provided to children, a medical facility or facility for the treatment of abuse of alcohol or drugs shall submit to the Central Repository for Nevada Records of Criminal History two complete sets of fingerprints for submission to the Federal Bureau of Investigation for its report.

     2.  The Central Repository for Nevada Records of Criminal History shall determine whether the applicant has been convicted of a crime listed in paragraph (a) of subsection 1 of NRS 449.188 and immediately inform the administrator of the facility, agency or home, if any, and the Health Division of whether the applicant has been convicted of such a crime.

     3.  A person who holds a license to operate an agency, a facility or a home which provides residential services to children shall submit to the Central Repository for Nevada Records of Criminal History two complete sets of fingerprints for a report required by this section at least once every 5 years after the initial investigation.

     Sec. 22.  NRS 449.179 is hereby amended to read as follows:

     449.179  1.  Except as otherwise provided in subsection 2, within 10 days after hiring an employee or entering into a contract with an independent contractor, the administrator of, or the person licensed to operate, an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing, a residential facility for groups or a home for individual residential care or, if residential services are provided to children, a medical facility or a facility for the treatment of abuse of alcohol or drugs shall:

     (a) Obtain a written statement from the employee or independent contractor stating whether he or she has been convicted of any crime listed in NRS 449.188;

     (b) Obtain an oral and written confirmation of the information contained in the written statement obtained pursuant to paragraph (a);

     (c) Obtain from the employee or independent contractor two sets of fingerprints and a written authorization 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; and

 


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

ê2011 Statutes of Nevada, Page 3557 (Chapter 514, AB 536)ê

 

     (d) Submit to the Central Repository for Nevada Records of Criminal History the fingerprints obtained pursuant to paragraph (c) [.] to obtain information on the background and personal history of each employee or independent contractor to determine whether the person has been convicted of any crime listed in NRS 449.188.

     2.  The administrator of, or the person licensed to operate, an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing, a residential facility for groups or a home for individual residential care or, if residential services are provided to children, a medical facility or a facility for the treatment of abuse of alcohol or drugs is not required to obtain the information described in subsection 1 from an employee or independent contractor who provides proof that an investigation of his or her [criminal] background and personal history has been conducted by the Central Repository for Nevada Records of Criminal History within the immediately preceding 6 months and the investigation did not indicate that the employee or independent contractor had been convicted of any crime set forth in NRS 449.188.

     3.  The administrator of, or the person licensed to operate, an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing, a residential facility for groups or a home for individual residential care or, if residential services are provided to children, a medical facility or a facility for the treatment of abuse of alcohol or drugs shall ensure that the [criminal] information concerning the background and personal history of each employee or independent contractor who works at the agency or facility [is investigated at] :

     (a) Is completed as soon as practicable, and if residential services are provided to children, before the employee or independent contractor provides any care or services to a child in the agency, facility or home without supervision; and

     (b) At least once every 5 years [.] thereafter.

     4.  The administrator or person shall:

     (a) If the agency, facility or home does not have the fingerprints of the employee or independent contractor on file, obtain two sets of fingerprints from the employee or independent contractor;

     (b) Obtain written authorization from the employee or independent contractor to forward the fingerprints on file or obtained pursuant to paragraph (a) to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report; and

     (c) Submit the fingerprints to the Central Repository for Nevada Records of Criminal History.

     [4.] 5.  Upon receiving fingerprints submitted pursuant to this section, the Central Repository for Nevada Records of Criminal History shall determine whether the employee or independent contractor has been convicted of a crime listed in NRS 449.188 and immediately inform the Health Division and the administrator of, or the person licensed to operate, the agency, facility or home at which the person works whether the employee or independent contractor has been convicted of such a crime.

 


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

ê2011 Statutes of Nevada, Page 3558 (Chapter 514, AB 536)ê

 

     [5.] 6.  The Central Repository for Nevada Records of Criminal History may impose a fee upon an agency, a facility or a home that submits fingerprints pursuant to this section for the reasonable cost of the investigation. The agency, facility or home may recover from the employee or independent contractor not more than one-half of the fee imposed by the Central Repository. If the agency, facility or home requires the employee or independent contractor to pay for any part of the fee imposed by the Central Repository, it shall allow the employee or independent contractor to pay the amount through periodic payments.

     Sec. 23.  NRS 449.182 is hereby amended to read as follows:

     449.182  1.  Each agency to provide personal care services in the home, agency to provide nursing in the home, facility for intermediate care, facility for skilled nursing, residential facility for groups and home for individual residential care and, if residential services are provided to children, a medical facility and facility for the treatment of abuse of alcohol or drugs shall maintain [accurate] records of the information concerning its employees and independent contractors collected pursuant to NRS 449.179 [and shall maintain a] , including, without limitation:

     (a) A copy of the fingerprints that were submitted to the Central Repository for Nevada Records of Criminal History [and proof] and a copy of the written authorization that was provided by the employee;

     (b) Proof that [it submitted two sets of] the fingerprints of the employee were submitted to the Central Repository [for its report. These] ; and

     (c) Any other documentation of the information collected pursuant to NRS 449.179.

     2.  The records maintained pursuant to subsection 1 must be [made] :

     (a) Maintained for the period of the employee’s employment with the agency, facility or home; and

     (b) Made available for inspection by the Health Division at any reasonable time, and copies thereof must be furnished to the Health Division upon request.

     Sec. 24.  NRS 449.185 is hereby amended to read as follows:

     449.185  1.  Upon receiving information from the Central Repository for Nevada Records of Criminal History pursuant to NRS 449.179, or evidence from any other source, that an employee or independent contractor of an agency to provide personal care services in the home, an agency to provide nursing in the home, a facility for intermediate care, a facility for skilled nursing, a residential facility for groups or home for individual residential care or, if residential services are provided to children, a medical facility or facility for the treatment of abuse of alcohol or drugs has been convicted of a crime listed in paragraph (a) of subsection 1 of NRS 449.188, the administrator of, or the person licensed to operate, the agency, facility or home shall terminate the employment or contract of that person after allowing him or her time to correct the information as required pursuant to subsection 2.

     2.  If an employee or independent contractor believes that the information provided by the Central Repository is incorrect, the employee or independent contractor may immediately inform the agency, facility or home. An agency, facility or home that is so informed shall give the employee or independent contractor a reasonable amount of time of not less than 30 days to correct the information received from the Central Repository before terminating the employment or contract of the person pursuant to subsection 1.

 


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

ê2011 Statutes of Nevada, Page 3559 (Chapter 514, AB 536)ê

 

than 30 days to correct the information received from the Central Repository before terminating the employment or contract of the person pursuant to subsection 1.

     3.  An agency, facility or home that has complied with NRS 449.179 may not be held civilly or criminally liable based solely upon the ground that the agency, facility or home allowed an employee or independent contractor to work:

     (a) Before it received the information concerning the employee or independent contractor from the Central Repository [;] , except that an employee or independent contractor shall not have contact with a child without supervision before such information is received;

     (b) During [any] the period required pursuant to subsection 2 to allow the employee or independent contractor to correct that information [;] , except that an employee or independent contractor shall not have contact with a child without supervision during such period;

     (c) Based on the information received from the Central Repository, if the information received from the Central Repository was inaccurate; or

     (d) Any combination thereof.

Ê An agency, facility or home may be held liable for any other conduct determined to be negligent or unlawful.

     Sec. 25.  A person who is required to submit to an investigation of his or her background and personal history pursuant to NRS 424.031, as amended by section 4 of this act, NRS 432A.170, as amended by section 8 of this act, NRS 449.176, as amended by section 21 of this act or NRS 449.179, as amended by section 22 of this act or section 12 or 17 of this act shall submit the documentation and fingerprints required to conduct such an investigation in accordance with the amendatory provisions of this act on or before October 1, 2011, and may have contact with a child without supervision pending the results of the investigation.

     Sec. 26.  This act becomes effective upon passage and approval for the purpose of conducting investigations pursuant to section 25 of this act and on October 1, 2011, for all other purposes.

________

 


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

ê2011 Statutes of Nevada, Page 3560ê

 

CHAPTER 515, AB 571

Assembly Bill No. 571–Committee on Ways and Means

 

CHAPTER 515

 

[Approved: June 17, 2011]

 

AN ACT relating to smoking; revising the definition of “stand-alone bar, tavern or saloon” as used in provisions regulating smoking tobacco; revising provisions governing the areas in which smoking is not prohibited; revising, removing and reenacting certain provisions of the Nevada Clean Indoor Air Act; providing civil and criminal penalties; making an appropriation; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       The Nevada Clean Indoor Air Act, which is currently codified as NRS 202.2483, was proposed by an initiative petition and approved by the voters at the 2006 General Election. The Act generally prohibits smoking tobacco within indoor places of employment, within school buildings and on school property but allows smoking tobacco in certain areas or establishments, including: (1) stand-alone bars, taverns and saloons; and (2) in certain circumstances, the area of a convention facility in which a meeting or trade show is being held. (NRS 202.2483)

       Section 1 of this bill revises provisions governing the areas in which smoking is allowed. Section 1 extends the provisions allowing smoking tobacco to: (1) age-restricted stand-alone bars, taverns and saloons; and (2) completely enclosed areas within other stand-alone bars, taverns and saloons in which patrons under 21 years of age are prohibited from entering. Section 1 also revises the definition of “stand-alone bar, tavern or saloon” to provide that food service or sales in the bar, tavern or saloon may or may not be incidental services or sales, as determined by the operator. Under section 1, if a supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon permits a person under 21 years of age to loiter in an area in which smoking is prohibited: (1) the supervisor or employee is guilty of a misdemeanor; and (2) the age-restricted stand-alone bar, tavern or saloon or stand-alone bar, tavern or saloon is liable for a civil penalty. Section 1 also removes the provisions which allow smoking in certain circumstances in the area of a convention facility in which a meeting or trade show is being held.

       Section 2 of this bill reenacts the provisions which allow smoking in certain circumstances in the area of a convention facility in which a meeting or trade show is being held.

       Section 3 of this bill makes an appropriation of $15,000 from the State General Fund to the Interim Finance Committee to contract, through competitive bidding, with a qualified independent consultant to conduct a study regarding the implementation of the Nevada Clean Indoor Air Act.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  NRS 202.2483 is hereby amended to read as follows:

     202.2483  1.  Except as otherwise provided in subsection 3, smoking tobacco in any form is prohibited within indoor places of employment including, but not limited to, the following:

     (a) Child care facilities;

     (b) Movie theatres;

 


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

ê2011 Statutes of Nevada, Page 3561 (Chapter 515, AB 571)ê

 

     (c) Video arcades;

     (d) Government buildings and public places;

     (e) Malls and retail establishments;

     (f) All areas of grocery stores; and

     (g) All indoor areas within restaurants.

     2.  Without exception, smoking tobacco in any form is prohibited within school buildings and on school property.

     3.  Smoking tobacco is not prohibited in:

     (a) Areas within casinos where loitering by minors is already prohibited by state law pursuant to NRS 463.350;

     (b) [Stand-alone] Completely enclosed areas within stand-alone bars, taverns and saloons [;] in which patrons under 21 years of age are prohibited from entering;

     (c) Age-restricted stand-alone bars, taverns and saloons;

     [(c)] (d) Strip clubs or brothels;

     [(d)] (e) Retail tobacco stores; and

     [(e)] (f) Private residences, including private residences which may serve as an office workplace, except if used as a child care, an adult day care or a health care facility . [; and

     (f) The area of a convention facility in which a meeting or trade show is being held, during the time the meeting or trade show is occurring, if the meeting or trade show:

           (1) Is not open to the public;

           (2) Is being produced or organized by a business relating to tobacco or a professional association for convenience stores; and

           (3) Involves the display of tobacco products.]

     4.  A supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon shall not allow a person who is under 21 years of age to loiter in an age-restricted stand-alone bar, tavern or saloon or an area of a stand-alone bar, tavern or saloon where smoking is allowed pursuant to this section. A person who violates the provisions of this subsection is guilty of a misdemeanor.

     5.  If a supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon violates the provisions of subsection 4, the age-restricted stand-alone bar, tavern or saloon or stand-alone bar, tavern or saloon is liable for a civil penalty of:

     (a) For the first offense, $1,000.

     (b) For a second or subsequent offense, $2,000.

     6.  In any prosecution or other proceeding for a violation of the provisions of subsection 4 or 5, it is no excuse for a supervisor, employee, age-restricted bar, tavern or saloon, or stand-alone bar, tavern or saloon alleged to have committed the violation to plead that a supervisor or employee believed that the person who was permitted to loiter was 21 years of age or older.

     7.  In areas or establishments where smoking is not prohibited by this section, nothing in state law shall be construed to prohibit the owners of said establishments from voluntarily creating nonsmoking sections or designating the entire establishment as smoke free.

     [5.] 8.  Nothing in state law shall be construed to restrict local control or otherwise prohibit a county, city or town from adopting and enforcing local tobacco control measures that meet or exceed the minimum applicable standards set forth in this section.

 


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

ê2011 Statutes of Nevada, Page 3562 (Chapter 515, AB 571)ê

 

     [6.] 9.  “No Smoking” signs or the international “No Smoking” symbol shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this section. Each public place and place of employment where smoking is prohibited shall post, at every entrance, a conspicuous sign clearly stating that smoking is prohibited. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited.

     [7.] 10.  Health authorities, police officers of cities or towns, sheriffs and their deputies shall, within their respective jurisdictions, enforce the provisions of this section and shall issue citations for violations of this section pursuant to NRS 202.2492 and 202.24925.

     [8.] 11.  No person or employer shall retaliate against an employee, applicant or customer for exercising any rights afforded by, or attempts to prosecute a violation of, this section.

     [9.] 12.  For the purposes of this section, the following terms have the following definitions:

     (a) “Age-restricted stand-alone bar, tavern or saloon” means an establishment:

           (1) Devoted primarily to the sale of alcoholic beverages to be consumed on the premises;

           (2) In which food service or sales may or may not be incidental food service or sales, in the discretion of the operator of the establishment;

           (3) In which patrons under 21 years of age are prohibited at all times from entering the premises; and

           (4) That must be located within:

                (I) A physically independent building that does not share a common entryway or indoor area with a restaurant, public place or any other indoor workplace where smoking is prohibited by this section; or

                (II) A completely enclosed area of a larger structure, which may include, without limitation, a strip mall or an airport, provided that indoor windows must remain closed at all times and doors must remain closed when not actively in use.

     (b) “Casino” means an entity that contains a building or large room devoted to gambling games or wagering on a variety of events. A casino must possess a nonrestricted gaming license as described in NRS 463.0177 and typically uses the word ‘casino’ as part of its proper name.

     [(b)] (c) “Child care facility” has the meaning ascribed to it in NRS 432A.024.

     [(c)] (d) “Completely enclosed area” means an area that is enclosed on all sides by any combination of solid walls, windows or doors that extend from the floor to the ceiling.

     [(d)] (e) “Government building” means any building or office space owned or occupied by:

           (1) Any component of the Nevada System of Higher Education and used for any purpose related to the System;

           (2) The State of Nevada and used for any public purpose; or

           (3) Any county, city, school district or other political subdivision of the State and used for any public purpose.

     [(e)] (f) “Health authority” has the meaning ascribed to it in NRS 202.2485.

     [(f)] (g) “Incidental food service or sales” means the service of prepackaged food items including, but not limited to, peanuts, popcorn, chips, pretzels or any other incidental food items that are exempt from food licensing requirements pursuant to subsection 2 of NRS 446.870.

 


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

ê2011 Statutes of Nevada, Page 3563 (Chapter 515, AB 571)ê

 

chips, pretzels or any other incidental food items that are exempt from food licensing requirements pursuant to subsection 2 of NRS 446.870.

     [(g)] (h) “Place of employment” means any enclosed area under the control of a public or private employer which employees frequent during the course of employment including, but not limited to, work areas, restrooms, hallways, employee lounges, cafeterias, conference and meeting rooms, lobbies and reception areas.

     [(h)] (i) “Public places” means any enclosed areas to which the public is invited or in which the public is permitted.

     [(i)] (j) “Restaurant” means a business which gives or offers for sale food, with or without alcoholic beverages, to the public, guests or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere.

     [(j)] (k) “Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

     [(k)] (l) “School building” means all buildings on the grounds of any public school described in NRS 388.020 and any private school as defined in NRS 394.103.

     [(l)] (m) “School property” means the grounds of any public school described in NRS 388.020 and any private school as defined in NRS 394.103.

     [(m)] (n) “Stand-alone bar, tavern or saloon” means an establishment [devoted] :

           (1) Devoted primarily to the sale of alcoholic beverages to be consumed on the premises [, in] ;

           (2) In which food service [is] or sales may or may not be incidental [to its operation, and provided that] food service or sales, in the discretion of the operator of the establishment;

           (3) In which smoke from such establishments does not infiltrate into areas where smoking is prohibited under the provisions of this section [. In addition, a stand-alone bar, tavern or saloon] ; and

           (4) That must be housed in either:

           [(1)] (I) A physically independent building that does not share a common entryway or indoor area with a restaurant, public place or any other indoor workplaces where smoking is prohibited by this section; or

           [(2)] (II) A completely enclosed area of a larger structure, such as a strip mall or an airport, provided that indoor windows must remain shut at all times and doors must remain closed when not actively in use.

     [(n)] (o) “Video arcade” has the meaning ascribed to it in paragraph (d) of subsection 3 of NRS 453.3345.

     [10.] 13.  Any statute or regulation inconsistent with this section is null and void.

     [11.] 14.  The provisions of this section are severable. If any provision of this section or the application thereof is declared by a court of competent jurisdiction to be invalid or unconstitutional, such declaration shall not affect the validity of the section as a whole or any provision thereof other than the part declared to be invalid or unconstitutional.

     Sec. 2.  NRS 202.2483 is hereby amended to read as follows:

     202.2483  1.  Except as otherwise provided in subsection 3, smoking tobacco in any form is prohibited within indoor places of employment including, but not limited to, the following:

 


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

ê2011 Statutes of Nevada, Page 3564 (Chapter 515, AB 571)ê

 

     (a) Child care facilities;

     (b) Movie theatres;

     (c) Video arcades;

     (d) Government buildings and public places;

     (e) Malls and retail establishments;

     (f) All areas of grocery stores; and

     (g) All indoor areas within restaurants.

     2.  Without exception, smoking tobacco in any form is prohibited within school buildings and on school property.

     3.  Smoking tobacco is not prohibited in:

     (a) Areas within casinos where loitering by minors is already prohibited by state law pursuant to NRS 463.350;

     (b) Completely enclosed areas within stand-alone bars, taverns and saloons in which patrons under 21 years of age are prohibited from entering;

     (c) Age-restricted stand-alone bars, taverns and saloons;

     (d) Strip clubs or brothels;

     (e) Retail tobacco stores; [and]

     (f) The area of a convention facility in which a meeting or trade show is being held, during the time the meeting or trade show is occurring, if the meeting or trade show:

           (1) Is not open to the public;

           (2) Is being produced or organized by a business relating to tobacco or a professional association for convenience stores; and

           (3) Involves the display of tobacco products; and

     (g) Private residences, including private residences which may serve as an office workplace, except if used as a child care, an adult day care or a health care facility.

     4.  A supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon shall not allow a person who is under 21 years of age to loiter in an age-restricted stand-alone bar, tavern or saloon or an area of a stand-alone bar, tavern or saloon where smoking is allowed pursuant to this section. A person who violates a provision of this section is guilty of a misdemeanor.

     5.  If a supervisor on duty or employee of an age-restricted stand-alone bar, tavern or saloon or a stand-alone bar, tavern or saloon violates the provisions of subsection 4, the age-restricted stand-alone bar, tavern or saloon or stand-alone bar, tavern or saloon is liable for a civil penalty of:

     (a) For the first offense, $1,000.

     (b) For a second or subsequent offense, $2,000.

     6.  In any prosecution or other proceeding for a violation of the provisions of subsection 4 or 5, it is no excuse for a supervisor, employee, age-restricted bar, tavern or saloon, or stand-alone bar, tavern or saloon alleged to have committed the violation to plead that a supervisor or employee believed that the person who was permitted to loiter was 21 years of age or older.

     7.  In areas or establishments where smoking is not prohibited by this section, nothing in state law shall be construed to prohibit the owners of said establishments from voluntarily creating nonsmoking sections or designating the entire establishment as smoke free.

 


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

ê2011 Statutes of Nevada, Page 3565 (Chapter 515, AB 571)ê

 

     8.  Nothing in state law shall be construed to restrict local control or otherwise prohibit a county, city or town from adopting and enforcing local tobacco control measures that meet or exceed the minimum applicable standards set forth in this section.

     9.  “No Smoking” signs or the international “No Smoking” symbol shall be clearly and conspicuously posted in every public place and place of employment where smoking is prohibited by this section. Each public place and place of employment where smoking is prohibited shall post, at every entrance, a conspicuous sign clearly stating that smoking is prohibited. All ashtrays and other smoking paraphernalia shall be removed from any area where smoking is prohibited.

     10.  Health authorities, police officers of cities or towns, sheriffs and their deputies shall, within their respective jurisdictions, enforce the provisions of this section and shall issue citations for violations of this section pursuant to NRS 202.2492 and 202.24925.

     11.  No person or employer shall retaliate against an employee, applicant or customer for exercising any rights afforded by, or attempts to prosecute a violation of, this section.

     12.  For the purposes of this section, the following terms have the following definitions:

     (a) “Age-restricted stand-alone bar, tavern or saloon” means an establishment:

           (1) Devoted primarily to the sale of alcoholic beverages to be consumed on the premises;

           (2) In which food service or sales may or may not be incidental food service or sales, in the discretion of the operator of the establishment;

           (3) In which patrons under 21 years of age are prohibited at all times from entering the premises; and

           (4) That must be located within:

                (I) A physically independent building that does not share a common entryway or indoor area with a restaurant, public place or any other indoor workplace where smoking is prohibited by this section; or

                (II) A completely enclosed area of a larger structure, which may include, without limitation, a strip mall or an airport, provided that indoor windows must remain closed at all times and doors must remain closed when not actively in use.

     (b) “Casino” means an entity that contains a building or large room devoted to gambling games or wagering on a variety of events. A casino must possess a nonrestricted gaming license as described in NRS 463.0177 and typically uses the word ‘casino’ as part of its proper name.

     (c) “Child care facility” has the meaning ascribed to it in NRS 432A.024.

     (d) “Completely enclosed area” means an area that is enclosed on all sides by any combination of solid walls, windows or doors that extend from the floor to the ceiling.

     (e) “Government building” means any building or office space owned or occupied by:

           (1) Any component of the Nevada System of Higher Education and used for any purpose related to the System;

           (2) The State of Nevada and used for any public purpose; or

           (3) Any county, city, school district or other political subdivision of the State and used for any public purpose.

 


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

ê2011 Statutes of Nevada, Page 3566 (Chapter 515, AB 571)ê

 

     (f) “Health authority” has the meaning ascribed to it in NRS 202.2485.

     (g) “Incidental food service or sales” means the service of prepackaged food items including, but not limited to, peanuts, popcorn, chips, pretzels or any other incidental food items that are exempt from food licensing requirements pursuant to subsection 2 of NRS 446.870.

     (h) “Place of employment” means any enclosed area under the control of a public or private employer which employees frequent during the course of employment including, but not limited to, work areas, restrooms, hallways, employee lounges, cafeterias, conference and meeting rooms, lobbies and reception areas.

     (i) “Public places” means any enclosed areas to which the public is invited or in which the public is permitted.

     (j) “Restaurant” means a business which gives or offers for sale food, with or without alcoholic beverages, to the public, guests or employees, as well as kitchens and catering facilities in which food is prepared on the premises for serving elsewhere.

     (k) “Retail tobacco store” means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is merely incidental.

     (l) “School building” means all buildings on the grounds of any public school described in NRS 388.020 and any private school as defined in NRS 394.103.

     (m) “School property” means the grounds of any public school described in NRS 388.020 and any private school as defined in NRS 394.103.

     (n) “Stand-alone bar, tavern or saloon” means an establishment:

           (1) Devoted primarily to the sale of alcoholic beverages to be consumed on the premises;

           (2) In which food service or sales may or may not be incidental food service or sales, in the discretion of the operator of the establishment;

           (3) In which smoke from such establishments does not infiltrate into areas where smoking is prohibited under the provisions of this section; and

           (4) That must be housed in either:

                (I) A physically independent building that does not share a common entryway or indoor area with a restaurant, public place or any other indoor workplaces where smoking is prohibited by this section; or

                (II) A completely enclosed area of a larger structure, such as a strip mall or an airport, provided that indoor windows must remain shut at all times and doors must remain closed when not actively in use.

     (o) “Video arcade” has the meaning ascribed to it in paragraph (d) of subsection 3 of NRS 453.3345.

     13.  Any statute or regulation inconsistent with this section is null and void.

     14.  The provisions of this section are severable. If any provision of this section or the application thereof is declared by a court of competent jurisdiction to be invalid or unconstitutional, such declaration shall not affect the validity of the section as a whole or any provision thereof other than the part declared to be invalid or unconstitutional.

     Sec. 3.  1.  There is hereby appropriated from the State General Fund to the Interim Finance Committee the sum of $15,000 to contract, through competitive bidding, with a qualified independent consultant to conduct a study regarding the implementation of the Nevada Clean Indoor Air Act, NRS 202.2483.

 


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

ê2011 Statutes of Nevada, Page 3567 (Chapter 515, AB 571)ê

 

     2.  Any remaining balance of the appropriation made by subsection 1 must not be committed for expenditure after June 30, 2013, by the entity to which the appropriation is made or any entity to which money from the appropriation is granted or otherwise transferred in any manner, and any portion of the appropriated money remaining must not be spent for any purpose after September 20, 2013, by either the entity to which the money was appropriated or the entity to which the money was subsequently granted or transferred, and must be reverted to the State General Fund on or before September 20, 2013.

     Sec. 4.  1.  This section and sections 1 and 3 of this act become effective upon passage and approval.

     2.  Section 2 of this act becomes effective one minute after passage and approval of this act.

________

CHAPTER 516, SB 348

Senate Bill No. 348–Senators Roberson; Cegavske, Gustavson, Halseth, McGinness and Settelmeyer

 

CHAPTER 516

 

[Approved: June 17, 2011]

 

AN ACT relating to property; eliminating limits on the amounts of certain property that is exempt from execution; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law exempts from execution all money, benefits, privileges or immunities arising out of a policy of life insurance if the annual premium paid for the policy does not exceed $15,000 and exempts a portion of those insurance proceeds if the premium does exceed $15,000. (NRS 21.090) Section 1 of this bill eliminates the $15,000 premium limit, allowing for a complete exemption from the execution of all money, benefits, privileges or immunities arising from a policy of life insurance.

       Existing law exempts from execution any annuity benefits presently due and payable to an annuitant on a scheduled or periodic basis up to a total of $350 per month but allows a court to order certain just and proper payments from annuity benefits if those benefits exceed $350 per month. (NRS 687B.290) Section 2 of this bill eliminates the $350 monthly benefit exemption limit, allowing for a complete exemption from the execution of annuity benefits.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  NRS 21.090 is hereby amended to read as follows:

     21.090  1.  The following property is exempt from execution, except as otherwise specifically provided in this section or required by federal law:

     (a) Private libraries, works of art, musical instruments and jewelry not to exceed $5,000 in value, belonging to the judgment debtor or a dependent of the judgment debtor, to be selected by the judgment debtor, and all family pictures and keepsakes.

 


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

ê2011 Statutes of Nevada, Page 3568 (Chapter 516, SB 348)ê

 

     (b) Necessary household goods, furnishings, electronics, wearing apparel, other personal effects and yard equipment, not to exceed $12,000 in value, belonging to the judgment debtor or a dependent of the judgment debtor, to be selected by the judgment debtor.

     (c) Farm trucks, farm stock, farm tools, farm equipment, supplies and seed not to exceed $4,500 in value, belonging to the judgment debtor to be selected by the judgment debtor.

     (d) Professional libraries, equipment, supplies, and the tools, inventory, instruments and materials used to carry on the trade or business of the judgment debtor for the support of the judgment debtor and his or her family not to exceed $10,000 in value.

     (e) The cabin or dwelling of a miner or prospector, the miner’s or prospector’s cars, implements and appliances necessary for carrying on any mining operations and the mining claim actually worked by the miner or prospector, not exceeding $4,500 in total value.

     (f) Except as otherwise provided in paragraph (p), one vehicle if the judgment debtor’s equity does not exceed $15,000 or the creditor is paid an amount equal to any excess above that equity.

     (g) For any workweek, 75 percent of the disposable earnings of a judgment debtor during that week, or 50 times the minimum hourly wage prescribed by section 6(a)(1) of the federal Fair Labor Standards Act of 1938, 29 U.S.C. § 206(a)(1), and in effect at the time the earnings are payable, whichever is greater. Except as otherwise provided in paragraphs (o), (s) and (t), the exemption provided in this paragraph does not apply in the case of any order of a court of competent jurisdiction for the support of any person, any order of a court of bankruptcy or of any debt due for any state or federal tax. As used in this paragraph:

           (1) “Disposable earnings” means that part of the earnings of a judgment debtor remaining after the deduction from those earnings of any amounts required by law to be withheld.

           (2) “Earnings” means compensation paid or payable for personal services performed by a judgment debtor in the regular course of business, including, without limitation, compensation designated as income, wages, tips, a salary, a commission or a bonus. The term includes compensation received by a judgment debtor that is in the possession of the judgment debtor, compensation held in accounts maintained in a bank or any other financial institution or, in the case of a receivable, compensation that is due the judgment debtor.

     (h) All fire engines, hooks and ladders, with the carts, trucks and carriages, hose, buckets, implements and apparatus thereunto appertaining, and all furniture and uniforms of any fire company or department organized under the laws of this State.

     (i) All arms, uniforms and accouterments required by law to be kept by any person, and also one gun, to be selected by the debtor.

     (j) All courthouses, jails, public offices and buildings, lots, grounds and personal property, the fixtures, furniture, books, papers and appurtenances belonging and pertaining to the courthouse, jail and public offices belonging to any county of this State, all cemeteries, public squares, parks and places, public buildings, town halls, markets, buildings for the use of fire departments and military organizations, and the lots and grounds thereto belonging and appertaining, owned or held by any town or incorporated city, or dedicated by the town or city to health, ornament or public use, or for the use of any fire or military company organized under the laws of this State and all lots, buildings and other school property owned by a school district and devoted to public school purposes.

 


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

ê2011 Statutes of Nevada, Page 3569 (Chapter 516, SB 348)ê

 

use of any fire or military company organized under the laws of this State and all lots, buildings and other school property owned by a school district and devoted to public school purposes.

     (k) All money, benefits, privileges or immunities accruing or in any manner growing out of any life insurance . [, if the annual premium paid does not exceed $15,000. If the premium exceeds that amount, a similar exemption exists which bears the same proportion to the money, benefits, privileges and immunities so accruing or growing out of the insurance that the $15,000 bears to the whole annual premium paid.]

     (l) The homestead as provided for by law, including a homestead for which allodial title has been established and not relinquished and for which a waiver executed pursuant to NRS 115.010 is not applicable.

     (m) The dwelling of the judgment debtor occupied as a home for himself or herself and family, where the amount of equity held by the judgment debtor in the home does not exceed $550,000 in value and the dwelling is situated upon lands not owned by the judgment debtor.

     (n) All money reasonably deposited with a landlord by the judgment debtor to secure an agreement to rent or lease a dwelling that is used by the judgment debtor as his or her primary residence, except that such money is not exempt with respect to a landlord or the landlord’s successor in interest who seeks to enforce the terms of the agreement to rent or lease the dwelling.

     (o) All property in this State of the judgment debtor where the judgment is in favor of any state for failure to pay that state’s income tax on benefits received from a pension or other retirement plan.

     (p) Any vehicle owned by the judgment debtor for use by the judgment debtor or the judgment debtor’s dependent that is equipped or modified to provide mobility for a person with a permanent disability.

     (q) Any prosthesis or equipment prescribed by a physician or dentist for the judgment debtor or a dependent of the debtor.

     (r) Money, not to exceed $500,000 in present value, held in:

           (1) An individual retirement arrangement which conforms with the applicable limitations and requirements of section 408 or 408A of the Internal Revenue Code, 26 U.S.C. §§ 408 and 408A;

           (2) A written simplified employee pension plan which conforms with the applicable limitations and requirements of section 408 of the Internal Revenue Code, 26 U.S.C. § 408;

           (3) A cash or deferred arrangement which is a qualified plan pursuant to the Internal Revenue Code;

           (4) A trust forming part of a stock bonus, pension or profit-sharing plan which is a qualified plan pursuant to sections 401 et seq. of the Internal Revenue Code, 26 U.S.C. §§ 401 et seq.; and

           (5) A trust forming part of a qualified tuition program pursuant to chapter 353B of NRS, any applicable regulations adopted pursuant to chapter 353B of NRS and section 529 of the Internal Revenue Code, 26 U.S.C. § 529, unless the money is deposited after the entry of a judgment against the purchaser or account owner or the money will not be used by any beneficiary to attend a college or university.

     (s) All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support, education and maintenance of a child, whether collected by the judgment debtor or the State.

     (t) All money and other benefits paid pursuant to the order of a court of competent jurisdiction for the support and maintenance of a former spouse, including the amount of any arrearages in the payment of such support and maintenance to which the former spouse may be entitled.

 


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

ê2011 Statutes of Nevada, Page 3570 (Chapter 516, SB 348)ê

 

including the amount of any arrearages in the payment of such support and maintenance to which the former spouse may be entitled.

     (u) Payments, in an amount not to exceed $16,150, received as compensation for personal injury, not including compensation for pain and suffering or actual pecuniary loss, by the judgment debtor or by a person upon whom the judgment debtor is dependent at the time the payment is received.

     (v) Payments received as compensation for the wrongful death of a person upon whom the judgment debtor was dependent at the time of the wrongful death, to the extent reasonably necessary for the support of the judgment debtor and any dependent of the judgment debtor.

     (w) Payments received as compensation for the loss of future earnings of the judgment debtor or of a person upon whom the judgment debtor is dependent at the time the payment is received, to the extent reasonably necessary for the support of the judgment debtor and any dependent of the judgment debtor.

     (x) Payments received as restitution for a criminal act.

     (y) Payments received pursuant to the federal Social Security Act, including, without limitation, retirement and survivors’ benefits, supplemental security income benefits and disability insurance benefits.

     (z) Any personal property not otherwise exempt from execution pursuant to this subsection belonging to the judgment debtor, including, without limitation, the judgment debtor’s equity in any property, money, stocks, bonds or other funds on deposit with a financial institution, not to exceed $1,000 in total value, to be selected by the judgment debtor.

     (aa) Any tax refund received by the judgment debtor that is derived from the earned income credit described in section 32 of the Internal Revenue Code, 26 U.S.C. § 32, or a similar credit provided pursuant to a state law.

     (bb) Stock of a corporation described in subsection 2 of NRS 78.746 except as set forth in that section.

     (cc) Regardless of whether a trust contains a spendthrift provision:

           (1) A beneficial interest in the trust as defined in NRS 163.4145 if the interest has not been distributed;

           (2) A remainder interest in the trust as defined in NRS 163.416 if the trust does not indicate that the remainder interest is certain to be distributed within 1 year after the date on which the instrument that creates the remainder interest becomes irrevocable;

           (3) A discretionary interest in the trust as described in NRS 163.4185 if the interest has not been distributed;

           (4) A power of appointment in the trust as defined in NRS 163.4157 regardless of whether the power has been distributed or transferred;

           (5) A power listed in NRS 163.5553 that is held by a trust protector as defined in NRS 163.5547 or any other person regardless of whether the power has been distributed or transferred;

           (6) A reserved power in the trust as defined in NRS 163.4165 regardless of whether the power has been distributed or transferred; and

           (7) Any other property of the trust that has not been distributed from the trust. Once the property is distributed from the trust, the property is subject to execution.

     (dd) If a trust contains a spendthrift provision:

           (1) A mandatory interest in the trust as described in NRS 163.4185 if the interest has not been distributed;

 


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

ê2011 Statutes of Nevada, Page 3571 (Chapter 516, SB 348)ê

 

           (2) Notwithstanding a beneficiary’s right to enforce a support interest, a support interest in the trust as described in NRS 163.4185 if the interest has not been distributed; and

           (3) Any other property of the trust that has not been distributed from the trust. Once the property is distributed from the trust, the property is subject to execution.

     2.  Except as otherwise provided in NRS 115.010, no article or species of property mentioned in this section is exempt from execution issued upon a judgment to recover for its price, or upon a judgment of foreclosure of a mortgage or other lien thereon.

     3.  Any exemptions specified in subsection (d) of section 522 of the Bankruptcy Act of 1978, 11 U.S.C. § 522(d), do not apply to property owned by a resident of this State unless conferred also by subsection 1, as limited by subsection 2.

     Sec. 2.  NRS 687B.290 is hereby amended to read as follows:

     687B.290  1.  The benefits, rights, privileges and options which under any annuity contract issued prior to or after January 1, 1972, are due or prospectively due the annuitant shall not be subject to execution nor shall the annuitant be compelled to exercise any such rights, powers or options, nor shall creditors be allowed to interfere with or terminate the contract, except [:

     (a) As] as to amounts paid for or as premium on any such annuity with intent to defraud creditors, with interest thereon, and of which the creditor has given the insurer written notice at its home office prior to the making of the payment to the annuitant out of which the creditor seeks to recover. Any such notice shall specify the amount claimed or such facts as will enable the insurer to ascertain such amount, and shall set forth such facts as will enable the insurer to ascertain the annuity contract, the annuitant and the payment sought to be avoided on the ground of fraud.

     [(b) The total exemption of benefits presently due and payable to any annuitant periodically or at stated times under all annuity contracts under which he or she is an annuitant shall not at any time exceed $350 per month for the length of time represented by such installments, and such periodic payments in excess of $350 per month shall be subject to garnishee execution to the same extent as are wages and salaries.

     (c) If the total benefits presently due and payable to any annuitant under all annuity contracts under which he or she is an annuitant, at any time exceed payment at the rate of $350 per month, then the court may order such annuitant to pay to a judgment creditor or apply on the judgment, in installments, such portion of such excess benefits as to the court may appear just and proper, after due regard for the reasonable requirements of the judgment debtor and the family of the judgment debtor, if dependent upon the judgment debtor, as well as any payments required to be made by the annuitant to other creditors under prior court orders.]

     2.  If the contract so provides, the benefits, rights, privileges or options accruing under such contract to a beneficiary or assignee shall not be transferable or subject to commutation, and [if the benefits are payable periodically or at stated times,] the same exemptions and exceptions contained in this section for the annuitant shall apply with respect to such beneficiary or assignee.

________

 


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

ê2011 Statutes of Nevada, Page 3572ê

 

CHAPTER 517, SB 40

Senate Bill No. 40–Committee on Government Affairs

 

CHAPTER 517

 

[Approved: June 17, 2011]

 

AN ACT relating to real property; requiring certain state agencies and officials to consult with the deputy manager for compliance and code enforcement before adopting regulations concerning the construction, maintenance, operation or safety of buildings and structures; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law requires the State Public Works Board to appoint a deputy manager for compliance and code enforcement, who serves as the building official for all buildings and structures on property of the State or held in trust for any division of the State Government. (NRS 341.100) Existing law also authorizes or, in some cases, requires certain state agencies and officials to adopt regulations concerning the construction, maintenance, operation or safety of certain buildings or structures. (NRS 446.940, 449.250-449.430, 455C.110, 461.170, 472.040, 477.030) Specifically, these agencies and officials include the State Board of Health, the Department of Health and Human Services, the Division of Industrial Relations of the Department of Business and Industry, the Manufactured Housing Division of the Department of Business and Industry, the State Forester Firewarden and the State Fire Marshal. Sections 4-11 of this bill require these state agencies and officials to consult with the deputy manager for compliance and code enforcement before adopting regulations concerning the construction, maintenance, operation or safety of buildings or structures in the State. Section 2 of this bill requires the deputy manager to consult with such an agency or official and to provide recommendations regarding how the agency or official’s regulation, as it applies to buildings and structures on property of this State or held in trust for any division of the State Government, may be made consistent with other regulations which apply to such buildings or structures.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  (Deleted by amendment.)

     Sec. 2.  NRS 341.100 is hereby amended to read as follows:

     341.100  1.  The Board shall appoint a Manager and a deputy manager for compliance and code enforcement, each of whom must be approved by the Governor. The Manager and the deputy manager for compliance and code enforcement serve at the pleasure of the Board and the Governor.

     2.  The Manager, with the approval of the Board, shall appoint:

     (a) A deputy manager for professional services; and

     (b) A deputy manager for administrative, fiscal and constructional services.

Ê Each deputy manager appointed pursuant to this subsection serves at the pleasure of the Manager.

     3.  The Manager may appoint such other technical and clerical assistants as may be necessary to carry into effect the provisions of this chapter.

 


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

ê2011 Statutes of Nevada, Page 3573 (Chapter 517, SB 40)ê

 

     4.  The Manager and each deputy manager are in the unclassified service of the State. Except as otherwise provided in NRS 284.143, the Manager and each deputy manager shall devote his or her entire time and attention to the business of the office and shall not pursue any other business or occupation or hold any other office of profit.

     5.  The Manager and the deputy manager for professional services must each be a licensed professional engineer pursuant to the provisions of chapter 625 of NRS or an architect registered pursuant to the provisions of chapter 623 of NRS.

     6.  The deputy manager for administrative, fiscal and constructional services must have a comprehensive knowledge of the principles of administration and a working knowledge of the principles of engineering or architecture as determined by the Board.

     7.  The deputy manager for compliance and code enforcement must have a comprehensive knowledge of building codes and a working knowledge of the principles of engineering or architecture as determined by the Board.

     8.  The Manager shall:

     (a) Serve as the Secretary of the Board.

     (b) Manage the daily affairs of the Board.

     (c) Represent the Board before the Legislature.

     (d) Prepare and submit to the Board, for its approval, the recommended priority for proposed capital improvement projects and provide the Board with an estimate of the cost of each project.

     (e) Make recommendations to the Board for the selection of architects, engineers and contractors.

     (f) Make recommendations to the Board concerning the acceptance of completed projects.

     (g) Submit in writing to the Board, the Governor and the Interim Finance Committee a monthly report regarding all public works projects which are a part of the approved capital improvement program. For each such project, the monthly report must include, without limitation, a detailed description of the progress of the project which highlights any specific events, circumstances or factors that may result in:

           (1) Changes in the scope of the design or construction of the project or any substantial component of the project which increase or decrease the total square footage or cost of the project by 10 percent or more;

           (2) Increased or unexpected costs in the design or construction of the project or any substantial component of the project which materially affect the project;

           (3) Delays in the completion of the design or construction of the project or any substantial component of the project; or

           (4) Any other problems which may adversely affect the design or construction of the project or any substantial component of the project.

     (h) Have final authority to approve the architecture of all buildings, plans, designs, types of construction, major repairs and designs of landscaping.

     9.  The deputy manager for compliance and code enforcement shall [serve] :

 


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

ê2011 Statutes of Nevada, Page 3574 (Chapter 517, SB 40)ê

 

     (a) Serve as the building official for all buildings and structures on property of the State or held in trust for any division of the State Government [.] ; and

     (b) Consult with an agency or official that is considering adoption of a regulation described in sections 4, 5 or 8 to 11, inclusive, of this act and provide recommendations regarding how the regulation, as it applies to buildings and structures on property of this State or held in trust for any division of the State Government, may be made consistent with other regulations which apply to such buildings or structures.

     Sec. 3.  NRS 353.590 is hereby amended to read as follows:

     353.590  If an agreement pursuant to NRS 353.500 to 353.630, inclusive, involves the construction, alteration, repair or remodeling of an improvement:

     1.  Except as otherwise provided in this section, the construction, alteration, repair or remodeling of the improvement may be conducted as specified in the agreement without complying with the provisions of:

     (a) Any law requiring competitive bidding; or

     (b) Chapter 341 of NRS.

     2.  The person or entity that enters into the agreement for the actual construction, alteration, repair or remodeling of the improvement shall include in the agreement the contractual provisions and stipulations that are required to be included in a contract for a public work pursuant to the provisions of NRS 338.013 to 338.090, inclusive.

     3.  The State or a state agency, the contractor who is awarded the contract or entered into the agreement to perform the construction, alteration, repair or remodeling of the improvement and any subcontractor on the project shall comply with the provisions of NRS 338.013 to 338.090, inclusive, in the same manner as if the State or a state agency had undertaken the project or had awarded the contract.

     4.  The provisions of:

     (a) [Subsection] Paragraph (b) of subsection 9 of NRS 341.100; and

     (b) NRS 341.105,

Ê apply to the construction, alteration, repair or remodeling of the improvement.

     Sec. 4.  Chapter 446 of NRS is hereby amended by adding thereto a new section to read as follows:

     Before the State Board of Health may adopt any regulation concerning the construction, maintenance, operation or safety of a building, structure or other property in this State, the Board shall consult with the deputy manager for compliance and code enforcement for the purposes of subsection 9 of NRS 341.100.

     Sec. 5.  Chapter 449 of NRS is hereby amended by adding thereto a new section to read as follows:

     Before the State Department may adopt any regulation concerning the construction, maintenance, operation or safety of a building, structure or other property in this State, the State Department shall consult with the deputy manager for compliance and code enforcement for the purposes of subsection 9 of NRS 341.100.

 


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

ê2011 Statutes of Nevada, Page 3575 (Chapter 517, SB 40)ê

 

     Sec. 6.  NRS 449.250 is hereby amended to read as follows:

     449.250  NRS 449.250 to 449.430, inclusive, and section 5 of this act may be cited as the Nevada Health Facilities Assistance Act.

     Sec. 7.  NRS 449.260 is hereby amended to read as follows:

     449.260  As used in NRS 449.250 to 449.430, inclusive [:] , and section 5 of this act:

     1.  “Community mental health center” means a facility providing services for the prevention or diagnosis of mental illness, or care and treatment of patients with mental illness, or rehabilitation of such persons, which services are provided principally for persons residing in a particular community in or near which the facility is situated.

     2.  “Construction” includes the construction of new buildings, modernization, expansion, remodeling and alteration of existing buildings, and initial equipment of such buildings, including medical transportation facilities, and includes architects’ fees, but excludes the cost of off-site improvements and, except with respect to public health centers, the cost of the acquisition of the land.

     3.  “Facility for persons with mental retardation” means a facility specially designed for the diagnosis, treatment, education, training or custodial care of persons with mental retardation, including facilities for training specialists and sheltered workshops for persons with mental retardation, but only if such workshops are part of facilities which provide or will provide comprehensive services for persons with mental retardation.

     4.  “Federal Act” means 42 U.S.C. §§ 291 to 291o-l, inclusive, and 300k to 300t, inclusive, and any other federal law providing for or applicable to the provision of assistance for health facilities.

     5.  “Federal agency” means the federal department, agency or official designated by law, regulation or delegation of authority to administer the Federal Act.

     6.  “Health facility” includes a public health center, hospital, facility for hospice care, facility for persons with mental retardation, community mental health center, and other facility to provide diagnosis, treatment, care, rehabilitation, training or related services to persons with physical or mental impairments, including diagnostic or diagnostic and treatment centers, rehabilitation facilities and nursing homes, as those terms are defined in the Federal Act, and such other facilities for which federal aid may be authorized under the Federal Act, but, except for facilities for persons with mental retardation, does not include any facility furnishing primarily domiciliary care.

     7.  “Nonprofit health facility” means any health facility owned and operated by a corporation or association, no part of the net earnings of which inures or may lawfully inure to the benefit of any private shareholder or natural person.

     8.  “Public health center” means a publicly owned facility for the provision of public health services, including related facilities such as laboratories, clinics and administrative offices operated in connection with public health centers.

     9.  “State Department” means the Department of Health and Human Services, acting through its appropriate divisions.

 


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

ê2011 Statutes of Nevada, Page 3576 (Chapter 517, SB 40)ê

 

     Sec. 8.  Chapter 455C of NRS is hereby amended by adding thereto a new section to read as follows:

     Before the Division may adopt any regulation concerning the construction, maintenance, operation or safety of a building, structure or other property in this State, the Division shall consult with the deputy manager for compliance and code enforcement for the purposes of subsection 9 of NRS 341.100.

     Sec. 9.  Chapter 461 of NRS is hereby amended by adding thereto a new section to read as follows:

     Before the Division may adopt any regulation concerning the construction, maintenance, operation or safety of a building, structure or other property in this State, the Division shall consult with the deputy manager for compliance and code enforcement for the purposes of subsection 9 of NRS 341.100.

     Sec. 10.  Chapter 472 of NRS is hereby amended by adding thereto a new section to read as follows:

     Before the State Forester Firewarden may adopt any regulation concerning the construction, maintenance, operation or safety of a building, structure or other property in this State, the State Forester Firewarden shall consult with the deputy manager for compliance and code enforcement for the purposes of subsection 9 of NRS 341.100.

     Sec. 11.  Chapter 477 of NRS is hereby amended by adding thereto a new section to read as follows:

     Before the State Fire Marshal may adopt any regulation concerning the construction, maintenance, operation or safety of a building, structure or other property in this State that is a state-owned building or facility, the State Fire Marshal shall consult with the deputy manager for compliance and code enforcement for the purposes of subsection 9 of NRS 341.100.

     Sec. 12.  (Deleted by amendment.)

     Sec. 13.  This act becomes effective upon passage and approval.

________

 


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

ê2011 Statutes of Nevada, Page 3577ê

 

CHAPTER 518, SB 65

Senate Bill No. 65–Committee on Government Affairs

 

CHAPTER 518

 

[Approved: June 17, 2011]

 

AN ACT relating to local financial administration; revising provisions concerning the publication of certain financial information by an incorporated city or a county; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law requires the clerk and council of each city incorporated under general law or charter to publish in a newspaper a quarterly statement of the city’s finances that shows the receipts and disbursements and the details of each bill that the city has paid. (NRS 268.030) Section 2 of this bill requires the publication of only the total amounts of the city’s receipts, disbursements and bills paid for the quarter but expressly provides that the receipts, bills and other documents which support each transaction that is included in the published totals are public records which are available for inspection and copying. Section 2 also requires publication of the financial statement on the Internet website of the city, if the city maintains an Internet website. Section 1 of this bill eliminates a duplicative requirement for the publication of financial information that only applies to the city clerks of cities incorporated under general law.

       Under existing law, a board of county commissioners is required to publish in a newspaper a quarterly financial statement of receipts, expenditures and bills allowed. (NRS 244.225, 354.210) Sections 3 and 5 of this bill require the publication of only the total amounts of the county’s receipts, expenditures and bills allowed but expressly provides that the receipts, bills and other documents which support each transaction that is included in the published totals are public records which are available for inspection and copying. Sections 3 and 5 also require publication of the financial statement on the Internet website of the county if the county maintains an Internet website.

       Section 4 of this bill requires the Committee on Local Government Finance to adopt regulations regarding the appropriate format for the financial statements posted on the Internet website of cities and counties.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  NRS 266.480 is hereby amended to read as follows:

     266.480  The city clerk shall:

     1.  Keep the office of the city clerk at the place of meeting of the city council, or some other place convenient thereto, as the council may direct.

     2.  Keep the corporate seal and all papers and records of the city.

     3.  Keep a record of the proceedings of the city council, whose meetings the city clerk shall attend.

     4.  Countersign all contracts made in behalf of the city, and every such contract or contracts to which the city is a party shall be void unless signed by the city clerk.

     [5.  Cause to be published quarterly in some newspaper published in the city a statement of the finances of the city, showing receipts and disbursements, and bills allowed and paid. The statement shall be signed by the mayor and attested by the city clerk.

 


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

ê2011 Statutes of Nevada, Page 3578 (Chapter 518, SB 65)ê

 

the mayor and attested by the city clerk. If there should be no newspaper published in the county, the financial statement shall be published in a newspaper of general circulation in the county.]

     Sec. 2.  NRS 268.030 is hereby amended to read as follows:

     268.030  1.  After March 23, 1939, the city clerk and city council of every incorporated city in this state, whether incorporated under the provisions of chapter 266 of NRS or under the provisions of a special act, shall cause to be published quarterly in some newspaper, published as hereinafter provided, a statement of the finances of the city, showing the total amounts of receipts , [and] disbursements [, exhibiting in detail the] and bills allowed and paid [.] for the period covered by the statement. The statement [shall be] must:

     (a) Inform the public of the provisions of subsection 3;

     (b) If the city maintains an official Internet website, inform the public of where the financial statement is posted on the Internet website pursuant to subsection 2;

     (c) Provide a telephone number the public may call for further instructions on how to obtain the detailed financial documents;

     (d) Provide the address of the city office or offices where the public may view the detailed financial documents;

     (e) Be signed by the mayor and attested by the city clerk ; [,] and [shall be]

     (f) Be published in a newspaper published in [such] the city [.] for a period of at least 5 consecutive days. If [there shall be] no newspaper is published in [such] the city, then the financial statement [shall] must be published in a newspaper published in the county, and if [there be] no newspaper is published in the county, [such] the financial statement [shall] must be published in a newspaper of general circulation in the county or posted by the city clerk at the door of the city hall.

     2.  If a city maintains an official Internet website, the city clerk and city council shall maintain and update quarterly on the Internet website of the city a statement of the finances of the city, showing the receipts, disbursements and bills allowed and paid for the period covered by the statement. The statement must:

     (a) Inform the public of the provisions of subsection 3;

     (b) Provide a telephone number the public may call for further instructions on how to obtain the detailed financial documents;

     (c) Provide the address of the city office or offices where the public may view the detailed financial documents; and

     (d) Be signed by the mayor and attested by the city clerk.

     3.  The original and any duplicate or copy of each receipt, bill, invoice, check, warrant, voucher or other similar document that supports a transaction, the amount of which is shown in the financial statement published pursuant to this section is a public record that is available for inspection and copying by any person pursuant to the provisions of chapter 239 of NRS.

     4.  Any city officer [in this state] who [shall violate] violates the provisions of this section [shall be deemed] is guilty of a misdemeanor.

     Sec. 3.  NRS 244.225 is hereby amended to read as follows:

     244.225  1.  The board of county commissioners shall publish quarterly a statement of the total amounts of receipts and expenditures of the 3 months next preceding, and the total amounts of accounts allowed. Publications shall be made by making one insertion of the statement in a newspaper published in the county, but if no newspaper [be] is published in the county, then such publication shall be made by posting a copy of the statement at the courthouse door and at two other public places in the county.

 


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

ê2011 Statutes of Nevada, Page 3579 (Chapter 518, SB 65)ê

 

shall be made by making one insertion of the statement in a newspaper published in the county, but if no newspaper [be] is published in the county, then such publication shall be made by posting a copy of the statement at the courthouse door and at two other public places in the county. The statement must:

     (a) Inform the public of the provisions of subsection 3;

     (b) If the county maintains an official Internet website, inform the public of where the financial statement is posted on the Internet website pursuant to subsection 2;

     (c) Provide a telephone number the public may call for further instructions on how to obtain the detailed financial documents;

     (d) Provide the address of the county office or offices where the public may view the detailed financial documents; and

     (e) Be published for a period of at least 5 consecutive days.

     2.  If a county maintains an official Internet website, the board of county commissioners shall maintain and update quarterly on the Internet website of the county a statement of the receipts and expenditures of the 3 months next preceding and the accounts allowed. The statement must:

     (a) Inform the public of the provisions of subsection 3;

     (b) Provide a telephone number the public may call for further instructions on how to obtain the detailed financial documents; and

     (c) Provide the address of the county office or offices where the public may view the detailed financial documents.

     3.  The original and any duplicate or copy of each receipt, bill, invoice, check, warrant, voucher or other similar document that supports a transaction, the amount of which is shown in the statement published pursuant to this section, is a public record that is available for inspection and copying by any person pursuant to the provisions of chapter 239 of NRS.

     Sec. 4.  NRS 354.107 is hereby amended to read as follows:

     354.107  1.  The Committee on Local Government Finance may adopt such regulations as are necessary for the administration of this chapter.

     2.  The Committee on Local Government Finance shall adopt regulations prescribing the format of the financial statement posted on the Internet website of a city or county pursuant to NRS 244.225, 268.030 and 354.210.

     3.  Any regulations adopted by the Committee on Local Government Finance must be adopted in the manner prescribed for state agencies in chapter 233B of NRS.

     Sec. 5.  NRS 354.210 is hereby amended to read as follows:

     354.210  1.  Except as provided in subsection 3, the board of county commissioners shall cause a statement of the total amount of [all] bills allowed by it [, together with the names of the persons to whom such allowances are made and for what such allowances are made,] to be published in some newspaper published in the county. The statement must:

     (a) Inform the public of the provisions of subsection 5;

     (b) If the county maintains an official Internet website, inform the public of where the financial statement is posted on the Internet website pursuant to subsection 4;

     (c) Provide a telephone number the public may call for further instructions on how to obtain the detailed financial documents;

 


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

ê2011 Statutes of Nevada, Page 3580 (Chapter 518, SB 65)ê

 

     (d) Provide the address of the county office or offices where the public may view the detailed financial documents; and

     (e) Be published for a period of at least 5 consecutive days.

     2.  The amount paid for such publication shall not exceed the statutory rate for publication of legal notices, and the publication shall not extend beyond a single insertion.

     3.  Where no newspaper is published in a county, the board of county commissioners may cause to be published, in some newspaper having a general circulation within the county, the allowances provided for in subsection 1, or shall cause the clerk of the board to post such allowances at the door of the courthouse.

     4.  If a county maintains an official Internet website, the board of county commissioners shall maintain and update quarterly on the official Internet website of the county a statement of the bills allowed by it. The statement must:

     (a) Inform the public of the provisions of subsection 5;

     (b) Provide a telephone number the public may call for further instructions on how to obtain the detailed financial documents; and

     (c) Provide the address of the county office or offices where the public may view the detailed financial documents.

     5.  The original and any duplicate or copy of each bill, including, without limitation, the amount of the bill, the name of the person to whom such allowance is made and for what such allowance is made, or any other document that supports a transaction, the amount of which is shown in the statement published pursuant to this section, is a public record that is available for inspection and copying by any person pursuant to the provisions of chapter 239 of NRS.

     Sec. 6.  The Committee on Local Government Finance shall adopt the regulations required pursuant to subsection 2 of NRS 354.107, as amended by section 4 of this act, on or before January 15, 2012.

     Sec. 7.  This act becomes effective upon passage and approval for the purpose of adopting regulations and performing any other preparatory tasks that are necessary to carry out the provisions of this act and on January 15, 2012, for all other purposes.

________

 


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

ê2011 Statutes of Nevada, Page 3581ê

 

CHAPTER 519, SB 99

Senate Bill No. 99–Senator Hardy

 

CHAPTER 519

 

[Approved: June 17, 2011]

 

AN ACT relating to consumer protection; prescribing certain mandatory terms of a contract for grant writing services; providing certain exemptions; revising certain provisions concerning solicitations by telephone; providing penalties; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Section 16 of this bill sets forth requirements applicable to contracts for grant writing services in this State. Section 7 of this bill defines “grant writing service.” Section 22 of this bill provides that a violation of the provisions of this bill constitutes a deceptive trade practice. Section 9 of this bill exempts from the provisions of this bill the providing of certain education and training relating to grants and certain grant writing services that offer services relating to affordable housing and community development projects. Section 27 of this bill exempts certain persons from certain provisions concerning telephone solicitations.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

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 23, inclusive, of this act.

     Sec. 2.  As used in sections 2 to 23, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 3 to 8, inclusive, of this act have the meanings ascribed to them in those sections.

     Sec. 3.  “Buyer” means a natural person who is solicited to purchase or who purchases the services of a grant writing service.

     Secs. 3.5-5.  (Deleted by amendment.)

     Sec. 6.  “Grant” means any money given by a governmental entity or any other person or organization to finance a specific or general purpose.

     Sec. 7.  “Grant writing service” means a person who, with respect to obtaining any grant or other payment, loan or money, advertises, sells, provides or performs, or represents that he or she can or will sell, provide or perform, any of the following services in return for the payment of money or other valuable consideration:

     1.  Writing an application for a grant for a buyer.

     2.  Obtaining a grant for a buyer.

     3.  Providing advice or assistance to a buyer in obtaining a grant.

     Sec. 8.  (Deleted by amendment.)

     Sec. 9.  The provisions of sections 2 to 23, inclusive, of this act do not apply to:

     1.  A grant writing service which provides services relating to an affordable housing and community development project which is financed, in whole or in part, by tax credits for low-income housing, private activity bonds or money provided by a private entity, government, governmental agency or political subdivision of a government, including, without limitation, any money provided pursuant to 12 U.S.C. § 1701q, 26 U.S.C. § 42, 42 U.S.C. § 8013 or 42 U.S.C. §§ 12701 et seq.

 


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

ê2011 Statutes of Nevada, Page 3582 (Chapter 519, SB 99)ê

 

agency or political subdivision of a government, including, without limitation, any money provided pursuant to 12 U.S.C. § 1701q, 26 U.S.C. § 42, 42 U.S.C. § 8013 or 42 U.S.C. §§ 12701 et seq.

     2.  Education and training regarding procedures for writing, obtaining or managing grants that is provided by an educational institution which is accredited by an accrediting body that is recognized by the United States Department of Education.

     Secs. 10-15.  (Deleted by amendment.)

     Sec. 16.  A contract between a buyer and a grant writing service for the purchase of the services of the grant writing service:

     1.  Must be in writing.

     2.  Must be signed by the buyer or, if the transaction is conducted electronically, otherwise acknowledged by the buyer.

     3.  Must be dated.

     4.  Must clearly indicate above the signature or acknowledgment line that the buyer may cancel the contract within 5 days after execution of the contract by giving written notice to the grant writing service of his or her intent to cancel the contract. If the notice is mailed, the notice must be postmarked not later than 5 days after the execution of the contract.

     5.  Must include a detailed description of the services to be performed by the grant writing service for the buyer and the total amount the buyer is obligated to pay for those services.

     6.  Must include a statement in at least 12-point bold type informing the buyer of his or her right to file a complaint concerning the grant writing service with the Bureau of Consumer Protection in the Office of the Attorney General, including the physical address and telephone number for the Bureau.

     Secs. 17-21.  (Deleted by amendment.)

     Sec. 22.  Any violation of sections 2 to 23, inclusive, of this act constitutes a deceptive trade practice for the purposes of NRS 598.0903 to 598.0999, inclusive.

     Secs. 23-26.  (Deleted by amendment.)

     Sec. 27.  NRS 228.600 is hereby amended to read as follows:

     228.600  1.  The provisions of NRS 228.590 do not prohibit a telephone solicitor from making or causing another person to make an unsolicited telephone call for the sale of goods or services to a telephone number in the currently effective version of the list of telephone numbers in the registry if:

     (a) There is a preexisting business relationship between the telephone solicitor and the person who is called; and

     (b) The telephone solicitor complies with the provisions of this section.

     2.  Before a telephone solicitor may make or cause another person to make an unsolicited telephone call for the sale of goods or services based on a preexisting business relationship, the telephone solicitor must establish and maintain an internal do-not-call registry that complies with federal and state laws and regulations. The internal do-not-call registry must:

     (a) Include, without limitation, a list of the telephone numbers of any person who has requested that the telephone solicitor not make or cause another person to make an unsolicited telephone call for the sale of goods or services to a telephone number of the person making the request; and

     (b) Upon request, be provided by the person to the Attorney General.

 


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

ê2011 Statutes of Nevada, Page 3583 (Chapter 519, SB 99)ê

 

     3.  In addition to the requirements set forth in subsection 2, at least once each year, the telephone solicitor shall provide written notice to each person with whom the telephone solicitor has a preexisting business relationship. The written notice must:

     (a) Inform the person that the telephone solicitor is providing the notice pursuant to state law;

     (b) Explain to the person that the telephone solicitor may elect to be placed on the internal do-not-call list of the telephone solicitor and specify the procedures for making such an election; and

     (c) Explain to the person that the person may contact the customer service department of the telephone solicitor or the Attorney General to obtain further information concerning the provisions of this section and must provide the current address, telephone number and electronic mail address of the customer service department of the telephone solicitor and the Attorney General.

     4.  The provisions of subsection 3 do not apply to a person to whom a license to operate an information service or a nonrestricted gaming license, which is current and valid, has been issued pursuant to chapter 463 of NRS when soliciting sales within the scope of his or her license.

     5.  As used in this section, “preexisting business relationship” means a relationship between a telephone solicitor and a person that is based on:

     (a) The person’s purchase, rental or lease of goods or services directly from the telephone solicitor, but not from any affiliate or associate of the telephone solicitor; or

     (b) Any other financial transaction directly between the person and the telephone solicitor, but not between the person and any affiliate or associate of the telephone solicitor,

Ê that occurs within the 18 months immediately preceding the date of the unsolicited telephone call for the sale of goods or services.

________

CHAPTER 520, SB 164

Senate Bill No. 164–Senator Schneider

 

CHAPTER 520

 

[Approved: June 17, 2011]

 

AN ACT relating to persons involved in the administration of insurance; authorizing the Administrator of the Division of Industrial Relations of the Department of Business and Industry to conduct certain investigations and examinations of third-party administrators; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law requires a third-party administrator for an insurer to have a certificate of registration issued by the Commissioner of Insurance. (NRS 616B.500, 616B.503, 683A.085)

       Section 16.5 of this bill authorizes the Administrator of the Division of Industrial Relations of the Department of Business and Industry to determine whether a third-party administrator has adequate facilities in this State to administer claims and to conduct such investigations and examinations of third-party administrators as the Administrator deems reasonable.

 


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

ê2011 Statutes of Nevada, Page 3584 (Chapter 520, SB 164)ê

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Sections 1-16.  (Deleted by amendment.)

     Sec. 16.5.  NRS 616A.400 is hereby amended to read as follows:

     616A.400  The Administrator shall:

     1.  Prescribe by regulation the time within which adjudications and awards must be made.

     2.  Regulate forms of notices, claims and other blank forms deemed proper and advisable.

     3.  Prescribe by regulation the methods by which an insurer may approve or reject claims, and may determine the amount and nature of benefits payable in connection therewith.

     4.  Prescribe by regulation the method for reimbursing an injured employee for expenses necessarily incurred for travel more than 20 miles one way from the employee’s residence or place of employment to his or her destination as a result of an industrial injury.

     5.  Determine whether an insurer or third-party administrator has provided adequate facilities in this State to administer claims and for the retention of a file on each claim.

     6.  Evaluate the services of private carriers provided to employers in:

     (a) Controlling losses; and

     (b) Providing information on the prevention of industrial accidents or occupational diseases.

     7.  Conduct such investigations and examinations of insurers or third-party administrators as the Administrator deems reasonable to determine whether any person has violated the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS or to obtain information useful to enforce or administer these chapters.

     8.  Prescribe by regulation the qualifications for final approval by the Division of an applicant for a certificate of registration as an administrator pursuant to subsection 3 of NRS 683A.08524. The regulations must set forth qualifications which provide for the final approval of those applicants whose approval is in the best interests of the people of this State.

     9.  Except with respect to any matter committed by specific statute to the regulatory authority of another person or agency, adopt such other regulations as the Administrator deems necessary to carry out the provisions of chapters 616A to 617, inclusive, of NRS.

     Sec. 17.  (Deleted by amendment.)

     Sec. 18.  This act becomes effective upon passage and approval for the purpose of adopting regulations and on January 1, 2012, for all other purposes.

________

 


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

ê2011 Statutes of Nevada, Page 3585ê

 

CHAPTER 521, SB 110

Senate Bill No. 110–Senator Lee

 

CHAPTER 521

 

[Approved: June 17, 2011]

 

AN ACT relating to businesses; requiring a board of county commissioners and the governing bodies of certain incorporated cities to enter into an agreement to establish a business license to allow a licensed contractor to engage in the business of contracting in the county and cities under certain circumstances; authorizing a board of county commissioners and the governing bodies of certain other incorporated cities to enter into such an agreement; revising the circumstances for obtaining a county or city business license; revising certain provisions for the issuance of a license for a food establishment; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law authorizes counties, cities and towns to issue business licenses and permits to operate a business within the limits of the county, city or town and to collect taxes on those licenses. (NRS 244.335, 266.355, 268.095, 269.170) Sections 1 and 2 of this bill require the board of county commissioners in a county whose population is 700,000 or more (currently Clark County) and the governing body of each incorporated city whose population is 150,000 or more located in such a county (currently Henderson, Las Vegas and North Las Vegas) to enter into an agreement with each other for the establishment of a business license to allow a licensed contractor to engage in the business of contracting in the county and cities if the contractor: (1) has a place of business in an unincorporated area of the county; or (2) does not have a place of business in the county. Sections 1 and 2 also require such a board of county commissioners to enter into similar agreements with the governing body of each incorporated city whose population is less than 150,000 located in the county (currently Boulder City and Mesquite) who chooses to enter into such an agreement. Sections 1 and 2 further require the board of county commissioners and governing body of each such incorporated city to establish by ordinance a system for issuing the business license which sets forth the requirements for obtaining the license and the fees for the issuance and renewal of the license.

       Existing law requires an applicant for a county or city business license to sign an affidavit to affirm that he or she has complied with the business licensing provisions of this State. (NRS 244.335, 268.095) Sections 1.5 and 3 of this bill provide for an alternative procedure for an applicant to prove compliance by providing his or her entity number assigned by the Secretary of State for investigation by the city council or board of county commissioners to whom he or she is applying. Existing law also requires an applicant for a city or county business license to sign an affidavit affirming that the business maintains certain insurance requirements. (NRS 244.33505, 268.0955) Sections 1.7 and 3.5 of this bill allow an applicant to attest to his or her compliance with these provisions instead of providing a physical signature if the applicant submits his or her application electronically.

       Existing law prohibits a city, county or other licensing authority from issuing a license for the operation of a food establishment until the owner has obtained the required permit by the health authority. (NRS 446.877) Section 3.7 of this bill authorizes the board of county commissioners or the governing body of an incorporated city to issue a license to a food establishment contingent upon the owner’s obtaining the required health permit.

 


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

ê2011 Statutes of Nevada, Page 3586 (Chapter 521, SB 110)ê

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  Chapter 244 of NRS is hereby amended by adding thereto a new section to read as follows:

     1.  The board of county commissioners in each county whose population is 700,000 or more shall enter into an agreement in accordance with the provisions of NRS 277.080 to 277.180, inclusive, with the governing body of each city whose population is 150,000 or more located within the county and with the governing body of each city located within the county whose population is less than 150,000 who chooses to enter into such an agreement for the establishment of a business license to authorize a person who is licensed as a contractor pursuant to chapter 624 of NRS to engage in the business of contracting within the county and each of those cities.

     2.  The agreement required pursuant to subsection 1 must set forth the purposes, powers, rights, obligations and responsibilities, financial and otherwise, of the county and each city that enters into the agreement.

     3.  Upon entering into the agreement required pursuant to subsection 1, the board of county commissioners shall establish by ordinance a system for issuing such a business license that authorizes a person who is licensed as a contractor pursuant to chapter 624 of NRS to engage in the business of contracting within the county and each city that entered into the agreement pursuant to subsection 1 and in which the person intends to conduct business.

     4.  An ordinance adopted pursuant to the provisions of subsection 3 must include, without limitation:

     (a) The requirements for obtaining the business license;

     (b) The fees for the issuance and renewal of the business license; and

     (c) Any other requirements necessary to establish the system for issuing the business license.

     5.  A person who is licensed as a contractor pursuant to chapter 624 of NRS is eligible to obtain from the county a business license that authorizes the person to engage in the business of contracting within the county and each city located in the county which enters into an agreement pursuant to subsection 1 and in which the person intends to conduct business if the person meets the requirements set forth in the ordinance to qualify for the license and:

     (a) The person maintains only one place of business within the county and the place of business is located within the unincorporated area of the county;

     (b) The person maintains more than one place of business within the county and each of those places of business is located within the unincorporated area of the county; or

     (c) The person does not maintain any place of business within the county.

     6.  A person who obtains a business license described in this section is subject to all other licensing and permitting requirements of the State and any other counties and cities in which the person does business.

 


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

ê2011 Statutes of Nevada, Page 3587 (Chapter 521, SB 110)ê

 

     Sec. 1.5.  NRS 244.335 is hereby amended to read as follows:

     244.335  1.  Except as otherwise provided in subsections 2, 3 and 4, and section 1 of this act, a board of county commissioners may:

     (a) Except as otherwise provided in NRS 244.331 to 244.3345, inclusive, 598D.150 and 640C.100, regulate all character of lawful trades, callings, industries, occupations, professions and business conducted in its county outside of the limits of incorporated cities and towns.

     (b) Except as otherwise provided in NRS 244.3359 and 576.128, fix, impose and collect a license tax for revenue or for regulation, or for both revenue and regulation, on such trades, callings, industries, occupations, professions and business.

     2.  The county license boards have the exclusive power in their respective counties to regulate entertainers employed by an entertainment by referral service and the business of conducting a dancing hall, escort service, entertainment by referral service or gambling game or device permitted by law, outside of an incorporated city. The county license boards may fix, impose and collect license taxes for revenue or for regulation, or for both revenue and regulation, on such employment and businesses.

     3.  A board of county commissioners shall not require that a person who is licensed as a contractor pursuant to chapter 624 of NRS obtain more than one license to engage in the business of contracting or pay more than one license tax related to engaging in the business of contracting, regardless of the number of classifications or subclassifications of licensing for which the person is licensed pursuant to chapter 624 of NRS.

     4.  The board of county commissioners or county license board shall not require a person to obtain a license or pay a license tax on the sole basis that the person is a professional. As used in this subsection, “professional” means a person who:

     (a) Holds a license, certificate, registration, permit or similar typeof authorization issued by a regulatory body as defined in NRS 622.060 or who is regulated pursuant to the Nevada Supreme Court Rules; and

     (b) Practices his or her profession for any type of compensation as an employee.

     5.  The county license board shall provide upon request an application for a state business license pursuant to chapter 76 of NRS. No license to engage in any type of business may be granted unless the applicant for the license [signs] :

     (a) Signs an affidavit affirming that the business has complied with the provisions of chapter 76 of NRS [. The county license board shall provide upon request an application for a business license pursuant to chapter 76 of NRS. As used in this subsection, “professional” means a person who:

     (a) Holds a license, certificate, registration, permit or similar type of authorization issued by a regulatory body as defined in NRS 622.060, or who is regulated pursuant to the Nevada Supreme Court Rules; and

     (b) Practices his or her profession for any type of compensation as an employee.

     5.] ; or

     (b) Provides to the county license board the entity number of the applicant assigned by the Secretary of State which the county may use to validate that the applicant is currently in good standing with the State and has complied with the provisions of chapter 76 of NRS.

 


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

ê2011 Statutes of Nevada, Page 3588 (Chapter 521, SB 110)ê

 

     6.  No license to engage in business as a seller of tangible personal property may be granted unless the applicant for the license [presents] :

     (a) Presents written evidence that:

     [(a)] (1) The Department of Taxation has issued or will issue a permit for this activity, and this evidence clearly identifies the business by name; or

     [(b)] (2) Another regulatory agency of the State has issued or will issue a license required for this activity [.

     6.] ; or

     (b) Provides to the county license board the entity number of the applicant assigned by the Secretary of State which the county may use to validate that the applicant is currently in good standing with the State and has complied with the provisions of paragraph (a).

     7.  Any license tax levied for the purposes of NRS 244.3358 or 244A.597 to 244A.655, inclusive, constitutes a lien upon the real and personal property of the business upon which the tax was levied until the tax is paid. The lien has the same priority as a lien for general taxes. The lien must be enforced:

     (a) By recording in the office of the county recorder, within 6 months after the date on which the tax became delinquent or was otherwise determined to be due and owing, a notice of the tax lien containing the following:

           (1) The amount of tax due and the appropriate year;

           (2) The name of the record owner of the property;

           (3) A description of the property sufficient for identification; and

           (4) A verification by the oath of any member of the board of county commissioners or the county fair and recreation board; and

     (b) By an action for foreclosure against the property in the same manner as an action for foreclosure of any other lien, commenced within 2 years after the date of recording of the notice of the tax lien, and accompanied by appropriate notice to other lienholders.

     [7.] 8.  The board of county commissioners may delegate the authority to enforce liens from taxes levied for the purposes of NRS 244A.597 to 244A.655, inclusive, to the county fair and recreation board. If the authority is so delegated, the board of county commissioners shall revoke or suspend the license of a business upon certification by the county fair and recreation board that the license tax has become delinquent, and shall not reinstate the license until the tax is paid. Except as otherwise provided in NRS 239.0115 and 244.3357, all information concerning license taxes levied by an ordinance authorized by this section or other information concerning the business affairs or operation of any licensee obtained as a result of the payment of such license taxes or as the result of any audit or examination of the books by any authorized employee of a county fair and recreation board of the county for any license tax levied for the purpose of NRS 244A.597 to 244A.655, inclusive, is confidential and must not be disclosed by any member, officer or employee of the county fair and recreation board or the county imposing the license tax unless the disclosure is authorized by the affirmative action of a majority of the members of the appropriate county fair and recreation board. Continuing disclosure may be so authorized under an agreement with the Department of Taxation or Secretary of State for the exchange of information concerning taxpayers.

 


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

ê2011 Statutes of Nevada, Page 3589 (Chapter 521, SB 110)ê

 

     Sec. 1.7.  NRS 244.33505 is hereby amended to read as follows:

     244.33505  1.  In a county in which a license to engage in a business is required, the board of county commissioners shall not issue such a license unless the applicant for the license [signs] :

     (a) Signs an affidavit affirming that the business:

     [(a)] (1) Has received coverage by a private carrier as required pursuant to chapters 616A to 616D, inclusive, and chapter 617 of NRS;

     [(b)] (2) Maintains a valid certificate of self-insurance pursuant to chapters 616A to 616D, inclusive, of NRS;

     [(c)] (3) Is a member of an association of self-insured public or private employers; or

     [(d)] (4) Is not subject to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS [.] ; or

     (b) If the applicant submits his or her application electronically, attests to his or her compliance with the provisions of paragraph (a).

     2.  In a county in which such a license is not required, the board of county commissioners shall require a business, when applying for a post office box, to submit to the board the affidavit or attestation required by subsection 1.

     3.  Each board of county commissioners shall submit to the Administrator of the Division of Industrial Relations of the Department of Business and Industry monthly a list of the names of those businesses which have submitted an affidavit or attestation required by subsections 1 and 2.

     4.  Upon receiving an affidavit or attestation required by this section, a board of county commissioners shall provide the owner of the business with a document setting forth the rights and responsibilities of employers and employees to promote safety in the workplace, in accordance with regulations adopted by the Division of Industrial Relations of the Department of Business and Industry pursuant to NRS 618.376.

     Sec. 2.  Chapter 268 of NRS is hereby amended by adding thereto a new section to read as follows:

     1.  The governing body of each incorporated city whose population is 150,000 or more and which is located in a county whose population is 700,000 or more, whether organized under general law or special charter, shall enter into an agreement in accordance with the provisions of NRS 277.080 to 277.180, inclusive, with the board of county commissioners of the county in which the city is located, with the governing body of every other city located within the county whose population is 150,000 or more and with the governing body of each city located within the county whose population is less than 150,000 who chooses to enter into such an agreement for the establishment of a business license to authorize a person who is licensed as a contractor pursuant to chapter 624 of NRS to engage in the business of contracting within the county and each of those cities.

     2.  The agreement required pursuant to subsection 1 must set forth the purposes, powers, rights, obligations and responsibilities, financial and otherwise, of the county and each city that enters into the agreement.

     3.  Upon entering into the agreement required pursuant to subsection 1, the governing body of the city shall establish by ordinance a system for issuing such a business license that authorizes a person who is licensed as a contractor pursuant to chapter 624 of NRS to engage in the business of contracting within the county and cities that entered into the agreement pursuant to subsection 1 and in which the person intends to conduct business.

 


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

ê2011 Statutes of Nevada, Page 3590 (Chapter 521, SB 110)ê

 

     4.  An ordinance adopted pursuant to the provisions of subsection 3 must include, without limitation:

     (a) The requirements for obtaining the business license;

     (b) The fees for the issuance and renewal of the business license; and

     (c) Any other requirements necessary to establish the system for issuing the business license.

     5.  A person who is licensed as a contractor pursuant to chapter 624 of NRS is eligible to obtain from the city a business license that authorizes the person to engage in the business of contracting within the county and each city located in the county which enters into an agreement pursuant to subsection 1 and in which the person intends to conduct business if the person meets the requirements set forth in the ordinance to qualify for the license and:

     (a) The person maintains only one place of business within the county and the place of business is located within the jurisdiction of the city;

     (b) The person maintains more than one place of business within the county and each of those places of business is located within the jurisdiction of the city; or

     (c) The person does not maintain any place of business within the county.

     6.  A person who obtains a business license described in this section is subject to all other licensing and permitting requirements of the State and any other counties and cities in which the person does business.

     Sec. 3.  NRS 268.095 is hereby amended to read as follows:

     268.095  1.  Except as otherwise provided in subsection 4 [,] and section 2 of this act, the city council or other governing body of each incorporated city in this State, whether organized under general law or special charter, may:

     (a) Except as otherwise provided in subsection 2 and NRS 268.0968 and 576.128, fix, impose and collect for revenues or for regulation, or both, a license tax on all character of lawful trades, callings, industries, occupations, professions and businesses conducted within its corporate limits.

     (b) Assign the proceeds of any one or more of such license taxes to the county within which the city is situated for the purpose or purposes of making the proceeds available to the county:

           (1) As a pledge as additional security for the payment of any general obligation bonds issued pursuant to NRS 244A.597 to 244A.655, inclusive;

           (2) For redeeming any general obligation bonds issued pursuant to NRS 244A.597 to 244A.655, inclusive;

           (3) For defraying the costs of collecting or otherwise administering any such license tax so assigned, of the county fair and recreation board and of officers, agents and employees hired thereby, and of incidentals incurred thereby;

           (4) For operating and maintaining recreational facilities under the jurisdiction of the county fair and recreation board;

           (5) For improving, extending and bettering recreational facilities authorized by NRS 244A.597 to 244A.655, inclusive; and

           (6) For constructing, purchasing or otherwise acquiring such recreational facilities.

     (c) Pledge the proceeds of any tax imposed on the revenues from the rental of transient lodging pursuant to this section for the payment of any general or special obligations issued by the city for a purpose authorized by the laws of this State.

 


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

ê2011 Statutes of Nevada, Page 3591 (Chapter 521, SB 110)ê

 

     (d) Use the proceeds of any tax imposed pursuant to this section on the revenues from the rental of transient lodging:

           (1) To pay the principal, interest or any other indebtedness on any general or special obligations issued by the city pursuant to the laws of this State;

           (2) For the expense of operating or maintaining, or both, any facilities of the city; and

           (3) For any other purpose for which other money of the city may be used.

     2.  The city council or other governing body of an incorporated city shall not require that a person who is licensed as a contractor pursuant to chapter 624 of NRS obtain more than one license to engage in the business of contracting or pay more than one license tax related to engaging in the business of contracting, regardless of the number of classifications or subclassifications of licensing for which the person is licensed pursuant to chapter 624 of NRS.

     3.  The proceeds of any tax imposed pursuant to this section that are pledged for the repayment of general obligations may be treated as “pledged revenues” for the purposes of NRS 350.020.

     4.  The city council or other governing body of an incorporated city shall not require a person to obtain a license or pay a license tax on the sole basis that the person is a professional. As used in this subsection, “professional” means a person who:

     (a) Holds a license, certificate, registration, permit or similar type of authorization issued by a regulatory body as defined in NRS 622.060 or who is regulated pursuant to the Nevada Supreme Court Rules; and

     (b) Practices his or her profession for any type of compensation as an employee.

     5.  The city licensing agency shall provide upon request an application for a state business license pursuant to chapter 76 of NRS. No license to engage in any type of business may be granted unless the applicant for the license [signs] :

     (a) Signs an affidavit affirming that the business has complied with the provisions of chapter 76 of NRS [. The city licensing agency shall provide upon request an application for a business license pursuant to chapter 76 of NRS. As used in this subsection, “professional” means a person who:

     (a) Holds a license, certificate, registration, permit or similar type of authorization issued by a regulatory body as defined in NRS 622.060, or who is regulated pursuant to the Nevada Supreme Court Rules; and

     (b) Practices his or her profession for any type of compensation as an employee.

     5.]  ; or

     (b) Provides to the city licensing agency the entity number of the applicant assigned by the Secretary of State which the city may use to validate that the applicant is currently in good standing with the State and has complied with the provisions of chapter 76 of NRS.

     6.  No license to engage in business as a seller of tangible personal property may be granted unless the applicant for the license [presents] :

     (a) Presents written evidence that:

     [(a)] (1) The Department of Taxation has issued or will issue a permit for this activity, and this evidence clearly identifies the business by name; or

     [(b)] (2) Another regulatory agency of the State has issued or will issue a license required for this activity [.

 


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

ê2011 Statutes of Nevada, Page 3592 (Chapter 521, SB 110)ê

 

     6.]  ; or

     (b) Provides to the city licensing agency the entity number of the applicant assigned by the Secretary of State which the city may use to validate that the applicant is currently in good standing with the State and has complied with the provisions of paragraph (a).

     7.  Any license tax levied under the provisions of this section constitutes a lien upon the real and personal property of the business upon which the tax was levied until the tax is paid. The lien has the same priority as a lien for general taxes. The lien must be enforced:

     (a) By recording in the office of the county recorder, within 6 months following the date on which the tax became delinquent or was otherwise determined to be due and owing, a notice of the tax lien containing the following:

           (1) The amount of tax due and the appropriate year;

           (2) The name of the record owner of the property;

           (3) A description of the property sufficient for identification; and

           (4) A verification by the oath of any member of the board of county commissioners or the county fair and recreation board; and

     (b) By an action for foreclosure against such property in the same manner as an action for foreclosure of any other lien, commenced within 2 years after the date of recording of the notice of the tax lien, and accompanied by appropriate notice to other lienholders.

     [7.] 8.  The city council or other governing body of each incorporated city may delegate the power and authority to enforce such liens to the county fair and recreation board. If the authority is so delegated, the governing body shall revoke or suspend the license of a business upon certification by the board that the license tax has become delinquent, and shall not reinstate the license until the tax is paid. Except as otherwise provided in NRS 239.0115 and 268.0966, all information concerning license taxes levied by an ordinance authorized by this section or other information concerning the business affairs or operation of any licensee obtained as a result of the payment of those license taxes or as the result of any audit or examination of the books of the city by any authorized employee of a county fair and recreation board for any license tax levied for the purpose of NRS 244A.597 to 244A.655, inclusive, is confidential and must not be disclosed by any member, official or employee of the county fair and recreation board or the city imposing the license tax unless the disclosure is authorized by the affirmative action of a majority of the members of the appropriate county fair and recreation board. Continuing disclosure may be so authorized under an agreement with the Department of Taxation or the Secretary of State for the exchange of information concerning taxpayers.

     [8.] 9.  The powers conferred by this section are in addition and supplemental to, and not in substitution for, and the limitations imposed by this section do not affect the powers conferred by, any other law. No part of this section repeals or affects any other law or any part thereof, it being intended that this section provide a separate method of accomplishing its objectives, and not an exclusive one.

     Sec. 3.5.  NRS 268.0955 is hereby amended to read as follows:

     268.0955  1.  In an incorporated city in which a license to engage in a business is required, the city council or other governing body of the city shall not issue such a license unless the applicant for the license [signs] :

     (a) Signs an affidavit affirming that the business:

 


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

ê2011 Statutes of Nevada, Page 3593 (Chapter 521, SB 110)ê

 

     [(a)] (1) Has received coverage by a private carrier as required pursuant to chapters 616A to 616D, inclusive, and chapter 617 of NRS;

     [(b)] (2) Maintains a valid certificate of self-insurance pursuant to chapters 616A to 616D, inclusive, of NRS;

     [(c)] (3) Is a member of an association of self-insured public or private employers; or

     [(d)] (4) Is not subject to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS [.] ; or

     (b) If the applicant submits his or her application electronically, attests to his or her compliance with the provisions of paragraph (a).

     2.  In an incorporated city in which such a license is not required, the city council or other governing body of the city shall require a business, when applying for a post office box, to submit to the governing body the affidavit or attestation required by subsection 1.

     3.  Each city council or other governing body of an incorporated city shall submit to the Administrator of the Division of Industrial Relations of the Department of Business and Industry monthly a list of the names of those businesses which have submitted an affidavit or attestation required by subsections 1 and 2.

     4.  Upon receiving an affidavit or attestation required by this section, the city council or other governing body of an incorporated city shall provide the applicant with a document setting forth the rights and responsibilities of employers and employees to promote safety in the workplace in accordance with regulations adopted by the Division of Industrial Relations of the Department of Business and Industry pursuant to NRS 618.376.

     Sec. 3.7.  NRS 446.877 is hereby amended to read as follows:

     446.877  [No]

     1.  Except as otherwise provided in subsection 2, no license under any license ordinance of [a city, county or other] any licensing authority [shall] may be issued for the operation of a food establishment to any person owning or operating such food establishment unless the permit required by this chapter has first been granted by the health authority.

     2.  A board of county commissioners or the city council or other governing body of an incorporated city, whether organized under general law or special charter, may issue a license to operate a food establishment to any person owning or operating the food establishment contingent upon the person’s obtaining the permit required by this chapter from the health authority.

     Sec. 4.  (Deleted by amendment.)

     Sec. 4.5.  The governing body of a county whose population is 700,000 or more and each city whose population is 150,000 or more located in the county shall:

     1.  Enter into the agreements required pursuant to sections 1 and 2 of this act; and

     2.  Adopt the ordinances required pursuant to section 1 and 2 of this act,

Ê on or before 1 year after the effective date of this act.

     Sec. 5.  This act becomes effective upon passage and approval.

________

 


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

ê2011 Statutes of Nevada, Page 3594ê

 

CHAPTER 522, AB 77

Assembly Bill No. 77–Committee on Commerce and Labor

 

CHAPTER 522

 

[Approved: June 17, 2011]

 

AN ACT relating to mortgage lending; revising provisions relating to the licensing of escrow agents and escrow agencies; revising provisions relating to a surety bond or substitute security posted by an escrow agency; requiring the Commissioner of Mortgage Lending to establish certain fees; revising provisions relating to disciplinary action for an escrow agent or escrow agency; establishing provisions governing the arranging or servicing of loans in which an investor has an interest; requiring a mortgage broker who services a loan to make certain reports; exempting certain natural persons and nonprofit organizations from statutes governing mortgage brokers and mortgage agents; revising provisions relating to a surety bond posted by a mortgage broker; requiring a mortgage broker to review an impound trust account annually; revising provisions relating to the renewal of a license as a mortgage banker; enacting requirements for mortgage brokers and for mortgage bankers to make the statutory schemes governing the two professions more similar; allowing disclosure of certain confidential information relating to an investigation; enacting provisions for the enforcement of the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008; requiring the licensing of a person who performs the services of a construction control; requiring the licensing of a provider of certain additional services as a provider of covered services; revising provisions relating to compensation for a provider of covered services; increasing certain administrative fines; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law governs the conduct of escrow agents and escrow agencies and requires the Commissioner of Mortgage Lending to supervise and control the conduct of escrow agents and escrow agencies within this State. (Chapter 645A of NRS) Section 3.5 of this bill includes the performance of the services of a construction control within the definition of escrow. Sections 4 and 5 of this bill revise provisions relating to the licensing of escrow agents and escrow agencies. Section 6 of this bill revises provisions relating to the surety bond posted by an escrow agency. Sections 8 and 9 of this bill revise provisions relating to the fees and costs relating to escrow agents and escrow agencies that the Commissioner is authorized to collect. Sections 2 and 10-12 of this bill revise provisions relating to discipline for activities relating to escrow agents and escrow agencies.

       Existing law governs the conduct of mortgage agents and mortgage brokers and requires the Commissioner of Mortgage Lending to supervise and control the conduct of mortgage agents and mortgage brokers within this State. (Chapter 645B of NRS) Sections 21, 22, 24, 25, 34 and 37 of this bill establish provisions governing the arranging or servicing of loans by a mortgage broker in which an investor has an interest. Section 44 of this bill revises the exemptions from the statutes governing mortgage agents and mortgage brokers. Sections 47 and 48 of this bill revise provisions relating to a surety bond posted by a mortgage broker.

 


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

ê2011 Statutes of Nevada, Page 3595 (Chapter 522, AB 77)ê

 

provisions relating to a surety bond posted by a mortgage broker. Section 53 of this bill authorizes the Commissioner to disclose certain confidential information relating to an investigation. Section 56 of this bill requires a mortgage broker to review an impound trust account annually.

       Existing law governs the conduct of mortgage bankers and requires the Commissioner of Mortgage Lending to supervise and control the conduct of mortgage bankers within this State. (Chapter 645E of NRS) Section 72 of this bill revises the exemptions from the statutes governing mortgage bankers. Section 81 of this bill authorizes the Commissioner to disclose certain confidential information relating to an investigation.

       Existing law requires the Commissioner to adopt regulations concerning the licensing of persons who provide certain covered services. (NRS 645F.390) Section 96 of this bill includes additional services within the definition of “covered services.” Section 101 of this bill revises provisions governing the compensation a provider of covered services may receive.

       Sections 42, 45, 46, 50-55, 59, 60, 62-64, 67, 69, 73, 76, 79-82 and 99 of this bill enact or revise provisions to implement the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  NRS 645.8725 is hereby amended to read as follows:

     645.8725  “Escrow” has the meaning ascribed to it in subsection [3] 4 of NRS 645A.010.

     Sec. 1.3.  NRS 645.8731 is hereby amended to read as follows:

     645.8731  “Escrow agent” has the meaning ascribed to it in subsection [3] 4 of NRS 645A.010.

     Sec. 1.7.  Chapter 645A of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.

     Sec. 2.  If a person offers or provides any of the services of an escrow agent or escrow agency or otherwise engages in, carries on or holds himself or herself out as engaging in or carrying on the business of an escrow agent or escrow agency and, at the time:

     1.  The person was required to have a license pursuant to this chapter and the person did not have such a license; or

     2.  The person’s license was suspended or revoked pursuant to this chapter,

Ê the Commissioner shall impose upon the person an administrative fine of not more than $25,000 for each violation and, if the person has a license, the Commissioner may suspend or revoke it.

     Sec. 3.  1.  If an escrow agency is not a natural person, the escrow agency must designate a natural person as a qualified employee to act on behalf of the escrow agency.

     2.  The Division shall adopt regulations regarding a qualified employee, including, without limitation, regulations that establish:

     (a) A definition for the term “qualified employee”;

     (b) Any duties of a qualified employee; and

     (c) Any requirements regarding a qualified employee.

 


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

ê2011 Statutes of Nevada, Page 3596 (Chapter 522, AB 77)ê

 

     Sec. 3.5.  NRS 645A.010 is hereby amended to read as follows:

     645A.010  As used in this chapter, unless the context otherwise requires:

     1.  “Commissioner” means the Commissioner of Mortgage Lending.

     2.  “Construction control” has the meaning ascribed to it in NRS 627.050.

     3.  “Division” means the Division of Mortgage Lending of the Department of Business and Industry.

     [3.] 4.  “Escrow” means any transaction wherein one person, for the purpose of effecting the sale, transfer, encumbering or leasing of real or personal property to another person, delivers any written instrument, money, evidence of title to real or personal property, or other thing of value to a third person until the happening of a specified event or the performance of a prescribed condition, when it is then to be delivered by such third person to a grantee, grantor, promisee, promisor, obligee, obligor, bailee, bailor or any agent or employee of any of the latter. The term includes the collection of payments and the performance of related services by a third person in connection with a loan secured by a lien on real property [.

     4.]  and the performance of the services of a construction control.

     5.  “Escrow agency” means:

     (a) Any person who employs one or more escrow agents; or

     (b) An escrow agent who administers escrows on his or her own behalf.

     [5.] 6.  “Escrow agent” means any person engaged in the business of administering escrows for compensation.

     Sec. 4.  NRS 645A.020 is hereby amended to read as follows:

     645A.020  1.  A person who wishes to be licensed as an escrow agent or agency must file a written application in the Office of the Commissioner.

     2.  The application must:

     (a) Be verified.

     (b) Be accompanied by the appropriate fee prescribed in NRS 645A.040.

     (c) State the location of the applicant’s principal office and branch offices in the State and residence address.

     (d) State the name under which the applicant will conduct business.

     (e) List the names, residence and business addresses of all persons having an interest in the business as principals, partners, officers, trustees or directors, specifying the capacity and title of each.

     (f) Indicate the general plan and character of the business.

     (g) State the length of time the applicant has been engaged in the escrow business.

     (h) Require a financial statement of the applicant.

     (i) Require such other information as the Commissioner determines necessary.

     (j) If for an escrow agency, designate a natural person to receive service of process in this State for the agency.

     (k) Include a complete set of the fingerprints of the applicant or, if the applicant is not a natural person, a complete set of the fingerprints of each person who will have an interest in the escrow agency as a principal, partner, officer, director or trustee, and written permission authorizing the Division 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.

 


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

ê2011 Statutes of Nevada, Page 3597 (Chapter 522, AB 77)ê

 

     (l) Include all information required to complete the application.

     3.  If the Commissioner determines, after investigation, that the experience, character, financial condition, business reputation and general fitness of the applicant are such as to command the confidence of the public and to warrant the belief that the business conducted will protect and safeguard the public, the Commissioner shall issue a license to the applicant as an escrow agent or agency.

     4.  The Commissioner may waive the investigation required by subsection 3 if the applicant submits with the application satisfactory proof that the applicant, in good standing, currently holds a license, or held a license, within 1 year before the date the applicant submits his or her application, which was issued pursuant to the provisions of NRS 692A.103.

     5.  An escrow agent or agency shall immediately notify the Division of any material change in the information contained in the application.

     6.  A person may not be licensed as an escrow agent or agency or be a principal , partner, officer, director or trustee of an escrow agency if the person is the holder of an active license issued pursuant to chapter 645 of NRS.

     7.  If the Commissioner finds that additional information is required to consider the application, the Commissioner shall send a letter to the applicant which specifies the additional requirements that the applicant must satisfy within 30 days after receiving the letter to obtain a license. If the applicant does not satisfy all additional requirements set forth in the letter within 30 days after receipt of the letter, the application will be deemed to have been denied, and the applicant must reapply to obtain a license. The Commissioner may, for good cause, extend the 30-day period prescribed in this subsection.

     Sec. 5.  NRS 645A.040 is hereby amended to read as follows:

     645A.040  1.  Every license issued pursuant to the provisions of this chapter expires on July 1 of each year if it is not renewed. A license may be renewed by filing an application for renewal, paying the annual fee for the succeeding year and submitting all information required to complete the renewal.

     2.  The fees for the issuance or renewal of a license for an escrow agency are:

     (a) For filing an application for an initial license, $500 for the principal office and $100 for each branch office.

     (b) If the license is approved for issuance, $200 for the principal office and $100 for each branch office. The fee must be paid before issuance of the license.

     (c) For filing an application for renewal, $200 for the principal office and $100 for each branch office.

     3.  The fees for the issuance or renewal of a license for an escrow agent are:

     (a) For filing an application for an initial license or for the renewal of a license, $100.

     (b) If a license is approved for issuance or renewal, $25. The fee must be paid before the issuance or renewal of the license.

     4.  If a licensee fails to pay the fee or submit all required information for the annual renewal of his or her license before its expiration, the license may be renewed only upon the payment of a fee one and one-half times the amount otherwise required for renewal. A license may be renewed pursuant to this subsection only if all the fees are paid and all required information is submitted within [1 year] 2 months after the date on which the license expired.

 


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

ê2011 Statutes of Nevada, Page 3598 (Chapter 522, AB 77)ê

 

to this subsection only if all the fees are paid and all required information is submitted within [1 year] 2 months after the date on which the license expired.

     5.  In addition to the other fees set forth in this section, each applicant or licensee shall pay:

     (a) For filing an application for a duplicate copy of any license, upon satisfactory showing of its loss, $10.

     (b) For filing any change of information contained in the application, $10.

     (c) For each change of association with an escrow agency, $25.

     6.  Except as otherwise provided in this chapter, all fees received pursuant to this chapter must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     Sec. 6.  NRS 645A.041 is hereby amended to read as follows:

     645A.041  1.  Except as otherwise provided in NRS 645A.042, as a condition to doing business in this State, each escrow agency shall deposit with the Commissioner and keep in full force and effect a corporate surety bond payable to the State of Nevada, in the amount set forth in subsection 4, which is executed by a corporate surety satisfactory to the Commissioner and which names as principals the escrow agency and all escrow agents employed by or associated with the escrow agency.

     2.  At the time of filing an application for a license as an escrow agent, the applicant shall file with the Commissioner proof that the applicant is named as a principal on the corporate surety bond deposited with the Commissioner by the escrow agency with whom he or she is associated or employed.

     3.  The bond must be in substantially the following form:

 

     Know All Persons by These Presents, that ........................, as principal, and ........................, as surety, are held and firmly bound unto the State of Nevada for the use and benefit of any person who suffers damages because of a violation of any of the provisions of chapter 645A of NRS, in the sum of ............, lawful money of the United States, to be paid to the State of Nevada for such use and benefit, for which payment well and truly to be made, and that we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

     The condition of that obligation is such that: Whereas, the principal has been issued a license as an escrow agency or escrow agent by the Commissioner of Mortgage Lending of the Department of Business and Industry of the State of Nevada and is required to furnish a bond, which is conditioned as set forth in this bond:

     Now, therefore, if the principal, his or her agents and employees, strictly, honestly and faithfully comply with the provisions of chapter 645A of NRS, and pay all damages suffered by any person because of a violation of any of the provisions of chapter 645A of NRS, or by reason of any fraud, dishonesty, misrepresentation or concealment of material facts growing out of any transaction governed by the provisions of chapter 645A of NRS, then this obligation is void; otherwise it remains in full force.

     This bond becomes effective on the ..........(day) of ................(month) of ......(year), and remains in force until the surety is released from liability by the Commissioner of Mortgage Lending or until this bond is cancelled by the surety.

 


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

ê2011 Statutes of Nevada, Page 3599 (Chapter 522, AB 77)ê

 

surety. The surety may cancel this bond and be relieved of further liability hereunder by giving 60 days’ written notice to the principal and to the Commissioner of Mortgage Lending of the Department of Business and Industry of the State of Nevada.

     In Witness Whereof, the seal and signature of the principal hereto is affixed, and the corporate seal and the name of the surety hereto is affixed and attested by its authorized officers at ........................, Nevada, this .............(day) of ................(month) of ...….(year).

 

                                                  ...................................................... (Seal)

                                                                      Principal

                                                  ...................................................... (Seal)

                                                                       Surety

                                                               By..............................................

                                                                             Attorney-in-fact

                                                               ..................................................

                                                                            Nevada Licensed

                                                                [resident agent] Insurance Agent

 

     4.  Each escrow agency shall deposit a corporate surety bond that complies with the provisions of this section or a substitute form of security that complies with the provisions of NRS 645A.042 in the following amount based upon the average monthly balance of the trust account or escrow account maintained by the escrow agency pursuant to NRS 645A.160:

 

AVERAGE MONTHLY BALANCE                                                                 AMOUNT OF BOND OR

                                                                                                                            SECURITY REQUIRED

$50,000 or less............................................................................................................................ $20,000

More than $50,000 but not more than $250,000........................................................................... 50,000

More than $250,000 but not more than $500,000....................................................................... 100,000

More than $500,000 but not more than $750,000....................................................................... 150,000

More than $750,000 but not more than $1,000,000.................................................................... 200,000

More than $1,000,000................................................................................................................. 250,000

 

The Commissioner shall determine the appropriate amount of the surety bond or substitute form of security that must be deposited initially by the escrow agency based upon the expected average monthly balance of the trust account or escrow account maintained by the escrow agency pursuant to NRS 645A.160. After the initial deposit, the Commissioner shall, on a semiannual basis, determine the appropriate amount of the surety bond or substitute form of security that must be deposited by the escrow agency based upon the average monthly balance of the trust account or escrow account maintained by the escrow agency pursuant to NRS 645A.160.

     5.  A bond used to satisfy the requirements of NRS 627.180 or a substitute for that bond which satisfies the requirements of NRS 627.183 may be used to satisfy the requirements of this section if:

     (a) The amount required by NRS 627.180 for a bond is not less than the amount required by this section for a bond; or

     (b) The amount required by NRS 627.180 for a bond is less than the amount required by this section for a bond, and the escrow agency deposits an additional bond in an amount not less than the difference between the amount required by NRS 627.180 and the amount required by this section.

 


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

ê2011 Statutes of Nevada, Page 3600 (Chapter 522, AB 77)ê

 

     Sec. 7.  (Deleted by amendment.)

     Sec. 8.  NRS 645A.065 is hereby amended to read as follows:

     645A.065  1.  The Commissioner shall establish by regulation the fees to be paid by [escrow agencies] all persons subject to the provisions of this chapter for the supervision , investigation and examination of such [agencies] persons by the Commissioner or the Division.

     2.  In establishing the fees, the Commissioner shall consider:

     (a) The complexity of the various investigations and examinations to which the fees apply;

     (b) The skill required to conduct such investigations and examinations;

     (c) The expenses associated with conducting such investigations and examinations and preparing reports; and

     (d) Any other factors the Commissioner deems relevant.

     3.  The Commissioner shall adopt regulations prescribing the standards for determining whether an escrow agency has maintained adequate supervision of an escrow agent pursuant to the provisions of this chapter.

     Sec. 9.  NRS 645A.085 is hereby amended to read as follows:

     645A.085  1.  An escrow agency shall immediately notify the Commissioner of any change in the ownership of 5 percent or more of its outstanding voting stock.

     2.  An application must be submitted to the Commissioner, pursuant to NRS 645A.020, by a person who acquires:

     (a) At least 25 percent of the outstanding voting stock of an escrow agency; or

     (b) Any outstanding voting stock of an escrow agency if the change will result in a change in the control of the escrow agency.

     3.  Except as otherwise provided in subsection 5, the Commissioner shall conduct an investigation to determine whether the applicant has the experience, character, financial condition, business reputation and general fitness to command the confidence of the public and to warrant the belief that the business conducted will protect and safeguard the public. If the Commissioner denies the application, the Commissioner may forbid the applicant from participating in the business of the escrow agency.

     4.  The escrow agency with which the applicant is affiliated shall pay [a portion of] the cost of the investigation as the Commissioner requires. All money received by the Commissioner pursuant to this section must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     5.  An escrow agency may submit a written request to the Commissioner to waive an investigation pursuant to subsection 3. The Commissioner may grant a waiver if the applicant has undergone a similar investigation by a state or federal agency in connection with the licensing of or his or her employment with a financial institution.

     Sec. 10.  NRS 645A.090 is hereby amended to read as follows:

     645A.090  1.  The Commissioner may refuse to license any escrow agent or agency or may suspend , [or] revoke or place conditions upon any license or impose a fine on any person of not more than [$10,000] $25,000 for each violation by entering an order to that effect, with the Commissioner’s findings in respect thereto, if upon a hearing, it is determined that the applicant , [or] licensee [:] or person:

 


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

ê2011 Statutes of Nevada, Page 3601 (Chapter 522, AB 77)ê

 

     (a) In the case of an escrow agency, is insolvent;

     (b) Has violated any provision of this chapter , [or] any regulation adopted pursuant thereto or an order of the Commissioner or has aided and abetted another to do so;

     (c) In the case of an escrow agency, is in such a financial condition that he or she cannot continue in business with safety to his or her customers;

     (d) Has committed fraud in connection with any transaction governed by this chapter;

     (e) Has intentionally or knowingly made any misrepresentation or false statement to, or concealed any essential or material fact from, any principal or designated agent of a principal in the course of the escrow business;

     (f) Has intentionally or knowingly made or caused to be made to the Commissioner any false representation of a material fact or has suppressed or withheld from the Commissioner any information which the applicant , [or] licensee or person possesses;

     (g) Has failed without reasonable cause to furnish to the parties of an escrow their respective statements of the settlement within a reasonable time after the close of escrow;

     (h) Has failed without reasonable cause to deliver, within a reasonable time after the close of escrow, to the respective parties of an escrow transaction any money, documents or other properties held in escrow in violation of the provisions of the escrow instructions;

     (i) Has refused to permit an examination by the Commissioner of his or her books and affairs or has refused or failed, within a reasonable time, to furnish any information or make any report that may be required by the Commissioner pursuant to the provisions of this chapter;

     (j) Has been convicted of , entered or agreed to enter a plea of guilty or nolo contendere to, a felony relating to the practice of escrow agents or agencies or any felony or misdemeanor of which an essential element is an act of fraud [;] , dishonesty or a breach of trust, moral turpitude or money laundering;

     (k) In the case of an escrow agency, has failed to maintain complete and accurate records of all transactions within the last 6 years;

     (l) Has commingled the money of others with his or her own or converted the money of others to his or her own use;

     (m) Has failed, before the close of escrow, to obtain written escrow instructions concerning any essential or material fact or intentionally failed to follow the written instructions which have been agreed upon by the parties and accepted by the holder of the escrow;

     (n) Has failed to disclose in writing that he or she is acting in the dual capacity of escrow agent or agency and undisclosed principal in any transaction; [or]

     (o) In the case of an escrow agency, has:

           (1) Failed to maintain adequate supervision of an escrow agent; or

           (2) Instructed an escrow agent to commit an act which would be cause for the revocation of the escrow agent’s license and the escrow agent committed the act. An escrow agent is not subject to disciplinary action by the Commissioner for committing such an act under instruction by the escrow agency [.] ;

 


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

ê2011 Statutes of Nevada, Page 3602 (Chapter 522, AB 77)ê

 

     (p) In the case of an escrow agency, if the applicant or licensee is a partnership, corporation or unincorporated association, has a member of the partnership or an officer or director of the corporation or unincorporated association who has been convicted of, entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court relating to the practice of escrow agents or agencies, or any felony or misdemeanor of which an essential element is an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering; or

     (q) In the case of a person who performs the services of a construction control, has failed to comply with the provisions of chapter 627 of NRS.

     2.  It is sufficient cause for the imposition of a fine or the refusal, suspension or revocation of , or the placement of conditions upon, the license of a partnership, corporation or any other association that any member of the partnership or any officer or director of the corporation or association has been guilty of any act or omission which would be cause for such action had the applicant or licensee been a natural person.

     3.  The Commissioner may suspend any license for not more than 30 days, pending a hearing, if upon examination into the affairs of the licensee it is determined that any of the grounds enumerated in subsection 1 or 2 exist.

     4.  The Commissioner may refuse to issue a license to any person who, within 10 years before the date of applying for a current license, has had suspended or revoked a license issued pursuant to this chapter or a comparable license issued by any other state, district or territory of the United States or any foreign country.

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

     Sec. 11.  NRS 645A.100 is hereby amended to read as follows:

     645A.100  1.  Notice of the entry of any order of suspension , [or] revocation or placement of conditions upon a license or of imposing a fine or refusing a license to any escrow agent or agency must be given in writing, served personally or sent by certified mail or by telegram to the last known address of the agent or agency affected.

     2.  The agent or agency, upon application, is entitled to a hearing. If an application is not made within 20 days after the entry of the order, the Commissioner shall enter a final order.

     Sec. 12.  NRS 645A.235 is hereby amended to read as follows:

     645A.235  1.  [The holder of] A person who engages in an activity for which a license as an escrow agent or escrow agency [may be] is required pursuant to this chapter, without regard to whether such a person is licensed pursuant to this chapter, may be required by the Commissioner to pay restitution to any person who has suffered an economic loss as a result of a violation of the provisions of this chapter or any regulation adopted pursuant thereto.

     2.  Notwithstanding the provision of paragraph (m) of subsection 1 of NRS 622A.120, payment of restitution pursuant to subsection 1 shall be done in a manner consistent with the provisions of chapter 622A of NRS.

     Sec. 13.  Chapter 645B of NRS is hereby amended by adding thereto the provisions set forth as sections 16 to 40.7, inclusive, of this act.

     Sec. 14 and 15.  (Deleted by amendment.)

 


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

ê2011 Statutes of Nevada, Page 3603 (Chapter 522, AB 77)ê

 

     Sec. 16.  “Dwelling” has the meaning ascribed to it in section 103(v) of the federal Truth in Lending Act, 15 U.S.C. § 1602(v).

     Sec. 17.  (Deleted by amendment.)

     Sec. 17.5.  1.  “Loan processor” means a natural person who:

     (a) Receives, collects, distributes or analyzes information that is commonly used for the processing of a residential mortgage loan; and

     (b) Communicates with a consumer to obtain the information necessary for the activities described in paragraph (a).

     2.  The communication described in paragraph (b) of subsection 1 does not include communication offering or negotiating loan rates or terms or counseling consumers about residential mortgage loan rates or terms.

     Sec. 18.  “Majority of the investors” means the investors holding 51 percent or more of the beneficial interests in a loan.

     Sec. 19 and 20.  (Deleted by amendment.)

     Sec. 21.  A mortgage broker shall not accept money from an investor to acquire ownership of or a beneficial interest in a loan which has more than one investor at the time of origination unless the mortgage broker provides to each investor a form which allows the investor to choose one of the following options:

     1.  That, upon receipt of a written request submitted by another investor who owns or has a beneficial interest in the loan, the mortgage broker may provide to that other investor the name, address, telephone number and electronic mail address of the investor;

     2.  That, upon receipt of a written request submitted by another investor who owns or has a beneficial interest in the loan, the mortgage broker may provide to that other investor the name, address, telephone number and electronic mail address of the investor only if the loan is in default; or

     3.  That the address, telephone number and electronic mail address of the investor must remain confidential and that the mortgage broker may not provide that information to any other investor unless the investor provides the mortgage broker with subsequent written permission to provide such information to other investors.

     Sec. 22.  1.  A mortgage broker who makes or arranges a loan shall not include in any loan document a provision which requires a private investor to participate in binding arbitration of disputes relating to the loan.

     2.  The provisions of this section may not be varied by agreement, and the rights conferred by this section may not be waived. Any provision included in a loan document agreement that conflicts with this section is void.

     Sec. 23.  (Deleted by amendment.)

     Sec. 24.  1.  Before servicing a loan in which a private investor has acquired a beneficial interest, a mortgage broker must enter into a written servicing agreement with each investor which describes specifically the services which the mortgage broker will provide and the compensation the mortgage broker will receive for those services. The compensation of the mortgage broker must include an amount reasonably necessary to pay the cost of servicing the loan.

     2.  A mortgage broker shall include in each servicing agreement provisions which:

 


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

ê2011 Statutes of Nevada, Page 3604 (Chapter 522, AB 77)ê

 

     (a) Require the mortgage broker to:

           (1) Deposit in a trust account all money paid to the mortgage broker in full or partial payment of a loan, unless a provision of law authorizes the mortgage broker to deposit such money in a different manner;

           (2) Release to the investors, pursuant to paragraph (a) of subsection 5 of NRS 645B.175, within 15 days after receipt of all money paid to the mortgage broker in full or partial payment of a loan;

           (3) Record a request for special notice and notice of default for any encumbrance on the real property which has priority over the lien securing the loan or any other real property securing the loan;

           (4) Provide to each investor prompt written notice of:

                (I) Any lis pendens, mechanic’s lien or other lien recorded against the real property securing the loan after the origination of the loan if the mortgage broker has become aware that such an instrument has been recorded; and

                (II) Any delinquent taxes or insurance premiums;

           (5) Upon receiving a written request from an investor for a tally of any vote of the investors, provide to the investor a statement of the number of investors voting in favor of an action and the number of investors voting against the action and the percentage of beneficial interest represented by each such vote; and

           (6) Respond within a reasonable time under the circumstances to the request of the borrower or investor to correct any errors relating to the loan.

     (b) Prohibit the mortgage broker from:

           (1) Commingling with the assets of the mortgage broker any money paid to the mortgage broker in full or partial payment of a loan, unless a provision of law authorizes such commingling;

           (2) Using money paid to the mortgage broker in full or partial payment of a loan for any transaction other than the servicing transaction for which the money was paid, unless a provision of law authorizes such use; or

           (3) Requiring an investor to participate in binding arbitration of disputes relating to the loan.

     (c) Allow the majority of investors or the mortgage broker to transfer the servicing agreement to another entity authorized to service loans or terminate the servicing agreement for any reason, upon providing written notice at least 30 days before the effective date of the transfer or termination.

     Sec. 25.  Except as otherwise permitted by law, a mortgage broker shall not release a borrower or guarantor from personal liability for a loan unless a majority of the investors approve such a release.

     Sec. 26-33.  (Deleted by amendment.)

     Sec. 34.  1.  If an investor owes money to the mortgage broker who is servicing a loan or to other investors, the mortgage broker shall not withhold money due the investor in order to offset the money owed to the mortgage broker or to another investor, unless:

     (a) The mortgage broker obtains the written consent of the investor who owes the money; or

     (b) A court order requires the mortgage broker to withhold the money.

 


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

ê2011 Statutes of Nevada, Page 3605 (Chapter 522, AB 77)ê

 

     2.  A mortgage broker may include in a loan servicing agreement a provision which provides written consent to withhold money due an investor in order to offset money owed by the investor to the mortgage broker or other investors.

     Sec. 35 and 36.  (Deleted by amendment.)

     Sec. 37.  A mortgage broker shall not act as a construction control with respect to money belonging to a borrower or investor. If a borrower or investor wishes to utilize a construction control for money belonging to the borrower or investor, a mortgage broker must place the money with a person who is independent of the mortgage broker and is licensed or authorized to accept such money. The money must be subject to the control of a construction control which is in compliance with, or exempt from, the provisions of NRS 627.180 or 627.183.

     Sec. 38-40.  (Deleted by amendment.)

     Sec. 40.3.  1.  A mortgage broker shall not place or arrange to place a private investor into a limited-liability company, business trust or other entity before foreclosure of the real property securing the loan unless the mortgage broker:

     (a) Provides a copy of the organizational documents of the limited-liability company, business trust or other entity to each investor not later than 5 days before the investor transfers his or her interest in the loan; and

     (b) Obtains the written authorization of each investor who wishes to transfer his or her interest in the loan to the limited-liability company, business trust or other entity.

     2.  The documents provided to each investor pursuant to paragraph (a) of subsection 1 must clearly and concisely state any fees which will be paid to the mortgage broker by the limited-liability company, business trust or other entity, and the sections of the documents that state fees must be initialed by the investor.

     3.  A mortgage broker or mortgage agent shall not act as the attorney-in-fact or the agent of a private investor for the signing or dating of the written authorization.

     4.  Any term of a contract or other agreement that attempts to alter or waive the requirements of this section is void.

     Sec. 40.7.  1.  A mortgage broker shall not assess or collect any fee which is not:

     (a) Authorized by the loan documents or loan servicing agreement; and

     (b) Assessed or collected in exchange for bona fide services rendered or costs incurred.

     2.  A mortgage broker shall apply all fees collected in the manner set forth in the loan documents or loan servicing agreement.

     Sec. 41.  NRS 645B.010 is hereby amended to read as follows:

     645B.010  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 645B.0104 to 645B.0135, inclusive, and sections 14 to 18, inclusive, of this act have the meanings ascribed to them in those sections.

     Sec. 42.  NRS 645B.0125 is hereby amended to read as follows:

     645B.0125  1.  “Mortgage agent” means:

     (a) A natural person who:

           (1) Is an employee of a mortgage broker or mortgage banker who is required to be licensed pursuant to this chapter or chapter 645E of NRS; and

 


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

ê2011 Statutes of Nevada, Page 3606 (Chapter 522, AB 77)ê

 

           (2) Is authorized by the mortgage broker or mortgage banker to engage in, on behalf of the mortgage broker or mortgage banker, any activity that would require the person, if the person were not an employee of the mortgage broker or mortgage banker, to be licensed as a mortgage broker or mortgage banker pursuant to this chapter or chapter 645E of NRS; [or]

     (b) A mortgage broker, qualified employee or mortgage banker who is required by NRS 645B.405 or 645E.290 to be licensed as a mortgage agent [.] ; or

     (c) A loan processor who is an independent contractor and who is associated with a mortgage broker, mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016.

     2.  The term includes , but is not limited to, a residential mortgage loan originator.

     3.  The term does not include a person who:

     (a) Except as otherwise provided in paragraph (b) of subsection 1, is licensed as a mortgage broker or mortgage banker;

     (b) Is an owner, general partner, officer or director of a mortgage broker or mortgage banker [;] who does not engage in any activity that would otherwise require a license as a mortgage broker or mortgage banker;

     (c) [Performs] Except as otherwise provided in paragraph (c) of subsection 1, performs only clerical or ministerial tasks for a mortgage broker [;] or mortgage banker; or

     (d) Collects payments and performs related services, including, without limitation, the modification of an existing loan, in connection with a loan secured by a lien on real property and who does not undertake any other activity that would otherwise require a license pursuant to this chapter or chapter 645E or 645F of NRS.

     Sec. 43.  NRS 645B.0132 is hereby amended to read as follows:

     645B.0132  “Residential mortgage loan” means any loan primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling or residential real estate upon which is constructed or intended to be constructed a dwelling. [For purposes of this section, “dwelling” has the meaning ascribed to it section 103(v) of the federal Truth in Lending Act, 15 U.S.C. § 1602(v).]

     Sec. 44.  NRS 645B.015 is hereby amended to read as follows:

     645B.015  Except as otherwise provided in NRS 645B.016, the Secure and Fair Enforcement for Mortgage Licensing Act of 2008, 12 U.S.C. §§ 5101 et seq., and any regulations adopted pursuant thereto and other applicable law, the provisions of this chapter do not apply to:

     1.  Any person doing business under the laws of this State, any other state or the United States relating to banks, savings banks, trust companies, savings and loan associations, industrial loan companies, credit unions, thrift companies or insurance companies, including, without limitation, a subsidiary or a holding company of such a bank, company, association or union.

     2.  A real estate investment trust, as defined in 26 U.S.C. § 856, unless the business conducted in this State is not subject to supervision by the regulatory authority of the other jurisdiction, in which case licensing pursuant to this chapter is required.

 


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

ê2011 Statutes of Nevada, Page 3607 (Chapter 522, AB 77)ê

 

     3.  An employee benefit plan, as defined in 29 U.S.C. § 1002(3), if the loan is made directly from money in the plan by the plan’s trustee.

     4.  An attorney at law rendering services in the performance of his or her duties as an attorney at law.

     5.  A real estate broker rendering services in the performance of his or her duties as a real estate broker.

     6.  Any person doing any act under an order of any court.

     7.  Any one natural person, or husband and wife, who provides money for investment in commercial loans secured by a lien on real property, on his or her own account, unless such a person makes a loan secured by a lien on real property using his or her own money and assigns all or a part of his or her interest in the loan to another person, other than his or her spouse or child, within [5] 3 years after the date on which the loan is made or the deed of trust is recorded, whichever occurs later.

     8.  A natural person who only offers or negotiates terms of a residential mortgage loan:

     (a) With or on behalf of an immediate family member of the person; or

     (b) Secured by a dwelling that served as the person’s residence.

     [8.] 9.  Agencies of the United States and of this State and its political subdivisions, including the Public Employees’ Retirement System.

     [9.] 10.  A seller of real property who offers credit secured by a mortgage of the property sold.

     11.  A nonprofit agency or organization:

     (a) Which provides self-help housing for a borrower who has provided part of the labor to construct the dwelling securing the borrower’s loan;

     (b) Which does not charge or collect origination fees in connection with the origination of residential mortgage loans;

     (c) Which only makes residential mortgage loans at an interest rate of 0 percent per annum;

     (d) Whose volunteers, if any, do not receive compensation for their services in the construction of a dwelling; and

     (e) Which does not profit from the sale of a dwelling to a borrower.

     12.  A housing counseling agency approved by the United States Department of Housing and Urban Development.

     Sec. 45.  NRS 645B.016 is hereby amended to read as follows:

     645B.016  Except as otherwise provided in subsection 2 and NRS 645B.690:

     1.  A person who claims an exemption from the provisions of this chapter pursuant to subsection 1 of NRS 645B.015 must:

     (a) File a written application for a certificate of exemption with the Office of the Commissioner;

     (b) Pay the fee required pursuant to NRS 645B.050;

     (c) Include with the written application satisfactory proof that the person meets the requirements of subsection 1 of NRS 645B.015; and

     (d) Provide evidence to the Commissioner that the person is duly licensed to conduct his or her business, including, if applicable, the right to transact mortgage loans, and such license is in good standing pursuant to the laws of this State, any other state or the United States.

     2.  The provisions of subsection 1 do not apply to the extent preempted by federal law.

 


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

ê2011 Statutes of Nevada, Page 3608 (Chapter 522, AB 77)ê

 

     3.  The Commissioner may require a person who claims an exemption from the provisions of this chapter pursuant to subsections 2 to [9,] 12, inclusive, of NRS 645B.015 to:

     (a) File a written application for a certificate of exemption with the Office of the Commissioner;

     (b) Pay the fee required pursuant to NRS 645B.050; and

     (c) Include with the written application satisfactory proof that the person meets the requirements of at least one of those exemptions.

     4.  A certificate of exemption expires automatically if, at any time, the person who claims the exemption no longer meets the requirements of at least one exemption set forth in the provisions of NRS 645B.015.

     5.  If a certificate of exemption expires automatically pursuant to this section, the person shall not provide any of the services of a mortgage broker or mortgage agent or otherwise engage in, carry on or hold himself or herself out as engaging in or carrying on the business of a mortgage broker or mortgage agent unless the person applies for and is issued:

     (a) A license as a mortgage broker or mortgage agent, as applicable, pursuant to this chapter; or

     (b) Another certificate of exemption.

     6.  The Commissioner may impose upon a person who is required to apply for a certificate of exemption or who holds a certificate of exemption an administrative fine of not more than $10,000 for each violation that the person commits, if the person:

     (a) Has knowingly made or caused to be made to the Commissioner any false representation of material fact;

     (b) Has suppressed or withheld from the Commissioner any information which the person possesses and which, if submitted by the person, would have rendered the person ineligible to hold a certificate of exemption; or

     (c) Has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner that applies to a person who is required to apply for a certificate of exemption or who holds a certificate of exemption.

     7.  A person who is exempt from the requirements of this chapter may file a written application for a certificate of exemption with the Office of he Commissioner for the purposes of complying with the requirements of the Registry or enabling a mortgage agent to comply with the requirements of the Registry.

     8.  The Commissioner may require an applicant or person described in subsection 7 to submit the information or pay the fee directly to the Division or, if the applicant or person is required to register or voluntarily registers with the Registry, to the Division through the Registry.

     9.  An application filed pursuant to subsection 7 does not affect the applicability of this chapter to such an applicant or person.

     Sec. 46.  NRS 645B.020 is hereby amended to read as follows:

     645B.020  1.  A person who wishes to be licensed as a mortgage broker must file a written application for a license with the Office of the Commissioner and pay the fee required pursuant to NRS 645B.050. The Commissioner may require the applicant or person to submit the information or pay the fee directly to the Division or, if the applicant or person is required to register or voluntarily registers with the Registry, to the Division through the Registry. An application for a license as a mortgage broker must:

 


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

ê2011 Statutes of Nevada, Page 3609 (Chapter 522, AB 77)ê

 

     (a) State the name, residence address and business address of the applicant and the location of each principal office and branch office at which the mortgage broker will conduct business within this State [.] , including, without limitation, any office or other place of business located outside this State from which the mortgage broker will conduct business in this State and any office or other place of business which the applicant maintains as a corporate or home office.

     (b) State the name under which the applicant will conduct business as a mortgage broker.

     (c) List the name, residence address and business address of each person who will:

           (1) If the applicant is not a natural person, have an interest in the mortgage broker as a principal, partner, officer, director or trustee, specifying the capacity and title of each such person.

           (2) Be associated with or employed by the mortgage broker as a mortgage agent.

     (d) Include a general business plan and a description of the policies and procedures that the mortgage broker and his or her mortgage agents will follow to arrange and service loans and to conduct business pursuant to this chapter.

     (e) State the length of time the applicant has been engaged in the business of a mortgage broker.

     (f) Include a financial statement of the applicant and, if applicable, satisfactory proof that the applicant will be able to maintain continuously the net worth required pursuant to NRS 645B.115.

     (g) Include all information required to complete the application.

     (h) Unless fingerprints were submitted to the Registry for the person, include a complete set of fingerprints for each natural person who is a principal, partner, officer, director or trustee of the applicant which the Division may forward to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

     (i) Include any other information required pursuant to the regulations adopted by the Commissioner or an order of the Commissioner.

     2.  If a mortgage broker will conduct business in this State at one or more branch offices , [within this State,] the mortgage broker must apply for a license for each such branch office.

     3.  Except as otherwise provided [in this chapter,] by law, the Commissioner shall issue a license to an applicant as a mortgage broker if:

     (a) The application is verified by the Commissioner and complies with the requirements of this chapter; and

     (b) The applicant and each general partner, officer or director of the applicant, if the applicant is a partnership, corporation or unincorporated association:

           (1) Has demonstrated financial responsibility, character and general fitness so as to command the confidence of the community and warrant a determination that the applicant will operate honestly, fairly and efficiently for the purposes of this chapter.

           (2) Has not been convicted of, or entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court within the 7 years immediately preceding the date of the application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering.

 


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

ê2011 Statutes of Nevada, Page 3610 (Chapter 522, AB 77)ê

 

any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering.

           (3) Has not made a false statement of material fact on the application.

           (4) Has never had a license or registration as a mortgage agent, mortgage banker, mortgage broker or residential mortgage loan originator revoked in this State or any other jurisdiction or had a financial services license [suspended or] revoked within the immediately preceding 10 years.

           (5) Has not violated any provision of this chapter or chapter 645E of NRS, a regulation adopted pursuant thereto or an order of the Commissioner.

     4.  A person may apply for a license for an office or other place of business located outside this State from which the applicant will conduct business in this State if the applicant has a license issued pursuant to this chapter for an office or other place of business located in this State, and the applicant submits with the application for a license a statement signed by the applicant which states that the applicant agrees to:

     (a) Make available at a location within this State the books, accounts, papers, records and files of the office or place of business located outside this State to the Commissioner or a representative of the Commissioner; or

     (b) Pay the reasonable expenses for travel, meals and lodging of the Commissioner or a representative of the Commissioner incurred during any investigation or examination made at the office or place of business located outside this State.

Ê The applicant must be allowed to choose between paragraph (a) or (b) in complying with the provisions of this subsection.

     Sec. 47.  NRS 645B.042 is hereby amended to read as follows:

     645B.042  1.  [Except as otherwise provided in NRS 645B.044, as] As a condition to doing business in this State, each mortgage broker shall deposit with the Commissioner and keep in full force and effect a corporate surety bond payable to the State of Nevada, in the amount set forth in subsection 4, which is executed by a corporate surety satisfactory to the Commissioner and which names as principals the mortgage broker and all mortgage agents employed by or associated with the mortgage broker.

     2.  At the time of filing an application for a license as a mortgage agent and at the time of filing an application for the renewal of a license as a mortgage agent, the applicant shall file with the Commissioner proof that the applicant is named as a principal on the corporate surety bond deposited with the Commissioner by the mortgage broker with whom the applicant is associated or employed.

     3.  The bond must be in substantially the following form:

 

      Know All Persons by These Presents, that ...................., as principal, and ...................., as surety, are held and firmly bound unto the State of Nevada for the use and benefit of any person who suffers damages because of a violation of any of the provisions of chapter 645B of NRS, in the sum of ...................., lawful money of the United States, to be paid to the State of Nevada for such use and benefit, for which payment well and truly to be made, and that we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.

      The condition of that obligation is such that: Whereas, the principal has been issued a license as a mortgage broker or mortgage agent by the Commissioner of Mortgage Lending and is required to furnish a bond, which is conditioned as set forth in this bond:

 


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

ê2011 Statutes of Nevada, Page 3611 (Chapter 522, AB 77)ê

 

agent by the Commissioner of Mortgage Lending and is required to furnish a bond, which is conditioned as set forth in this bond:

      Now, therefore, if the principal, his or her agents and employees, strictly, honestly and faithfully comply with the provisions of chapter 645B of NRS, and pay all damages suffered by any person because of a violation of any of the provisions of chapter 645B of NRS, or by reason of any fraud, dishonesty, misrepresentation or concealment of material facts growing out of any transaction governed by the provisions of chapter 645B of NRS, then this obligation is void; otherwise it remains in full force.

      This bond becomes effective on the .......... (day) of .......... (month) of .......... (year), and remains in force until the surety is released from liability by the Commissioner of Mortgage Lending or until this bond is cancelled by the surety. The surety may cancel this bond and be relieved of further liability hereunder by giving 60 days’ written notice to the principal and to the Commissioner of Mortgage Lending.

      In Witness Whereof, the seal and signature of the principal hereto is affixed, and the corporate seal and the name of the surety hereto is affixed and attested by its authorized officers at ...................., Nevada, this .......... (day) of .......... (month) of .......... (year).

 

                                                          ............................................ (Seal)

                                                                        Principal

                                                          ............................................ (Seal)

                                                                          Surety

                                                          By................................................

                                                                   Attorney-in-fact

                                                          .....................................................

                                                                      Nevada Licensed

                                                          [resident agent] Insurance Agent

 

     4.  Each mortgage broker shall deposit a corporate surety bond that complies with the provisions of this section [or a substitute form of security that complies with the provisions of NRS 645B.044] in the following amounts:

     (a) For [the principal office,] an annual loan production of $20,000,000 or less, $50,000.

     (b) For [each branch office, $25,000.

Ê The total amount required for the corporate surety bond may not exceed $75,000, without regard to the number of branch offices, if any.] an annual loan production of more than $20,000,000, $75,000.

     5.  Except as otherwise required by federal law or regulation, for the purposes of subsection 4, the Commissioner shall determine the appropriate amount of the surety bond that must be deposited initially by a mortgage broker based upon the expected annual loan production amount and shall determine the appropriate amount of the surety bond annually based upon the actual annual loan production.

     Sec. 48.  NRS 645B.046 is hereby amended to read as follows:

     645B.046  1.  The surety may cancel a bond upon giving 60 days’ notice to the Commissioner by certified mail. Upon receipt by the Commissioner of such a notice, the Commissioner immediately shall notify the licensee who is the principal on the bond of the effective date of cancellation of the bond, and that his or her license will be revoked unless the licensee furnishes an equivalent bond [or a substitute form of security authorized by NRS 645B.044] before the effective date of the cancellation.

 


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

ê2011 Statutes of Nevada, Page 3612 (Chapter 522, AB 77)ê

 

cancellation of the bond, and that his or her license will be revoked unless the licensee furnishes an equivalent bond [or a substitute form of security authorized by NRS 645B.044] before the effective date of the cancellation. The notice must be sent to the licensee by certified mail to his or her last address of record filed in the office of the Division.

     2.  If the licensee does not comply with the requirements set out in the notice from the Commissioner, the license must be revoked on the date the bond is cancelled.

     Sec. 49.  (Deleted by amendment.)

     Sec. 50.  NRS 645B.050 is hereby amended to read as follows:

     645B.050  1.  A license as a mortgage broker issued pursuant to this chapter expires each year on [June 30,] December 31, unless it is renewed. To renew such a license, the licensee must submit to the Commissioner on or after November 1 and on or before [May 31] December 31 of each year [:] , or on a date otherwise specified by the Commissioner by regulation:

     (a) An application for renewal;

     (b) The fee required to renew the license pursuant to this section;

     (c) The information required pursuant to NRS 645B.051; and

     (d) All information required by the Commissioner or, if applicable, required by the Registry to complete the renewal.

     2.  If the licensee fails to submit any item required pursuant to subsection 1 to the Commissioner on or after November 1 and on or before [May 31] December 31 of any year, unless a different date is specified by the Commissioner by regulation, the license is cancelled as of [June 30] December 31 of that year. The Commissioner may reinstate a cancelled license if the licensee submits to the Commissioner [:] on or before February 28 of the following year:

     (a) An application for renewal;

     (b) The fee required to renew the license pursuant to this section;

     (c) The information required pursuant to NRS 645B.051;

     (d) Except as otherwise provided in this section, a reinstatement fee of not more than $200; and

     (e) All information required to complete the reinstatement.

     3.  Except as otherwise provided in NRS 645B.016, a certificate of exemption issued pursuant to this chapter expires each year on December 31, unless it is renewed. To renew a certificate of exemption, a person must submit to the Commissioner on or after November 1 and on or before [November 30] December 31 of each year [:] or on a date otherwise specified by the Commissioner by regulation:

     (a) An application for renewal that includes satisfactory proof that the person meets the requirements for an exemption from the provisions of this chapter; and

     (b) The fee required to renew the certificate of exemption.

     4.  If the person fails to submit any item required pursuant to subsection 3 to the Commissioner on or after November 1 and on or before [November 30] December 31 of any year, unless a different date is specified by the Commissioner by regulation, the certificate of exemption is cancelled as of December 31 of that year. Except as otherwise provided in NRS 645B.016, the Commissioner may reinstate a cancelled certificate of exemption if the person submits to the Commissioner [:] on or before February 28 of the following year:

 


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

ê2011 Statutes of Nevada, Page 3613 (Chapter 522, AB 77)ê

 

     (a) An application for renewal that includes satisfactory proof that the person meets the requirements for an exemption from the provisions of this chapter;

     (b) The fee required to renew the certificate of exemption; and

     (c) Except as otherwise provided in this section, a reinstatement fee of not more than $100.

     5.  Except as otherwise provided in this section, a person must pay the following fees to apply for, to be issued or to renew a license as a mortgage broker pursuant to this chapter:

     (a) To file an original application for a license, not more than $1,500 for the principal office and not more than $40 for each branch office. The person must also pay such additional expenses incurred in the process of investigation as the Commissioner deems necessary.

     (b) To be issued a license, not more than $1,000 for the principal office and not more than $60 for each branch office.

     (c) To renew a license, not more than $500 for the principal office and not more than $100 for each branch office.

     6.  Except as otherwise provided in this section, a person must pay the following fees to apply for or to renew a certificate of exemption pursuant to this chapter:

     (a) To file an application for a certificate of exemption, not more than $200.

     (b) To renew a certificate of exemption, not more than $100.

     7.  To be issued a duplicate copy of any license or certificate of exemption, a person must make a satisfactory showing of its loss and pay a fee of not more than $10.

     8.  Except as otherwise provided in this chapter, all fees received pursuant to this chapter are in addition to any fee required to be paid to the Registry and must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     9.  The Commissioner may, by regulation, adjust any fee or date set forth in this section if the Commissioner determines that such an adjustment is necessary for the Commissioner to carry out his or her duties pursuant to this chapter. The amount of any adjustment in a fee pursuant to this subsection must not exceed the amount determined to be necessary for the Commissioner to carry out his or her duties pursuant to this chapter.

     10.  The Commissioner may require a licensee to submit an item or pay a fee required by this section directly to the Commissioner or, if the licensee is required to register or voluntarily registers with the Registry, to the Commissioner through the Registry.

     Sec. 51.  NRS 645B.080 is hereby amended to read as follows:

     645B.080  1.  Each mortgage broker shall keep and maintain at all times at each location where the mortgage broker conducts business in this state complete and suitable records of all mortgage transactions made by the mortgage broker at that location. Each mortgage broker shall also keep and maintain at all times at each such location all original books, papers and data, or copies thereof, clearly reflecting the financial condition of the business of the mortgage broker.

     2.  Each mortgage broker shall submit to the Commissioner each month a report of the mortgage broker’s activity for the previous month. The report must:

 


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

ê2011 Statutes of Nevada, Page 3614 (Chapter 522, AB 77)ê

 

     (a) Specify the volume of loans arranged by the mortgage broker for the month or state that no loans were arranged in that month;

     (b) Include any information required pursuant to NRS 645B.260 or pursuant to the regulations adopted by the Commissioner; and

     (c) Be submitted to the Commissioner by the 15th day of the month following the month for which the report is made.

     3.  The Commissioner may adopt regulations prescribing accounting procedures for mortgage brokers handling trust accounts and the requirements for keeping records relating to such accounts.

     4.  Each mortgage broker who is required to register or voluntarily registers with the Registry shall submit to the Registry and the Commissioner a report of condition or any other report required by the Registry in the form and at the time required by the Registry.

     Sec. 52.  NRS 645B.085 is hereby amended to read as follows:

     645B.085  1.  Except as otherwise provided in this section, not later than [120] 90 days after the last day of each fiscal year for a mortgage broker, the mortgage broker shall submit to the Commissioner a financial statement that:

     (a) Is dated not earlier than the last day of the fiscal year; and

     (b) Has been prepared from the books and records of the mortgage broker by an independent certified public accountant who holds a [permit] license to [engage in the] practice [of public accounting] in this State or in any other state that has not been revoked or suspended.

     2.  [The] Unless otherwise prohibited by the Registry, the Commissioner may grant a reasonable extension for the submission of a financial statement pursuant to this section if a mortgage broker requests such an extension before the date on which the financial statement is due.

     3.  If a mortgage broker maintains any accounts described in subsection 1 of NRS 645B.175, the financial statement submitted pursuant to this section must be audited. If a mortgage broker maintains any accounts described in subsection 1 or 4 of NRS 645B.175, those accounts must be audited. [The public accountant who prepares the report of an audit shall submit a copy of the report to the Commissioner at the same time that the public accountant submits the report to the mortgage broker.]

     4.  The Commissioner shall adopt regulations prescribing the scope of an audit conducted pursuant to subsection 3.

     Sec. 53.  NRS 645B.092 is hereby amended to read as follows:

     645B.092  1.  Except as otherwise provided in this section and NRS 239.0115, a complaint filed with the Commissioner, all documents and other information filed with the complaint and all documents and other information compiled as a result of an investigation conducted to determine whether to initiate disciplinary action are confidential.

     2.  The complaint or other document filed by the Commissioner to initiate disciplinary action and all documents and information considered by the Commissioner when determining whether to impose discipline are public records.

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

     4.  The Commissioner may disclose any document or information made confidential under subsection 1 to the party against whom the complaint is made, a licensing board or agency, the Registry or any other governmental agency, including, without limitation, a law enforcement agency.

 


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

ê2011 Statutes of Nevada, Page 3615 (Chapter 522, AB 77)ê

 

complaint is made, a licensing board or agency, the Registry or any other governmental agency, including, without limitation, a law enforcement agency.

     Sec. 54.  NRS 645B.095 is hereby amended to read as follows:

     645B.095  1.  As used in this section, “change of control” means:

     (a) A transfer of voting stock which results in giving a person, directly or indirectly, the power to direct the management and policy of a mortgage broker; or

     (b) A transfer of at least 25 percent of the outstanding voting stock of a mortgage broker.

     2.  The Commissioner must be notified in writing of a transfer of [5] 10 percent or more of the outstanding voting stock of a mortgage broker at least 15 days before such a transfer and must approve a transfer of voting stock of a mortgage broker which constitutes a change of control.

     3.  The person who acquires stock resulting in a change of control of the mortgage broker shall apply to the Commissioner for approval of the transfer. The application must contain information which shows that the requirements of this chapter and the Registry, if applicable, for obtaining a license will be satisfied after the change of control. Except as otherwise provided in subsection 4, the Commissioner shall conduct an investigation to determine whether those requirements will be satisfied. If, after the investigation, the Commissioner denies the application, the Commissioner may forbid the applicant from participating in the business of the mortgage broker.

     4.  A mortgage broker may submit a written request to the Commissioner to waive an investigation pursuant to subsection 3. The Commissioner may grant a waiver if the applicant has undergone a similar investigation by a state or federal agency in connection with the licensing of or his or her employment with a financial institution.

     Sec. 55.  NRS 645B.165 is hereby amended to read as follows:

     645B.165  1.  Except as otherwise permitted by law and as otherwise provided in subsection 3, the amount of any advance fee, salary, deposit or money paid to a mortgage broker and his or her mortgage agents or any other person to obtain a loan which will be secured by a lien on real property must be placed in escrow pending completion of the loan or a commitment for the loan.

     2.  The amount held in escrow pursuant to subsection 1 must be released:

     (a) Upon completion of the loan or commitment for the loan, to the mortgage broker or other person to whom the advance fee, salary, deposit or money was paid.

     (b) If the loan or commitment for the loan fails, to the person who made the payment.

     3.  Advance payments to cover reasonably estimated costs paid to third persons are excluded from the provisions of subsections 1 and 2 if the person making them first signs a written agreement which specifies the estimated costs by item and the estimated aggregate cost, and which recites that money advanced for costs will not be refunded. If an itemized service is not performed and the estimated cost thereof is not refunded, the recipient of the advance payment is subject to the penalties provided in NRS 645B.960.

 


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

ê2011 Statutes of Nevada, Page 3616 (Chapter 522, AB 77)ê

 

     Sec. 56.  NRS 645B.170 is hereby amended to read as follows:

     645B.170  1.  All money paid to a mortgage broker and his or her mortgage agents for payment of taxes or insurance premiums on real property which secures any loan arranged by the mortgage broker must be deposited in an insured depository financial institution and kept separate, distinct and apart from money belonging to the mortgage broker. Such money, when deposited, is to be designated as an “impound trust account” or under some other appropriate name indicating that the accounts are not the money of the mortgage broker.

     2.  The mortgage broker has a fiduciary duty to each debtor with respect to the money in an impound trust account.

     3.  The mortgage broker shall, upon reasonable notice, account to any debtor whose real property secures a loan arranged by the mortgage broker for any money which that person has paid to the mortgage broker for the payment of taxes or insurance premiums on the real property.

     4.  The mortgage broker shall, upon reasonable notice, account to the Commissioner for all money in an impound trust account.

     5.  A mortgage broker shall:

     (a) Require contributions to an impound trust account in an amount reasonably necessary to pay the obligations as they become due.

     (b) Undertake an annual review of an impound trust account.

     (c) Within 30 days after the completion of the annual review of an impound trust account, notify the debtor:

           (1) Of the amount by which the contributions exceed the amount reasonably necessary to pay the annual obligations due from the account; and

           (2) That the debtor may specify the disposition of the excess money within 20 days after receipt of the notice. If the debtor fails to specify such a disposition within that time, the mortgage broker shall maintain the excess money in the account.

Ê This subsection does not prohibit a mortgage broker from requiring additional amounts to be paid into an impound trust account to recover a deficiency that exists in the account.

     6.  A mortgage broker shall not make payments from an impound trust account in a manner that causes a policy of insurance to be cancelled or causes property taxes or similar payments to become delinquent.

     Sec. 57.  NRS 645B.186 is hereby amended to read as follows:

     645B.186  1.  If a licensee or a relative of the licensee is licensed as, conducts business as or holds a controlling interest or position in:

     (a) A construction control;

     (b) An escrow agency or escrow agent; or

     (c) A title agent, a title insurer or an escrow officer of a title agent or title insurer,

Ê the licensee shall fully disclose his or her status as, connection to or relationship with the construction control, escrow agency, escrow agent, title agent, title insurer or escrow officer to each investor, and the licensee shall not require, as a condition to an investor acquiring ownership of or a beneficial interest in a loan secured by a lien on real property, that the investor transact business with or use the services of the construction control, escrow agency, escrow agent, title agent, title insurer or escrow officer or that the investor authorize the licensee to transact business with or use the services of the construction control, escrow agency, escrow agent, title agent, title insurer or escrow officer on behalf of the investor.

 


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

ê2011 Statutes of Nevada, Page 3617 (Chapter 522, AB 77)ê

 

     2.  For the purposes of this section, a person shall be deemed to hold a controlling interest or position if the person:

     (a) Owns or controls a majority of the voting stock or holds any other controlling interest, directly or indirectly, that gives the person the power to direct management or determine policy; or

     (b) Is a partner, officer, director or trustee.

     3.  As used in this section, “licensee” means:

     (a) A person who is licensed as a mortgage broker or mortgage agent pursuant to this chapter; and

     (b) Any general partner, officer or director of such a person.

     Sec. 58.  NRS 645B.305 is hereby amended to read as follows:

     645B.305  A mortgage broker shall ensure that each loan secured by a lien on real property for which he or she engages in activity as a mortgage broker [:

     1.  Includes] includes a disclosure:

     [(a)] 1.  Describing, in a specific dollar amount, all fees earned by the mortgage broker;

     [(b)] 2.  Explaining which party is responsible for the payment of the fees described in [paragraph (a);] subsection 1; and

     [(c)] 3.  Explaining the probable impact the fees described in [paragraph (a)] subsection 1 may have on the terms of the loan, including, without limitation, the interest rates.

     [2.  If a private investor has acquired a beneficial interest in the loan, includes a fee for servicing the loan which must be specified in the loan. The fee must be in an amount reasonably necessary to pay the cost of servicing the loan.]

     Sec. 59.  NRS 645B.307 is hereby amended to read as follows:

     645B.307  A mortgage broker shall ensure that each loan secured by a lien on real property for which he or she engages in activity as a mortgage broker includes [the] :

     1.  If the mortgage broker is not registered with the Registry, the license number of the mortgage broker [.] ; or

     2.  Any identifying number issued by the Registry.

     Sec. 60.  NRS 645B.400 is hereby amended to read as follows:

     645B.400  A person shall not act as or provide any of the services of a mortgage agent or otherwise engage in, carry on or hold himself or herself out as engaging in or carrying on the activities of a mortgage agent unless the person [has] :

     1.  Has a license as a mortgage agent issued pursuant to NRS 645B.410.

     2.  Is an employee of or associated with a mortgage broker or mortgage banker.

     3.  If the person is required to register with the Registry, is registered with and provides any identifying number issued by the Registry.

     Sec. 61.  NRS 645B.410 is hereby amended to read as follows:

     645B.410  1.  To obtain a license as a mortgage agent, a person must:

     (a) Be a natural person;

     (b) File a written application for a license as a mortgage agent with the Office of the Commissioner;

     (c) Comply with the applicable requirements of this chapter; [and]

     (d) Pay an application fee set by the Commissioner of not more than $185 [.] ; and

 


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

ê2011 Statutes of Nevada, Page 3618 (Chapter 522, AB 77)ê

 

     (e) Be:

           (1) Employed by, or have received an offer of employment from, a mortgage broker;

           (2) Employed by, or have received an offer of employment from, a mortgage banker;

           (3) Associated with or employed by, or have received an offer of a contract with or an offer of employment from, a person who holds a certificate of exemption pursuant to NRS 645B.016; or

           (4) A loan processor who is not an employee and who is associated with, or has received an offer of a contract with, a mortgage broker, mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016.

     2.  An application for a license as a mortgage agent must:

     (a) State the name and residence address of the applicant;

     (b) Include a provision by which the applicant gives written consent to the Division and, if applicable, the Registry for an investigation of his or her credit history, criminal history and background;

     (c) [Include] Unless fingerprints were submitted to the Registry, include a complete set of fingerprints which the Division may forward to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report;

     (d) [If not licensed as a mortgage broker or mortgage banker pursuant to this chapter or chapter 645E of NRS, include] Include a verified statement from the mortgage broker , [or] mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016 with whom the applicant will be associated or employed that expresses the intent of that mortgage broker , [or] mortgage banker or exempt person to employ or associate the applicant with the mortgage broker , [or] mortgage banker or exempt person and to be responsible for the activities of the applicant as a mortgage agent; and

     (e) Include any other information or supporting materials required pursuant to the regulations adopted by the Commissioner , [or] by an order of the Commissioner [.] or, if applicable, by the Registry. Such information or supporting materials may include, without limitation, other forms of identification of the person.

     3.  Except as otherwise provided [in this chapter,] by law, the Commissioner shall issue a license as a mortgage agent to an applicant if:

     (a) The application is verified by the Commissioner and complies with the applicable requirements of this chapter [;] , other applicable law and, if applicable, the Registry; and

     (b) The applicant:

           (1) Has not been convicted of, or entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court within the 7 years immediately preceding the date of the application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, [or] money laundering [;] or moral turpitude;

           (2) Has never had a license or registration as a mortgage agent, mortgage banker, mortgage broker or residential mortgage loan originator revoked in this State or any other jurisdiction, or had a financial services license [suspended or] revoked within the immediately preceding 10 years;

 


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

ê2011 Statutes of Nevada, Page 3619 (Chapter 522, AB 77)ê

 

           (3) Has not made a false statement of material fact on his or her application;

           (4) Has not violated any provision of this chapter or chapter 645E of NRS, a regulation adopted pursuant thereto or an order of the Commissioner; and

           (5) Has demonstrated financial responsibility, character and general fitness so as to command the confidence of the community and warrant a determination that the applicant will operate honestly, fairly and efficiently for the purposes of this chapter.

     4.  Money received by the Commissioner pursuant to this section is in addition to any fee required to be paid to the Registry and must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     5.  The Commissioner may require the submission of an item or the payment of a fee required by this section directly to the Commissioner or, if the person submitting the item or fee is required to register or voluntarily registers with the Registry, to the Commissioner through the Registry.

     Sec. 62.  NRS 645B.430 is hereby amended to read as follows:

     645B.430  1.  A license as a mortgage agent issued pursuant to NRS 645B.410 expires [1 year after the date the license is issued,] each year on December 31, unless it is renewed. To renew a license as a mortgage agent, the holder of the license must continue to meet the requirements of subsection 3 of NRS 645B.410 and must submit to the Commissioner [each year,] on or after November 1 and on or before [the date the license expires:] December 31 of each year, or on a date otherwise specified by the Commissioner by regulation:

     (a) An application for renewal;

     (b) Except as otherwise provided in this section, satisfactory proof that the holder of the license as a mortgage agent attended at least 10 hours of certified courses of continuing education during the 12 months immediately preceding the date on which the license expires; and

     (c) A renewal fee set by the Commissioner of not more than $170.

     2.  If the holder of the license as a mortgage agent fails to submit any item required pursuant to subsection 1 to the Commissioner [each year] on or after November 1 and on or before [the date the license expires,] December 31 of any year, unless a different date is specified by the Commissioner by regulation, the license is cancelled [.] as of December 31 of that year. The Commissioner may reinstate a cancelled license if the holder of the license submits to the Commissioner [:] on or before February 28 of the following year:

     (a) An application for renewal;

     (b) The fee required to renew the license pursuant to this section; and

     (c) A reinstatement fee of $75.

     3.  [To be issued a duplicate copy of a license as a mortgage agent, a person must make a satisfactory showing of its loss and pay a fee of $10.

     4.]  To change the mortgage broker with whom the mortgage agent is associated, a person must pay a fee of $10.

     [5.] 4.  Money received by the Commissioner pursuant to this section is in addition to any fee that must be paid to the Registry and must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     [6.  The Commissioner may provide by regulation that any hours of a certified course of continuing education attended during a 12-month period, but not needed to satisfy a requirement set forth in this section for the 12-month period in which the hours were taken, may be used to satisfy a requirement set forth in this section for a later 12-month period.

 


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

ê2011 Statutes of Nevada, Page 3620 (Chapter 522, AB 77)ê

 

12-month period in which the hours were taken, may be used to satisfy a requirement set forth in this section for a later 12-month period.

     7.] 5.  The Commissioner may require a licensee to submit an item or pay a fee required by this section directly to the Division or, if the licensee is required to register or voluntarily registers with the Registry, to the Division through the Registry.

     6.  As used in this section, “certified course of continuing education” has the meaning ascribed to it in NRS 645B.051.

     Sec. 63.  NRS 645B.450 is hereby amended to read as follows:

     645B.450  1.  A person licensed as a mortgage agent pursuant to the provisions of NRS 645B.410 may not be associated with or employed by more than one licensed or registered mortgage broker or mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016 at the same time.

     2.  A mortgage broker , mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016 shall not associate with or employ a person as a mortgage agent or authorize a person to be associated with the mortgage broker , mortgage banker or exempt person as a mortgage agent if the mortgage agent is not licensed with the Division pursuant to NRS 645B.410. Before allowing a mortgage agent to act on its behalf, a mortgage broker, mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016 must:

     (a) Enter its sponsorship of the mortgage agent with the Registry; or

     (b) If the mortgage agent is not required to be registered with the Registry, notify the Division of its sponsorship of the mortgage agent.

     3.  If a mortgage agent terminates his or her association or employment with a mortgage broker , mortgage banker or person who holds a certificate of exemption pursuant to NRS 645B.016 for any reason, the mortgage broker , mortgage banker or exempt person shall, not later than the third business day following the date of termination:

     (a) [Deliver] Remove its sponsorship of the mortgage agent from the Registry; or

     (b) If the mortgage agent is not required to be registered with the Registry, deliver to the Division and to the mortgage agent [or send by certified mail to] at the last known residence address of the mortgage agent a written statement which [advises the mortgage agent that the termination is being reported to the Division; and

     (b) Deliver or send by certified mail to the Division:

           (1) The license or license number of the mortgage agent;

           (2) A written statement of the circumstances surrounding the termination; and

           (3) A copy of the written statement that the mortgage broker delivers or mails to the mortgage agent pursuant to paragraph (a).] includes the name, address and license number of the mortgage agent and a statement of the circumstances of the termination.

     Sec. 64.  NRS 645B.490 is hereby amended to read as follows:

     645B.490  Except as otherwise required by the Registry for persons who are required to register or voluntarily register with the Registry:

     1.  Any mortgage broker or mortgage agent licensed under the provisions of this chapter who is called into military service of the United States shall, at his or her request, be relieved from compliance with the provisions of this chapter and placed on inactive status for the period of such military service and for a period of 6 months after discharge therefrom.

 


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

ê2011 Statutes of Nevada, Page 3621 (Chapter 522, AB 77)ê

 

provisions of this chapter and placed on inactive status for the period of such military service and for a period of 6 months after discharge therefrom.

     2.  At any time within 6 months after termination of such service, if the mortgage broker or mortgage agent complies with the provisions of subsection 1, the mortgage broker or mortgage agent may be reinstated, without having to meet any qualification or requirement other than the payment of the reinstatement fee, as provided in NRS 645B.050 or 645B.430, and the mortgage broker or mortgage agent is not required to make payment of the renewal fee for the current year.

     3.  Any mortgage broker or mortgage agent seeking to qualify for reinstatement, as provided in subsections 1 and 2, must present a certified copy of his or her honorable discharge or certificate of satisfactory service to the Commissioner.

     Sec. 65.  NRS 645B.600 is hereby amended to read as follows:

     645B.600  1.  A person may file with the Commissioner a complaint alleging that another person has violated a provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner.

     2.  A complaint filed pursuant to this section must:

     (a) Be in writing;

     (b) Be signed by the person filing the complaint or the [authorized representative] designee of the person filing the complaint;

     (c) Contain an address and a telephone number for the person filing the complaint or the [authorized representative] designee of the person filing the complaint;

     (d) Describe the nature of the alleged violation in as much detail as possible;

     (e) Include as exhibits copies of all documentation supporting the complaint; and

     (f) Include any other information or supporting materials required by the regulations adopted by the Commissioner or by an order of the Commissioner.

     Sec. 66.  NRS 645B.670 is hereby amended to read as follows:

     645B.670  Except as otherwise provided in NRS 645B.690:

     1.  For each violation committed by an applicant for a license issued pursuant to this chapter, whether or not the applicant is issued a license, the Commissioner may impose upon the applicant an administrative fine of not more than $25,000 if the applicant:

     (a) Has knowingly made or caused to be made to the Commissioner any false representation of material fact;

     (b) Has suppressed or withheld from the Commissioner any information which the applicant possesses and which, if submitted by the applicant, would have rendered the applicant ineligible to be licensed pursuant to the provisions of this chapter; or

     (c) Has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner in completing and filing his or her application for a license or during the course of the investigation of his or her application for a license.

     2.  For each violation committed by a mortgage broker, the Commissioner may impose upon the mortgage broker an administrative fine of not more than $25,000, may suspend, revoke or place conditions upon the mortgage broker’s license, or may do both, if the mortgage broker, whether or not acting as such:

 


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

ê2011 Statutes of Nevada, Page 3622 (Chapter 522, AB 77)ê

 

     (a) Is insolvent;

     (b) Is grossly negligent or incompetent in performing any act for which the mortgage broker is required to be licensed pursuant to the provisions of this chapter;

     (c) Does not conduct his or her business in accordance with law or has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner;

     (d) Is in such financial condition that the mortgage broker cannot continue in business with safety to his or her customers;

     (e) Has made a material misrepresentation in connection with any transaction governed by this chapter;

     (f) Has suppressed or withheld from a client any material facts, data or other information relating to any transaction governed by the provisions of this chapter which the mortgage broker knew or, by the exercise of reasonable diligence, should have known;

     (g) Has knowingly made or caused to be made to the Commissioner any false representation of material fact or has suppressed or withheld from the Commissioner any information which the mortgage broker possesses and which, if submitted by the mortgage broker, would have rendered the mortgage broker ineligible to be licensed pursuant to the provisions of this chapter;

     (h) Has failed to account to persons interested for all money received for a trust account;

     (i) Has refused to permit an examination by the Commissioner of his or her books and affairs or has refused or failed, within a reasonable time, to furnish any information or make any report that may be required by the Commissioner pursuant to the provisions of this chapter or a regulation adopted pursuant to this chapter;

     (j) Has been convicted of, or entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court within the 7 years immediately preceding the date of the application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering.

     (k) Has refused or failed to pay, within a reasonable time, any fees, assessments, costs or expenses that the mortgage broker is required to pay pursuant to this chapter or a regulation adopted pursuant to this chapter;

     (l) Has failed to satisfy a claim made by a client which has been reduced to judgment;

     (m) Has failed to account for or to remit any money of a client within a reasonable time after a request for an accounting or remittal;

     (n) Has commingled the money or other property of a client with his or her own or has converted the money or property of others to his or her own use;

     (o) Has engaged in any other conduct constituting a deceitful, fraudulent or dishonest business practice;

     (p) Has repeatedly violated the policies and procedures of the mortgage broker;

     (q) Has failed to exercise reasonable supervision over the activities of a mortgage agent as required by NRS 645B.460;

     (r) Has instructed a mortgage agent to commit an act that would be cause for the revocation of the license of the mortgage broker, whether or not the mortgage agent commits the act;

 


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

ê2011 Statutes of Nevada, Page 3623 (Chapter 522, AB 77)ê

 

     (s) Has employed a person as a mortgage agent or authorized a person to be associated with the mortgage broker as a mortgage agent at a time when the mortgage broker knew or, in light of all the surrounding facts and circumstances, reasonably should have known that the person:

           (1) Had been convicted of, or entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court within the 7 years immediately preceding the date of application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering; or

           (2) Had a license or registration as a mortgage agent, mortgage banker, mortgage broker or residential mortgage loan originator revoked in this State or any other jurisdiction or had a financial services license or registration [suspended or] revoked within the immediately preceding 10 years;

     (t) Has violated NRS 645C.557; or

     (u) Has failed to pay a tax as required pursuant to the provisions of chapter 363A of NRS . [; or

     (v) Has not conducted verifiable business as a mortgage broker for 12 consecutive months, except in the case of a new applicant. The Commissioner shall determine whether a mortgage broker is conducting business by examining the monthly reports of activity submitted by the mortgage broker or by conducting an examination of the mortgage broker.]

     3.  For each violation committed by a mortgage agent, the Commissioner may impose upon the mortgage agent an administrative fine of not more than $25,000, may suspend, revoke or place conditions upon the mortgage agent’s license, or may do both, if the mortgage agent, whether or not acting as such:

     (a) Is grossly negligent or incompetent in performing any act for which the mortgage agent is required to be licensed pursuant to the provisions of this chapter;

     (b) Has made a material misrepresentation in connection with any transaction governed by this chapter;

     (c) Has suppressed or withheld from a client any material facts, data or other information relating to any transaction governed by the provisions of this chapter which the mortgage agent knew or, by the exercise of reasonable diligence, should have known;

     (d) Has knowingly made or caused to be made to the Commissioner any false representation of material fact or has suppressed or withheld from the Commissioner any information which the mortgage agent possesses and which, if submitted by the mortgage agent, would have rendered the mortgage agent ineligible to be licensed pursuant to the provisions of this chapter;

     (e) Has been convicted of, or entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court within the 7 years immediately preceding the date of the application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering.

     (f) Has failed to account for or to remit any money of a client within a reasonable time after a request for an accounting or remittal;

     (g) Has commingled the money or other property of a client with his or her own or has converted the money or property of others to his or her own use;

 


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

ê2011 Statutes of Nevada, Page 3624 (Chapter 522, AB 77)ê

 

     (h) Has engaged in any other conduct constituting a deceitful, fraudulent or dishonest business practice;

     (i) Has violated NRS 645C.557;

     (j) Has repeatedly violated the policies and procedures of the mortgage broker with whom the mortgage agent is associated or by whom he or she is employed; or

     (k) Has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner or has assisted or offered to assist another person to commit such a violation.

     Sec. 67.  NRS 645B.690 is hereby amended to read as follows:

     645B.690  1.  If a person offers or provides any of the services of a mortgage broker or mortgage agent or otherwise engages in, carries on or holds himself or herself out as engaging in or carrying on the business of a mortgage broker or mortgage agent and, at the time:

     (a) The person was required to have a license pursuant to this chapter and the person did not have such a license; [or]

     (b) The person was required to be registered with the Registry and the person was not so registered; or

     (c) The person’s license was suspended or revoked pursuant to this chapter,

Ê the Commissioner shall impose upon the person an administrative fine of not more than $50,000 for each violation and, if the person has a license, the Commissioner may suspend or revoke it.

     2.  If a mortgage broker violates any provision of subsection 1 of NRS 645B.080 and the mortgage broker fails, without reasonable cause, to remedy the violation within 20 business days after being ordered by the Commissioner to do so or within such later time as prescribed by the Commissioner, or if the Commissioner orders a mortgage broker to provide information, make a report or permit an examination of his or her books or affairs pursuant to this chapter and the mortgage broker fails, without reasonable cause, to comply with the order within 20 business days or within such later time as prescribed by the Commissioner, the Commissioner shall:

     (a) Impose upon the mortgage broker an administrative fine of not more than [$10,000] $25,000 for each violation;

     (b) Suspend or revoke the license of the mortgage broker; and

     (c) Conduct a hearing to determine whether the mortgage broker is conducting business in an unsafe and injurious manner that may result in danger to the public and whether it is necessary for the Commissioner to take possession of the property of the mortgage broker pursuant to NRS 645B.630.

     3.  If a mortgage broker:

     (a) Makes or offers for sale in this State any investments in promissory notes secured by liens on real property; and

     (b) Receives the lowest possible rating on two consecutive annual or biennial examinations pursuant to NRS 645B.060,

Ê the Commissioner shall suspend or revoke the license of the mortgage broker.

     Sec. 68.  NRS 645B.955 is hereby amended to read as follows:

     645B.955  1.  [The holder of] A person who engages in an activity for which a license as a mortgage broker or mortgage agent [may be] is required pursuant to this chapter, without regard to whether such a person is licensed pursuant to this chapter, may be required by the Commissioner to pay restitution to any person who has suffered an economic loss as a result of a violation of the provisions of this chapter or any regulation adopted pursuant thereto.

 


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

ê2011 Statutes of Nevada, Page 3625 (Chapter 522, AB 77)ê

 

pay restitution to any person who has suffered an economic loss as a result of a violation of the provisions of this chapter or any regulation adopted pursuant thereto.

     2.  Notwithstanding the provision of paragraph (m) of subsection 1 of NRS 622A.120, payment of restitution pursuant to subsection 1 shall be done in a manner consistent with the provisions of chapter 622A of NRS.

     Sec. 69.  Chapter 645E of NRS is hereby amended by adding thereto a new section to read as follows:

     “Nationwide Mortgage Licensing System and Registry” or “Registry” has the meaning ascribed to it in NRS 645B.0128.

     Sec. 70.  NRS 645E.010 is hereby amended to read as follows:

     645E.010  As used in this chapter, unless the context otherwise requires, the words and terms defined in NRS 645E.020 to 645E.100, inclusive, and section 69 of this act have the meanings ascribed to them in those sections.

     Sec. 71.  NRS 645E.040 is hereby amended to read as follows:

     645E.040  “Commercial property” means any real property which is located in this state and which is [not] neither used [for a residential dwelling or dwellings intended for occupancy by four or fewer families.] as a dwelling nor upon which a dwelling is constructed or intended to be constructed. For the purposes of this section, “dwelling” has the meaning ascribed to it in section 103(v) of the federal Truth in Lending Act, 15 U.S.C. § 1602(v).

     Sec. 72.  NRS 645E.150 is hereby amended to read as follows:

     645E.150  Except as otherwise provided in NRS 645E.160, the Secure and Fair Enforcement for Mortgage Licensing Act of 2008, 12 U.S.C. §§ 5101 et seq., and any regulations adopted pursuant thereto or other applicable law, the provisions of this chapter do not apply to:

     1.  Any person doing business under the laws of this State, any other state or the United States relating to banks, savings banks, trust companies, savings and loan associations, industrial loan companies, credit unions, thrift companies or insurance companies, including, without limitation, a subsidiary or a holding company of such a bank, company, association or union.

     2.  A real estate investment trust, as defined in 26 U.S.C. § 856, unless the business conducted in this State is not subject to supervision by the regulatory authority of the other jurisdiction, in which case licensing pursuant to this chapter is required.

     3.  An employee benefit plan, as defined in 29 U.S.C. § 1002(3), if the loan is made directly from money in the plan by the plan’s trustee.

     4.  An attorney at law rendering services in the performance of his or her duties as an attorney at law.

     5.  A real estate broker rendering services in the performance of his or her duties as a real estate broker.

     6.  Any person doing any act under an order of any court.

     7.  Any one natural person, or husband and wife, who provides money for investment in commercial loans secured by a lien on real property, on his or her own account, unless such a person makes a loan secured by a lien on real property using his or her own money and assigns all or a part of his or her interest in the loan to another person, other than his or her spouse or child, within [5] 3 years after the date on which the loan is made or the deed of trust is recorded, whichever occurs later.

 


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

ê2011 Statutes of Nevada, Page 3626 (Chapter 522, AB 77)ê

 

     8.  A natural person who only offers or negotiates terms of a residential mortgage loan:

     (a) With or on behalf of an immediate family member of the person; or

     (b) Secured by a dwelling that served as the person’s residence.

     [8.] 9.  Agencies of the United States and of this State and its political subdivisions, including the Public Employees’ Retirement System.

     [9.] 10.  A seller of real property who offers credit secured by a mortgage of the property sold.

     11.  A nonprofit agency or organization:

     (a) Which provides self-help housing for a borrower who has provided part of the labor to construct the dwelling securing the borrower’s loan;

     (b) Which does not charge or collect origination fees in connection with the origination of residential mortgage loans;

     (c) Which only makes residential mortgage loans at an interest rate of 0 percent per annum;

     (d) Whose volunteers, if any, do not receive compensation for their services in the construction of a dwelling; and

     (e) Which does not profit from the sale of a dwelling to a borrower.

     12.  A housing counseling agency approved by the United States Department of Housing and Urban Development.

     Sec. 73.  NRS 645E.160 is hereby amended to read as follows:

     645E.160  1.  Except as otherwise provided in subsection 2, a person who claims an exemption from the provisions of this chapter pursuant to subsection 1 of NRS 645E.150 must:

     (a) File a written application for a certificate of exemption with the Office of the Commissioner;

     (b) Pay the fee required pursuant to NRS 645E.280;

     (c) Include with the written application satisfactory proof that the person meets the requirements of subsection 1 of NRS 645E.150; and

     (d) Provide evidence to the Commissioner that the person is duly licensed to conduct his or her business, including, if applicable, the right to transact mortgage loans, and such license is in good standing pursuant to the laws of this State, any other state or the United States.

     2.  The provisions of subsection 1 do not apply to the extent preempted by federal law.

     3.  The Commissioner may require a person who claims an exemption from the provisions of this chapter pursuant to subsections 2 to [9,] 12, inclusive, of NRS 645E.150 to:

     (a) File a written application for a certificate of exemption with the Office of the Commissioner;

     (b) Pay the fee required pursuant to NRS 645E.280; and

     (c) Include with the written application satisfactory proof that the person meets the requirements of at least one of those exemptions.

     4.  A certificate of exemption expires automatically if, at any time, the person who claims the exemption no longer meets the requirements of at least one exemption set forth in the provisions of NRS 645E.150.

     5.  If a certificate of exemption expires automatically pursuant to this section, the person shall not provide any of the services of a mortgage banker or otherwise engage in, carry on or hold himself or herself out as engaging in or carrying on the business of a mortgage banker unless the person applies for and is issued:

 


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

ê2011 Statutes of Nevada, Page 3627 (Chapter 522, AB 77)ê

 

     (a) A license as a mortgage banker pursuant to this chapter; or

     (b) Another certificate of exemption.

     6.  The Commissioner may impose upon a person who is required to apply for a certificate of exemption or who holds a certificate of exemption an administrative fine of not more than $10,000 for each violation that he or she commits, if the person:

     (a) Has knowingly made or caused to be made to the Commissioner any false representation of material fact;

     (b) Has suppressed or withheld from the Commissioner any information which the person possesses and which, if submitted by him or her, would have rendered the person ineligible to hold a certificate of exemption; or

     (c) Has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner that applies to a person who is required to apply for a certificate of exemption or who holds a certificate of exemption.

     7.  A person who is exempt from the requirements of this chapter may file a written application for a certificate of exemption with the Office of the Commissioner for the purposes of complying with the requirements of the Registry or enabling a mortgage agent to comply with the requirements of the Registry.

     8.  The Commissioner may require an applicant or person described in subsection 7 to submit the information or pay the fee directly to the Division or, if the applicant or person is required to register or voluntarily registers with the Registry, to the Division through the Registry.

     9.  An application filed pursuant to subsection 7 does not affect the applicability of this chapter to such an applicant or person.

     Sec. 74.  NRS 645E.170 is hereby amended to read as follows:

     645E.170  1.  A person may apply to the Commissioner for an exemption from the provisions of this chapter governing the making of a loan of money [.] only for a loan secured by commercial property.

     2.  The Commissioner may grant the exemption if the Commissioner finds that:

     (a) The making of the loan would not be detrimental to the financial condition of the lender or the debtor;

     (b) The lender or the debtor has established a record of sound performance, efficient management, financial responsibility and integrity;

     (c) The making of the loan is likely to increase the availability of capital for a sector of the state economy; and

     (d) The making of the loan is not detrimental to the public interest.

     3.  The Commissioner:

     (a) May revoke an exemption unless the loan for which the exemption was granted has been made; and

     (b) Shall issue a written statement setting forth the reasons for his or her decision to grant, deny or revoke an exemption.

     Sec. 75.  NRS 645E.200 is hereby amended to read as follows:

     645E.200  1.  A person who wishes to be licensed as a mortgage banker must file a written application for a license with the Office of the Commissioner and pay the fee required pursuant to NRS 645E.280. An application for a license as a mortgage banker must:

     (a) Be verified.

     (b) State the name, residence address and business address of the applicant and the location of each principal office and branch office at which the mortgage banker will conduct business in this State, including, without limitation, any office or other place of business located outside this State from which the mortgage banker will conduct business in this State [.]

 


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

ê2011 Statutes of Nevada, Page 3628 (Chapter 522, AB 77)ê

 

the mortgage banker will conduct business in this State, including, without limitation, any office or other place of business located outside this State from which the mortgage banker will conduct business in this State [.] and any office or other place of business which the applicant maintains as a corporate or home office.

     (c) State the name under which the applicant will conduct business as a mortgage banker.

     (d) If the applicant is not a natural person, list the name, residence address and business address of each person who will have an interest in the mortgage banker as a principal, partner, officer, director or trustee, specifying the capacity and title of each such person.

     (e) Indicate the general plan and character of the business.

     (f) State the length of time the applicant has been engaged in the business of a mortgage banker.

     (g) Include a financial statement of the applicant.

     (h) Include a complete set of fingerprints for each natural person who is a principal, partner, officer, director or trustee of the applicant which the Division may forward to the Central Repository for Nevada Records of Criminal History for submission to the Federal Bureau of Investigation for its report.

     (i) Include any other information required pursuant to the regulations adopted by the Commissioner or an order of the Commissioner.

     2.  If a mortgage banker will conduct business in this State at one or more branch offices, the mortgage banker must apply for a license for each such branch office.

     3.  Except as otherwise provided [in this chapter,] by law, the Commissioner shall issue a license to an applicant as a mortgage banker if:

     (a) The application is verified by the Commissioner and complies with the requirements of this chapter [;] , other applicable law and, if applicable, the Registry; and

     (b) The applicant and each general partner, officer or director of the applicant, if the applicant is a partnership, corporation or unincorporated association:

           (1) Has [a good reputation for honesty, trustworthiness and integrity and displays competence to transact the business of a mortgage banker in a manner which safeguards the interests of the general public. The applicant must submit satisfactory proof of these qualifications to the Commissioner.

           (2) Has not been convicted of, or entered a plea of nolo contendere to, a felony relating to the practice of mortgage bankers or any crime involving fraud, misrepresentation or moral turpitude.

           (3) Has not made a false statement of material fact on his or her application.

           (4) Has not had a license that was issued pursuant to the provisions of this chapter or chapter 645B of NRS suspended or revoked within the 10 years immediately preceding the date of application.

           (5) Has not had a license that was issued in any other state, district or territory of the United States or any foreign country suspended or revoked within the 10 years immediately preceding the date of application.

           (6)] demonstrated financial responsibility, character and general fitness so as to command the confidence of the community and warrant a determination that the applicant will operate honestly, fairly and efficiently for the purposes of this chapter. For the purposes of this subparagraph, the factors considered in determining whether a person has demonstrated financial responsibility include, without limitation:

 


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

ê2011 Statutes of Nevada, Page 3629 (Chapter 522, AB 77)ê

 

factors considered in determining whether a person has demonstrated financial responsibility include, without limitation:

                (I) Whether the person’s personal credit history indicates any adverse material items, including, without limitation, liens, judgments, disciplinary action, bankruptcies, foreclosures or failures to comply with court-approved payment plans;

                (II) The circumstances surrounding any adverse material items in the person’s personal credit history; and

                (III) Any instance of fraud, misrepresentation, dishonest business practices, the mishandling of trust funds or other types of comparable behavior.

           (2) Has not been convicted of, or entered or agreed to enter a plea of guilty or nolo contendere to, a felony in a domestic, foreign or military court within the 7 years immediately preceding the date of the application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering.

           (3) Has not made a false statement of material fact on the application.

           (4) Has never had a license or registration as a mortgage agent, mortgage banker, mortgage broker or residential mortgage loan originator revoked in this State or any other jurisdiction or had a financial services license revoked within the immediately preceding 10 years.

           (5) Has not violated any provision of this chapter or chapter 645B of NRS, a regulation adopted pursuant thereto or an order of the Commissioner.

     4.  If an applicant is a partnership, corporation or unincorporated association, the Commissioner may refuse to issue a license to the applicant if any member of the partnership or any officer or director of the corporation or unincorporated association has committed any act or omission that would be cause for refusing to issue a license to a natural person.

     5.  A person may apply for a license for an office or other place of business located outside this State from which the applicant will conduct business in this State if the applicant or a subsidiary or affiliate of the applicant has a license issued pursuant to this chapter for an office or other place of business located in this State and if the applicant submits with the application for a license a statement signed by the applicant which states that the applicant agrees to:

     (a) Make available at a location within this State the books, accounts, papers, records and files of the office or place of business located outside this State to the Commissioner or a representative of the Commissioner; or

     (b) Pay the reasonable expenses for travel, meals and lodging of the Commissioner or a representative of the Commissioner incurred during any investigation or examination made at the office or place of business located outside this State.

Ê The applicant must be allowed to choose between paragraph (a) or (b) in complying with the provisions of this subsection.

     Sec. 76.  NRS 645E.280 is hereby amended to read as follows:

     645E.280  1.  A license issued to a mortgage banker pursuant to this chapter expires each year on December 31, unless it is renewed. To renew a license, the licensee must submit to the Commissioner on or after November 1 and on or before December 31 of each year [:] , or on a date otherwise specified by the Commissioner by regulation:

 


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

ê2011 Statutes of Nevada, Page 3630 (Chapter 522, AB 77)ê

 

     (a) An application for renewal that complies with the requirements of this chapter; [and]

     (b) The fee required to renew the license pursuant to this section [.] ; and

     (c) All information required by the Commissioner or, if applicable, required by the Registry to complete the renewal.

     2.  If the licensee fails to submit any item required pursuant to subsection 1 to the Commissioner on or after November 1 and on or before December 31 of any year, unless a different date is specified by the Commissioner by regulation, the license is cancelled [.] as of December 31 of that year. The Commissioner may reinstate a cancelled license if the licensee submits to the Commissioner [:] on or before February 28 of the following year:

     (a) An application for renewal that complies with the requirements of this chapter;

     (b) The fee required to renew the license pursuant to this section; [and]

     (c) [A] Except as otherwise provided in this section, a reinstatement fee of not more than $200 [.] ; and

     (d) All information required to complete the reinstatement.

     3.  Except as otherwise provided in NRS 645E.160, a certificate of exemption issued pursuant to this chapter expires each year on December 31, unless it is renewed. To renew a certificate of exemption, a person must submit to the Commissioner on or after November 1 and on or before December 31 of each year [:] , or on a date otherwise specified by the Commissioner by regulation:

     (a) An application for renewal that complies with the requirements of this chapter; and

     (b) The fee required to renew the certificate of exemption.

     4.  If the person fails to submit any item required pursuant to subsection 3 to the Commissioner on or after November 1 and on or before December 31 of any year, unless a different date is specified by the Commissioner by regulation, the certificate of exemption is cancelled. Except as otherwise provided in NRS 645E.160, the Commissioner may reinstate a cancelled certificate of exemption if the person submits to the Commissioner [:] on or before February 28 of the following year:

     (a) An application for renewal that complies with the requirements of this chapter;

     (b) The fee required to renew the certificate of exemption; and

     (c) [A] Except as otherwise provided in this section, a reinstatement fee of not more than $100.

     5.  [A] Except as otherwise provided in this section, a person must pay the following fees to apply for, to be issued or to renew a license as a mortgage banker pursuant to this chapter:

     (a) To file an original application for a license, not more than $1,500 for the principal office and not more than $40 for each branch office. The person must also pay such additional expenses incurred in the process of investigation as the Commissioner deems necessary.

     (b) To be issued a license, not more than $1,000 for the principal office and not more than $60 for each branch office.

     (c) To renew a license, not more than $500 for the principal office and not more than $100 for each branch office.

 


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

ê2011 Statutes of Nevada, Page 3631 (Chapter 522, AB 77)ê

 

     6.  [A] Except as otherwise provided in this section, a person must pay the following fees to apply for or to renew a certificate of exemption pursuant to this chapter:

     (a) To file an application for a certificate of exemption, not more than $200.

     (b) To renew a certificate of exemption, not more than $100.

     7.  To be issued a duplicate copy of any license or certificate of exemption, a person must make a satisfactory showing of its loss and pay a fee of not more than $10.

     8.  Except as otherwise provided in this chapter, all fees received pursuant to this chapter are in addition to any fee required to be paid to the Registry and must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     9.  The Commissioner may, by regulation, adjust any fee set forth in this section if the Commissioner determines that such an adjustment is necessary for the Commissioner to carry out his or her duties pursuant to this chapter. The amount of any adjustment in a fee pursuant to this subsection must not exceed the amount determined to be necessary for the Commissioner to carry out his or her duties pursuant to this chapter.

     10.  The Commissioner may require a licensee to submit an item or pay a fee required by this section directly to the Division or, if the licensee is required to register or voluntarily registers with the Registry, to the Division through the Registry.

     Sec. 77.  NRS 645E.290 is hereby amended to read as follows:

     645E.290  1.  Any person licensed as a mortgage banker under this chapter and who engages in activities as a [residential mortgage] loan originator or who supervises a mortgage agent who engages in activities as a [residential mortgage] loan originator, and any employee or independent contractor of a mortgage banker who engages in activities as a [residential mortgage] loan originator, must be licensed as a mortgage agent pursuant to the provisions of NRS 645B.400 to 645B.460, inclusive.

     2.  As used in this section [, “residential mortgage loan originator” has the meaning ascribed to it in NRS 645B.01325.] :

     (a) “Clerical or ministerial tasks” means communication with a person to obtain, and the receipt, collection and distribution of, information necessary for the processing or underwriting of a loan.

     (b) “Loan originator” means a natural person who takes a loan application or offers or negotiates terms of a loan for compensation or other pecuniary gain. The term does not include:

           (1) A person who performs clerical or ministerial tasks as an employee at the direction of and subject to the supervision and instruction of a person licensed or exempt from licensing under this chapter, unless the person who performs such clerical or ministerial tasks is an independent contractor; or

           (2) A person solely involved in extensions of credit relating to timeshare plans, as that term is defined in 11 U.S.C. § 101(53D).

     Sec. 78.  NRS 645E.291 is hereby amended to read as follows:

     645E.291  1.  A mortgage banker shall exercise reasonable supervision over the activities of his or her mortgage agents and must also be licensed as a mortgage agent if required pursuant to NRS 645E.290. Such reasonable supervision must include, as appropriate:

 


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

ê2011 Statutes of Nevada, Page 3632 (Chapter 522, AB 77)ê

 

     (a) The establishment of written or oral policies and procedures for the mortgage agents;

     (b) The establishment of a system to review, oversee and inspect the activities of the mortgage agents, including, without limitation:

           (1) Transactions handled by the mortgage agents pursuant to this chapter;

           (2) Communications between the mortgage agents and a party to such a transaction;

           (3) Documents prepared by the mortgage agents that may have a material effect upon the rights or obligations of a party to such a transaction; and

           (4) The handling by the mortgage agents of any fee, deposit or money paid to the mortgage banker or the mortgage agents or held in trust by the mortgage banker or the mortgage agents pursuant to this chapter; and

     (c) The establishment of a system of reporting to the Division of any fraudulent activity engaged in by any of the mortgage agents.

     2.  The Commissioner shall allow a mortgage banker to take into consideration the total number of mortgage agents associated with or employed by the mortgage banker when the mortgage banker determines the form and extent of the policies and procedures for those mortgage agents and the system to review, oversee and inspect the activities of those mortgage agents.

     3.  The Commissioner may adopt regulations prescribing standards for determining whether a mortgage [broker] banker has exercised reasonable supervision over the activities of a mortgage agent pursuant to this section.

     Sec. 79.  NRS 645E.350 is hereby amended to read as follows:

     645E.350  1.  Each mortgage banker shall keep and maintain at all times at each location where the mortgage banker conducts business in this State complete and suitable records of all mortgage transactions made by the mortgage banker at that location. Each mortgage banker shall also keep and maintain at all times at each such location all original books, papers and data, or copies thereof, clearly reflecting the financial condition of the business of the mortgage banker.

     2.  Each mortgage banker shall submit to the Commissioner each month a report of the mortgage banker’s activity for the previous month. The report must:

     (a) Specify the volume of loans made by the mortgage banker for the month or state that no loans were made in that month;

     (b) Include any information required pursuant to the regulations adopted by the Commissioner; and

     (c) Be submitted to the Commissioner by the 15th day of the month following the month for which the report is made.

     3.  The Commissioner may adopt regulations prescribing accounting procedures for mortgage bankers handling trust accounts and the requirements for keeping records relating to such accounts.

     4.  A licensee who operates outside this State an office or other place of business which is licensed pursuant to this chapter shall:

     (a) Make available at a location within this State the books, accounts, papers, records and files of the office or place of business located outside this State to the Commissioner or a representative of the Commissioner; or

 


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

ê2011 Statutes of Nevada, Page 3633 (Chapter 522, AB 77)ê

 

     (b) Pay the reasonable expenses for travel, meals and lodging of the Commissioner or a representative of the Commissioner incurred during any investigation or examination made at the office or place of business located outside this State.

Ê The licensee must be allowed to choose between paragraph (a) or (b) in complying with the provisions of this subsection.

     5.  Each mortgage banker who is required to register or voluntarily registers with the Registry shall submit to the Registry and the Commissioner a report of condition or any other report required by the Registry in the form and at the time required by the Registry.

     Sec. 80.  NRS 645E.360 is hereby amended to read as follows:

     645E.360  1.  Except as otherwise provided in this section, not later than [120] 90 days after the last day of each fiscal year for a mortgage banker, the mortgage banker shall submit to the Commissioner a financial statement that:

     (a) Is dated not earlier than the last day of the fiscal year; and

     (b) Has been prepared from the books and records of the mortgage banker by an independent certified public accountant who holds a [permit] license to [engage in the] practice [of public accounting] in this State or in any other state that has not been revoked or suspended.

     2.  [The] Unless otherwise prohibited by the Registry, the Commissioner may grant a reasonable extension for the submission of a financial statement pursuant to this section if a mortgage banker requests such an extension before the date on which the financial statement is due.

     3.  If a mortgage banker maintains any accounts described in NRS 645E.430, the financial statement submitted pursuant to this section must be audited. [The public accountant who prepares the report of an audit shall submit a copy of the report to the Commissioner at the same time that he or she submits the report to the mortgage banker.]

     4.  The Commissioner may require the financial statement to be submitted directly to the Commissioner or, if the mortgage banker that submits the financial statement is required to register or voluntarily registers with the Registry, to the Division through the Registry.

     5.  The Commissioner shall adopt regulations prescribing the scope of an audit conducted pursuant to subsection 3.

     Sec. 81.  NRS 645E.375 is hereby amended to read as follows:

     645E.375  1.  Except as otherwise provided in this section and NRS 239.0115, a complaint filed with the Commissioner, all documents and other information filed with the complaint and all documents and other information compiled as a result of an investigation conducted to determine whether to initiate disciplinary action are confidential.

     2.  The complaint or other document filed by the Commissioner to initiate disciplinary action and all documents and information considered by the Commissioner when determining whether to impose discipline are public records.

     3.  The Commissioner may disclose any document or information made confidential under subsection 1 to the party against whom the complaint is made, a licensing board or agency, the Registry or any other governmental agency, including, without limitation, a law enforcement agency.

 


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

ê2011 Statutes of Nevada, Page 3634 (Chapter 522, AB 77)ê

 

     Sec. 82.  NRS 645E.390 is hereby amended to read as follows:

     645E.390  1.  The Commissioner must be notified of a transfer of [5] 10 percent or more of the outstanding voting stock of a mortgage banker and must approve a transfer of voting stock of a mortgage banker which constitutes a change of control.

     2.  The person who acquires stock resulting in a change of control of the mortgage banker shall apply to the Commissioner for approval of the transfer. The application must contain information which shows that the requirements of this chapter and of the Registry, if applicable, for obtaining a license will be satisfied after the change of control. Except as otherwise provided in subsection 3, the Commissioner shall conduct an investigation to determine whether those requirements will be satisfied. If, after the investigation, the Commissioner denies the application, the Commissioner may forbid the applicant from participating in the business of the mortgage banker.

     3.  A mortgage banker may submit a written request to the Commissioner to waive an investigation pursuant to subsection 2. The Commissioner may grant a waiver if the applicant has undergone a similar investigation by a state or federal agency in connection with the licensing of or his or her employment with a financial institution.

     4.  As used in this section, “change of control” means:

     (a) A transfer of voting stock which results in giving a person, directly or indirectly, the power to direct the management and policy of a mortgage banker; or

     (b) A transfer of at least 25 percent of the outstanding voting stock of a mortgage banker.

     Sec. 83.  NRS 645E.420 is hereby amended to read as follows:

     645E.420  1.  Except as otherwise permitted by law and as otherwise provided in subsection 3, the amount of any advance fee, salary, deposit or money paid to any mortgage banker or other person to obtain a loan secured by a lien on real property must be placed in escrow pending completion of the loan or a commitment for the loan.

     2.  The amount held in escrow pursuant to subsection 1 must be released:

     (a) Upon completion of the loan or commitment for the loan, to the mortgage banker or other person to whom the advance fee, salary, deposit or money was paid.

     (b) If the loan or commitment for the loan fails, to the person who made the payment.

     3.  Advance payments to cover reasonably estimated costs paid to third persons are excluded from the provisions of subsections 1 and 2 if the person making them first signs a written agreement which specifies the estimated costs by item and the estimated aggregate cost, and which recites that money advanced for costs will not be refunded. If an itemized service is not performed and the estimated cost thereof is not refunded, the recipient of the advance payment is subject to the penalties provided in NRS 645E.960.

     Sec. 84.  NRS 645E.670 is hereby amended to read as follows:

     645E.670  1.  For each violation committed by an applicant, whether or not the applicant is issued a license, the Commissioner may impose upon the applicant an administrative fine of not more than [$10,000] $25,000 if the applicant:

 


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

ê2011 Statutes of Nevada, Page 3635 (Chapter 522, AB 77)ê

 

     (a) Has knowingly made or caused to be made to the Commissioner any false representation of material fact;

     (b) Has suppressed or withheld from the Commissioner any information which the applicant possesses and which, if submitted by the applicant, would have rendered the applicant ineligible to be licensed pursuant to the provisions of this chapter; or

     (c) Has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner in completing and filing his or her application for a license or during the course of the investigation of his or her application for a license.

     2.  For each violation committed by a licensee, the Commissioner may impose upon the licensee an administrative fine of not more than [$10,000,] $25,000, may suspend, revoke or place conditions upon the license, or may do both, if the licensee, whether or not acting as such:

     (a) Is insolvent;

     (b) Is grossly negligent or incompetent in performing any act for which the licensee is required to be licensed pursuant to the provisions of this chapter;

     (c) Does not conduct his or her business in accordance with law or has violated any provision of this chapter, a regulation adopted pursuant to this chapter or an order of the Commissioner;

     (d) Is in such financial condition that the licensee cannot continue in business with safety to his or her customers;

     (e) Has made a material misrepresentation in connection with any transaction governed by this chapter;

     (f) Has suppressed or withheld from a client any material facts, data or other information relating to any transaction governed by the provisions of this chapter which the licensee knew or, by the exercise of reasonable diligence, should have known;

     (g) Has knowingly made or caused to be made to the Commissioner any false representation of material fact or has suppressed or withheld from the Commissioner any information which the licensee possesses and which, if submitted by the licensee, would have rendered the licensee ineligible to be licensed pursuant to the provisions of this chapter;

     (h) Has failed to account to persons interested for all money received for a trust account;

     (i) Has refused to permit an examination by the Commissioner of his or her books and affairs or has refused or failed, within a reasonable time, to furnish any information or make any report that may be required by the Commissioner pursuant to the provisions of this chapter or a regulation adopted pursuant to this chapter;

     (j) Has been convicted of, or entered or agreed to enter a plea of nolo contendere to, a felony [relating to the practice of mortgage bankers or any crime involving fraud, misrepresentation or moral turpitude;] in a domestic, foreign or military court within the 7 years immediately preceding the date of the application, or at any time if such felony involved an act of fraud, dishonesty or a breach of trust, moral turpitude or money laundering;

     (k) Has refused or failed to pay, within a reasonable time, any fees, assessments, costs or expenses that the licensee is required to pay pursuant to this chapter or a regulation adopted pursuant to this chapter;

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

 


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

ê2011 Statutes of Nevada, Page 3636 (Chapter 522, AB 77)ê

 

     (m) Has failed to satisfy a claim made by a client which has been reduced to judgment;

     (n) Has failed to account for or to remit any money of a client within a reasonable time after a request for an accounting or remittal;

     (o) Has violated NRS 645C.557;

     (p) Has commingled the money or other property of a client with his or her own or has converted the money or property of others to his or her own use; or

     (q) Has engaged in any other conduct constituting a deceitful, fraudulent or dishonest business practice.

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

     Sec. 85.  NRS 645E.690 is hereby amended to read as follows:

     645E.690  1.  If a person offers or provides any of the services of a mortgage banker or mortgage agent or otherwise engages in, carries on or holds himself or herself out as engaging in or carrying on the business of a mortgage banker or mortgage agent and, at the time:

     (a) The person was required to have a license pursuant to this chapter and the person did not have such a license; or

     (b) The person’s license was suspended or revoked pursuant to this chapter,

Ê the Commissioner shall impose upon the person an administrative fine of not more than $50,000 for each violation and, if the person has a license, the Commissioner [shall] may suspend or revoke it.

     2.  If a mortgage banker violates subsection 1 of NRS 645E.350 and the mortgage banker fails, without reasonable cause, to remedy the violation within 20 business days after being ordered by the Commissioner to do so or within such later time as prescribed by the Commissioner, or if the Commissioner orders a mortgage banker to provide information, make a report or permit an examination of his or her books or affairs pursuant to this chapter and the mortgage banker fails, without reasonable cause, to comply with the order within 20 business days or within such later time as prescribed by the Commissioner, the Commissioner shall:

     (a) Impose upon the mortgage banker an administrative fine of not more than [$10,000] $25,000 for each violation;

     (b) Suspend or revoke the license of the mortgage banker; and

     (c) Conduct a hearing to determine whether the mortgage banker is conducting business in an unsafe and injurious manner that may result in danger to the public and whether it is necessary for the Commissioner to take possession of the property of the mortgage banker pursuant to NRS 645E.630.

     Sec. 86.  NRS 645E.955 is hereby amended to read as follows:

     645E.955  1.  [The holder of] A person who engages in an activity for which a license as a mortgage banker [may be] is required pursuant to this chapter, without regard to whether such a person is licensed pursuant to this chapter, may be required by the Commissioner to pay restitution to any person who has suffered an economic loss as a result of a violation of the provisions of this chapter or any regulation adopted pursuant thereto.

     2.  Notwithstanding the provision of paragraph (m) of subsection 1 of NRS 622A.120, payment of restitution pursuant to subsection 1 shall be done in a manner consistent with the provisions of chapter 622A of NRS.

 


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

ê2011 Statutes of Nevada, Page 3637 (Chapter 522, AB 77)ê

 

     Sec. 87.  Chapter 645F of NRS is hereby amended by adding thereto the provisions set forth as sections 88 and 90 of this act.

     Sec. 88.  “Residence” means a structure that contains not more than four individual units designed or intended for occupancy regardless of whether such a structure is attached to real property. The term includes an individual condominium unit, cooperative unit, mobile home or trailer used for occupancy.

     Sec. 88.5 and 89.  (Deleted by amendment.)

     Sec. 90.  1.  Any person authorized to engage in activities as a residential mortgage loan originator on behalf of an installment loan lender licensed under chapter 675 of NRS shall obtain and maintain a license as a mortgage agent.

     2.  As used in this section:

     (a) “Mortgage agent” has the meaning ascribed to in NRS 645B.0125; and

     (b) “Residential mortgage loan originator” has the meaning ascribed to it in NRS 645B.01325.

     Sec. 91.  NRS 645F.280 is hereby amended to read as follows:

     645F.280  1.  The Commissioner shall establish by regulation rates to be paid by [escrow agencies, mortgage agents, mortgage brokers, mortgage bankers, persons who perform any covered service for compensation, foreclosure consultants and loan modification consultants] all persons licensed by the Commissioner or the Division for supervision and examinations by the Commissioner or the Division.

     2.  In establishing a rate pursuant to subsection 1, the Commissioner shall consider:

     (a) The complexity of the various examinations to which the rate applies;

     (b) The skill required to conduct the examinations;

     (c) The expenses associated with conducting the examination and preparing a report; and

     (d) Any other factors the Commissioner deems relevant.

     Sec. 92.  NRS 645F.290 is hereby amended to read as follows:

     645F.290  1.  The Commissioner shall collect an assessment pursuant to this section from each [:

     (a) Escrow agency that is supervised pursuant to chapter 645A of NRS;

     (b) Mortgage broker that is supervised pursuant to chapter 645B of NRS;

     (c) Mortgage agent that is supervised pursuant to chapter 645B or 645E of NRS;

     (d) Mortgage banker that is supervised pursuant to chapter 645E of NRS; and

     (e) Person who performs any covered service for compensation, each foreclosure consultant and each loan modification consultant that is supervised pursuant to this chapter.] person licensed by the Commissioner or the Division.

     2.  The Commissioner shall determine the total amount of all assessments to be collected from the [entities] persons identified in subsection 1, but that amount must not exceed the amount necessary to recover the cost of legal services provided by the Attorney General to the Commissioner and to the Division. The total amount of all assessments collected must be reduced by any amounts collected by the Commissioner from [an entity] a person for the recovery of the costs of legal services provided by the Attorney General in a specific case.

 


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

ê2011 Statutes of Nevada, Page 3638 (Chapter 522, AB 77)ê

 

     3.  The Commissioner shall collect from each [entity] person identified in subsection 1 an assessment that is based on:

     (a) An equal basis; or

     (b) Any other reasonable basis adopted by the Commissioner.

     4.  The assessment required by this section is in addition to any other assessment, fee or cost required by law to be paid by [an entity] a person identified in subsection 1.

     5.  Money collected by the Commissioner pursuant to this section must be deposited in the Fund for Mortgage Lending created by NRS 645F.270.

     Sec. 93.  NRS 645F.291 is hereby amended to read as follows:

     645F.291  1.  In the conduct of any examination, periodic or special audit, investigation or hearing, the Commissioner may:

     (a) Compel the attendance of any person by subpoena.

     (b) Compel the production of any books, records or papers by subpoena.

     (c) Administer oaths.

     [(c)] (d) Examine any person under oath concerning the business and conduct of affairs of any person subject to the provisions of this chapter and in connection therewith require the production of any books, records or papers relevant to the inquiry.

     2.  Any person subpoenaed under the provisions of this section who willfully refuses or willfully neglects to appear at the time and place named in the subpoena or to produce books, records or papers required by the Commissioner, or who refuses to be sworn or answer as a witness, is guilty of a misdemeanor.

     3.  In addition to the authority to recover attorney’s fees and costs pursuant to any other statute, the Commissioner may assess against and collect from a person all costs, including, without limitation, reasonable attorney’s fees, that are attributable to any examination, periodic or special audit, investigation or hearing that is conducted to examine or investigate the conduct, activities or business of the person pursuant to this chapter.

     Sec. 94.  NRS 645F.294 is hereby amended to read as follows:

     645F.294  1.  Except as otherwise provided in section 1512 of Public Law 110-289, 12 U.S.C. § 5111, the requirements under any federal law or NRS 645B.060 and 645B.092 regarding the confidentiality of any information or material provided to the Registry, and any privilege arising under federal law or the laws of this State with respect to such information or material, continue to apply to such information or material after it has been disclosed to the Registry. Such information and material may be shared with federal and state regulatory officials with mortgage industry oversight without the loss of privilege or the loss of confidentiality protections provided by federal law or the provisions of NRS 645B.060 and 645B.092.

     2.  Information or material that is subject to a privilege or confidentiality under subsection 1 is not subject to:

     (a) Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or agency of the Federal Government or the State of Nevada; and

     (b) Subpoena or discovery, or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the Registry with respect to such information or material, the person to whom such information or material waives, in whole or in part, that privilege.

 


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

ê2011 Statutes of Nevada, Page 3639 (Chapter 522, AB 77)ê

 

     3.  This section does not apply to information or material relating to:

     (a) The employment history of; and

     (b) Publicly adjudicated disciplinary and enforcement actions against,

Ê residential mortgage loan originators included in the Registry for access by the public.

     Sec. 95.  NRS 645F.300 is hereby amended to read as follows:

     645F.300  As used in NRS 645F.300 to 645F.450, inclusive, and section 88 of this act, unless the context otherwise requires, the words and terms defined in NRS 645F.310 to 645F.370, inclusive, and section 88 of this act have the meanings ascribed to them in those sections.

     Sec. 96.  NRS 645F.310 is hereby amended to read as follows:

     645F.310  “Covered service” includes, without limitation:

     1.  Financial counseling [,] to a homeowner, including, without limitation, debt counseling and budget counseling.

     2.  Receiving money for the purpose of distributing it to creditors in payment or partial payment of any obligation secured by a mortgage or other lien on a residence in foreclosure.

     3.  Contacting a creditor on behalf of a homeowner.

     4.  Arranging or attempting to arrange for an extension of the period within which a homeowner may cure a default and reinstate an obligation pursuant to a note, mortgage or deed of trust.

     5.  Arranging or attempting to arrange for any delay or postponement of the time of a foreclosure sale [.] of a residence in foreclosure.

     6.  Advising a homeowner regarding the filing of any document or assisting in any manner in the preparation of any document for filing with a bankruptcy court.

     7.  Giving any advice, explanation or instruction to a homeowner which in any manner relates to the cure of a default in or the reinstatement of an obligation secured by a mortgage or other lien on [the] a residence , [in foreclosure,] the full satisfaction of the obligation, or the postponement or avoidance of a foreclosure sale.

     8.  Arranging or conducting, or attempting to arrange or conduct, for a homeowner any forensic loan audit or review or other audit or review of loan documents.

     9.  Arranging or attempting to arrange for a homeowner the purchase by a third party of the homeowner’s mortgage loan.

     10.  Arranging or attempting to arrange for a homeowner a reduction of the principal of the homeowner’s mortgage loan when such a mortgage loan is held by or serviced by a third party.

     11.  Providing the services of a loan modification consultant.

     12.  Providing the services of a foreclosure consultant.

     Sec. 97.  NRS 645F.370 is hereby amended to read as follows:

     645F.370  “Residence in foreclosure” means residential real property consisting of not more than four family dwelling units [, one of which the homeowner occupies as his or her principal place of residence,] and against which there is an outstanding notice of the pendency of an action for foreclosure recorded pursuant to NRS 14.010 or notice of default and election to sell recorded pursuant to NRS 107.080.

     Sec. 98.  NRS 645F.380 is hereby amended to read as follows:

     645F.380  The provisions of NRS 645F.300 to 645F.450, inclusive, and section 88 of this act do not apply to, and the terms “foreclosure consultant” and “foreclosure purchaser” do not include:

 


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

ê2011 Statutes of Nevada, Page 3640 (Chapter 522, AB 77)ê

 

     1.  An attorney at law rendering services in the performance of his or her duties as an attorney at law, unless the attorney at law is rendering those services in the course and scope of his or her employment by or other affiliation with a [mortgage broker or mortgage agent;] person who is licensed or required to be licensed pursuant to NRS 645F.390;

     2.  A provider of debt-management services registered pursuant to chapter 676A of NRS while providing debt-management services pursuant to chapter 676A of NRS;

     3.  A person or the authorized agent of a person acting under the provisions of a program sponsored by the Federal Government, this State or a local government, including, without limitation, the Department of Housing and Urban Development, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association or the Federal Home Loan Bank [;] System;

     4.  A person who holds or is owed an obligation secured by a mortgage or other lien on a residence in foreclosure if the person performs services in connection with this obligation or lien and the obligation or lien did not arise as the result of or as part of a proposed foreclosure reconveyance;

     5.  Any person doing business under the laws of this State or of the United States relating to banks, trust companies, savings and loan associations, industrial loan and thrift companies, regulated lenders, credit unions, insurance companies, or a mortgagee which is a United States Department of Housing and Urban Development approved mortgagee and any subsidiary or affiliate of those persons, and any agent or employee of those persons while engaged in the business of those persons;

     6.  A person, other than a person who is licensed pursuant to NRS 645F.390, who is licensed pursuant to chapter 692A or any chapter of title 54 of NRS while acting under the authority of the license;

     7.  A nonprofit agency or organization that offers credit counseling or advice to a homeowner of a residence in foreclosure or a person in default on a loan; or

     8.  A judgment creditor of the homeowner whose claim accrued before the recording of the notice of the pendency of an action for foreclosure against the homeowner pursuant to NRS 14.010 or the recording of the notice of default and election to sell pursuant to NRS 107.080.

     Sec. 99.  NRS 645F.390 is hereby amended to read as follows:

     645F.390  1.  The Commissioner shall adopt [separate] regulations for the licensing of:

     (a) A person who performs any covered service for compensation;

     (b) A foreclosure consultant; and

     (c) A loan modification consultant.

     2.  The regulations must prescribe, without limitation:

     (a) The method and form of application for a license;

     (b) The method and form of the issuance, denial or renewal of a license;

     (c) The grounds and procedures for the revocation, suspension or nonrenewal of a license; [and]

     (d) The imposition of reasonable fees for application and licensure [.] ; and

     (e) Any provisions necessary to comply with the provisions of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008, Public Law 110-289, 12 U.S.C. §§ 5101 et seq., including registration with the Registry, and the Mortgage Assistance Relief Services Rule, 16 C.F.R. Part 322, as promulgated by the Federal Trade Commission.

 


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

ê2011 Statutes of Nevada, Page 3641 (Chapter 522, AB 77)ê

 

Registry, and the Mortgage Assistance Relief Services Rule, 16 C.F.R. Part 322, as promulgated by the Federal Trade Commission.

     3.  An application for a license pursuant to this section must include a complete set of the fingerprints of the applicant or, if the applicant is not a natural person, a complete set of the fingerprints of each person who will have an interest in the person who performs any covered service as a principal, partner, officer, director or trustee, and written permission authorizing the Division 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.

     Sec. 100.  NRS 645F.392 is hereby amended to read as follows:

     645F.392  1.  A person who performs any covered service for compensation [, a foreclosure consultant and a loan modification consultant] shall execute a written contract with a homeowner before providing any covered service.

     2.  The Commissioner shall adopt regulations describing the information that must be contained in a written contract for covered services.

     Sec. 101.  NRS 645F.394 is hereby amended to read as follows:

     645F.394  [1.  All money paid to a person who performs any covered service for compensation, a foreclosure consultant or a loan modification consultant by a person in full or partial payment of covered services to be performed:

     (a) Must be deposited in a separate checking account located in a federally insured depository financial institution or credit union in this State which must be designated a trust account;

     (b) Must be kept separate from money belonging to the person who performs any covered service for compensation, the foreclosure consultant or the loan modification consultant; and

     (c) Must not be withdrawn by the person who performs any covered service for compensation, foreclosure consultant or loan modification consultant until the completion of every covered service as agreed upon in the contract for covered services.

     2.  The person who performs any covered service for compensation, the foreclosure consultant or the loan modification consultant shall keep records of all money deposited in a trust account pursuant to subsection 1. The records must clearly indicate the date and from whom he or she received money, the date deposited, the dates of withdrawals, and other pertinent information concerning the transaction, and must show clearly for whose account the money is deposited and to whom the money belongs. The person who performs any covered service for compensation, the foreclosure consultant or the loan modification consultant shall balance each separate trust account at least monthly and provide to the Commissioner, on a form provided by the Commissioner, an annual accounting which shows an annual reconciliation of each separate trust account. All such records and money are subject to inspection and audit by the Commissioner and authorized representatives of the Commissioner.

     3.  Each person who performs any covered service for compensation, each foreclosure consultant and each loan modification consultant shall notify the Commissioner of the names of the banks and credit unions in which he or she maintains trust accounts and specify the names of the accounts on forms provided by the Commissioner.

 


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

ê2011 Statutes of Nevada, Page 3642 (Chapter 522, AB 77)ê

 

     4.  As used in this section, “completion of every covered service” means:

     (a) Successful results with respect to what the performance of each covered service was intended to yield for the homeowner, as described in the contract for covered services; or

     (b) If the performance of one or more covered service has an unsuccessful result with respect to what the performance of that covered service was intended to yield for the homeowner, a showing that every reasonable effort was made, under the particular circumstances, to obtain successful results,

Ê as verified in a written statement provided to the homeowner.] A person licensed or required to be licensed pursuant to NRS 645F.390 may not request or receive payment of any fee or other compensation from a homeowner until such a person has fully complied with the provisions of the Mortgage Assistance Relief Services Rule, 16 C.F.R. Part 322, and any other applicable federal law or regulation.

     Sec. 102.  NRS 645F.400 is hereby amended to read as follows:

     645F.400  1.  A person who performs any covered service [, a foreclosure consultant and a loan modification consultant] shall not:

     (a) Claim, demand, charge, collect or receive any compensation except in accordance with NRS 645F.394.

     (b) Claim, demand, charge, collect or receive any fee, interest or other compensation for any reason which is not fully disclosed to the homeowner.

     (c) Take or acquire, directly or indirectly, any wage assignment, lien on real or personal property, assignment of a homeowner’s equity [or other] , any interest in a residence [in foreclosure] or other security for the payment of compensation. Any such assignment or security is void and unenforceable.

     (d) Receive any consideration from any third party in connection with a covered service provided to a homeowner unless the consideration is first fully disclosed to the homeowner.

     (e) [Acquire, directly or indirectly, any interest in the residence in foreclosure of a homeowner with whom the foreclosure consultant has contracted to perform a covered service.

     (f)] Accept a power of attorney from a homeowner for any purpose, other than to inspect documents as provided by law.

     2.  In addition to any other penalty, a violation of any provision of this section shall be deemed to constitute mortgage lending fraud for the purposes of NRS 205.372.

     Sec. 103.  NRS 645F.410 is hereby amended to read as follows:

     645F.410  1.  In addition to any other remedy or penalty, the Commissioner may, after giving notice and opportunity to be heard, impose an administrative penalty of not more than [$10,000 on a foreclosure consultant] $25,000 on any person licensed or required to be licensed pursuant to NRS 645F.390 who violates any provision of [NRS 645F.400.] this chapter or any regulation adopted pursuant thereto or any other applicable law.

     2.  Except as otherwise provided in this section, all money collected from administrative penalties imposed pursuant to this section must be deposited in the State General Fund.

 


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

ê2011 Statutes of Nevada, Page 3643 (Chapter 522, AB 77)ê

 

     3.  The money collected from an administrative penalty may be deposited with the State Treasurer for credit to the Fund for Mortgage Lending created by NRS 645F.270 if:

     (a) The person pays the administrative penalty without exercising the right to a hearing to contest the penalty; or

     (b) The administrative penalty is imposed in a hearing conducted by a hearing officer or panel appointed by the Commissioner.

     4.  The Commissioner may appoint one or more hearing officers or panels and may delegate to those hearing officers or panels the power of the Commissioner to conduct hearings, determine violations and impose the penalties authorized by this section.

     5.  If money collected from an administrative penalty is deposited in the State General Fund, the Commissioner may present a claim to the State Board of Examiners for recommendation to the Interim Finance Committee if money is needed to pay attorney’s fees or the costs of an investigation, or both.

     Sec. 104.  NRS 645F.420 is hereby amended to read as follows:

     645F.420  1.  A homeowner who is injured as a result of a [foreclosure consultant’s] person’s violation of a provision of NRS 645F.400 may bring an action against the [foreclosure consultant] person to recover damages caused by the violation, together with reasonable attorney’s fees and costs.

     2.  If the homeowner prevails in the action, the court may award such punitive damages as may be determined by a jury, or by a court sitting without a jury, but in no case may the punitive damages be less than one and one-half times the amount awarded to the homeowner as actual damages.

     Sec. 105.  NRS 658.210 is hereby amended to read as follows:

     658.210  1.  [Any] Except as otherwise provided in section 90 of this act, any person authorized to engage in activities as a residential mortgage loan originator on behalf of a privately insured institution or organization licensed under title 55 or 56 of NRS shall obtain and maintain a license as a mortgage agent.

     2.  As used in subsection 1:

     (a) “Mortgage agent” has the meaning ascribed to in NRS 645B.0125; and

     (b) “Residential mortgage loan originator” has the meaning ascribed to it in NRS 645B.01325.

     Sec. 106.  NRS 645B.044 is hereby repealed.

     Sec. 106.5.  1.  The Commissioner shall issue a provisional license as an escrow agency or an escrow agent, as applicable, to a person if, on or before October 1, 2011, the person submits to the Commissioner:

     (a) For a provisional license as an escrow agency, proof satisfactory to the Commissioner that the person is a construction control and that the majority of the business conducted by the person is business in which the person serves as a construction control;

     (b) For a provisional license as an escrow agent, proof satisfactory to the Commissioner that the person is a natural person who engages in activity related to the business of a construction control on behalf of a construction control who holds a provisional license as an escrow agency or holds a license as an escrow agency;

     (c) A complete application for a license as an escrow agency or an escrow agent, as applicable, which complies with the requirements of chapter 645A of NRS, as amended by this act, and all regulations adopted pursuant thereto, accompanied by all other documentation and materials required of an applicant for a license as an escrow agency or an escrow agent, as applicable, by the provisions of chapter 645A of NRS, as amended by this act, and all regulations adopted pursuant thereto, except for regulations adopted pursuant to NRS 645A.021;

 


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

ê2011 Statutes of Nevada, Page 3644 (Chapter 522, AB 77)ê

 

thereto, accompanied by all other documentation and materials required of an applicant for a license as an escrow agency or an escrow agent, as applicable, by the provisions of chapter 645A of NRS, as amended by this act, and all regulations adopted pursuant thereto, except for regulations adopted pursuant to NRS 645A.021;

     (d) For a provisional license as an escrow agency, a bond which complies with the requirements of NRS 645A.041, as amended by section 6 of this act, or a substitute for that bond which complies with the requirements of NRS 645A.042; and

     (e) A statement satisfactory to the Commissioner, signed by the person, that the person understands the provisions of this section including, without limitation, the provisions governing the expiration of a provisional license.

     2.  Upon receipt of documentation and materials from a person pursuant to subsection 1, the Commissioner shall:

     (a) Determine whether the person has submitted all documentation and materials required by subsection 1 for a provisional license as an escrow agency or an escrow agent;

     (b) If the person has submitted all documentation and materials required by subsection 1 for a provisional license as an escrow agency, issue to the person a provisional license as an escrow agency;

     (c) If the person has submitted all documentation and materials required by subsection 1 for a provisional license as an escrow agent, issue to the person a provisional license as an escrow agent; and

     (d) Without regard to whether the Commissioner issues a provisional license as an escrow agency or an escrow agent to the person pursuant to paragraph (b) or (c), if the person has submitted all documentation and materials required by paragraph (c) of subsection 1 to apply for a license as an escrow agency or an escrow agent, process the materials as an application for a license as an escrow agency or an escrow agent, as applicable, in accordance with the provisions of chapter 645A of NRS, as amended by this act, and all regulations adopted pursuant thereto. Notwithstanding any provisions of this paragraph to the contrary, if the Commissioner issues a provisional license as an escrow agency or an escrow agent to the person pursuant to paragraph (b) or (c), the Commissioner may cease any processing of the person’s application for a license as an escrow agency or an escrow agent, as applicable, upon expiration of the provisional license pursuant to the provisions of this section.

     3.  Except as otherwise provided in this section, a provisional license as an escrow agency or an escrow agent shall be deemed to be a license as an escrow agency or an escrow agent, as applicable.

     4.  A provisional license expires automatically:

     (a) Notwithstanding the provisions of subsection 7, upon receipt by the person of written notice from the Commissioner that the Commissioner has denied, for any reason, the person’s application for a license as an escrow agency or an escrow agent, as applicable;

     (b) Upon the issuance to the person by the Commissioner of a license as an escrow agency or an escrow agent, as applicable;

     (c) Ninety days after the date of issuance of the provisional license if the holder of the provisional license:

           (1) Is a natural person who is required by NRS 645A.021 and any regulations adopted pursuant thereto to complete educational prerequisites to obtain a license as an escrow agency or an escrow agent, as applicable;

 


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

ê2011 Statutes of Nevada, Page 3645 (Chapter 522, AB 77)ê

 

           (2) Has not completed the educational prerequisites specified in subparagraph (1) as required for an applicant for a license as an escrow agency or an escrow agent, as applicable; and

           (3) Has not requested, or the Commissioner has denied a request by the holder for, an extension of the time for completion of the educational prerequisites specified in this paragraph; or

     (d) On December 31, 2011, if the holder of the provisional license has not requested, or the Commissioner has denied a request by the holder for, an extension of the expiration date set forth in this paragraph.

     5.  A request for an extension pursuant to subparagraph (3) of paragraph (c) of subsection 4 or paragraph (d) of subsection 4 must set forth reasons which would support a finding by the Commissioner of good cause to grant the extension. The Commissioner may grant such a request for an extension only upon a finding by the Commissioner that good cause exists to grant such an extension.

     6.  The Commissioner shall not issue a provisional license to a person who submits the documentation and materials required by subsection 1 for a provisional license after October 1, 2011.

     7.  A provisional license issued by the Commissioner before July 1, 2011:

     (a) Is effective on July 1, 2011; and

     (b) Shall be deemed to have been issued on July 1, 2011.

     8.  As used in this section:

     (a) “Commissioner” has the meaning ascribed to it in NRS 645A.010.

     (b) “Construction control” has the meaning ascribed to it in NRS 627.050.

     (c) “License” means a license as an escrow agency or an escrow agent, as applicable, issued pursuant to the provisions of chapter 645A of NRS, as amended by this act, and all regulations adopted pursuant thereto.

     (d) “Provisional license” means a provisional license as an escrow agency or an escrow agent, as applicable, issued pursuant to the provisions of this section.

     Sec. 107.  This act becomes effective:

     1.  Upon passage and approval for the purpose of adopting regulations and performing any other preparatory administrative tasks that are necessary to carry out the provisions of this act; and

     2.  On July 1, 2011, for all other purposes.

________

 


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

ê2011 Statutes of Nevada, Page 3646ê

 

CHAPTER 523, SB 140

Senate Bill No. 140–Senators Breeden, Schneider, Manendo, Parks, Denis; Copening, Horsford and Wiener

 

Joint Sponsors: Assemblymen Segerblom, Atkinson, Munford and Smith

 

CHAPTER 523

 

[Approved: June 17, 2011]

 

AN ACT relating to traffic laws; prohibiting a person from using a cellular telephone or other handheld wireless communications device while operating a motor vehicle in certain circumstances; providing penalties; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Under existing traffic laws of this State, it is a crime to engage in various activities while operating a motor vehicle or to operate a motor vehicle in a reckless or unsafe manner. (Chapters 484A-484E of NRS) Section 1 of this bill makes it a crime for a person to manually type or enter text into a cellular telephone or other similar device, or to send or read data using any such device, while operating a motor vehicle. Section 1 further prohibits a person from using such a device for voice communications unless the device is used with an accessory which allows the person to communicate without using his or her hands, with certain limited exceptions. Section 1 provides an exception to the prohibitions when the cellular telephone or other device is used by certain emergency and law enforcement personnel and persons designated by a sheriff or chief of police or the Director of the Department of Public Safety who are acting within the course and scope of their employment. Additional exceptions apply if: (1) the person is using the cellular telephone or other device to report or request assistance relating to a medical emergency, a safety hazard or criminal activity; (2) the person is responding to a situation requiring immediate action and stopping the vehicle would be inadvisable, impractical or dangerous; (3) the person is a licensed amateur radio operator providing communications services in connection with a disaster or emergency, participating in a drill, test, or other exercise in preparation for a disaster or emergency or otherwise communicating public information; or (4) the person is an employee or contractor of a public utility and is responding to an emergency dispatch. A violation of the provisions added by section 1 is a misdemeanor and punishable by a fine of $50 for a first offense within the immediately preceding 7 years, $100 for a second offense within the immediately preceding 7 years and $250 for a third or subsequent offense within the immediately preceding 7 years. However, section 4 of this bill provides that until January 1, 2012, a law enforcement officer must not issue a citation to a person for violating section 1 but must give the person a verbal or written warning. Section 1 further provides that a first offense will not be treated as a moving traffic violation. Additionally, if a person is convicted of a third or subsequent offense, in addition to the fine, the driver’s license of the person will be suspended for 6 months. Section 2 of this bill makes the enhanced penalty for certain traffic violations that occur in a temporary traffic control zone applicable to violations of these new crimes.

 


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

ê2011 Statutes of Nevada, Page 3647 (Chapter 523, SB 140)ê

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  Chapter 484B of NRS is hereby amended by adding thereto a new section to read as follows:

     1.  Except as otherwise provided in this section, a person shall not, while operating a motor vehicle on a highway in this State:

     (a) Manually type or enter text into a cellular telephone or other handheld wireless communications device, or send or read data using any such device to access or search the Internet or to engage in nonvoice communications with another person, including, without limitation, texting, electronic messaging and instant messaging.

     (b) Use a cellular telephone or other handheld wireless communications device to engage in voice communications with another person, unless the device is used with an accessory which allows the person to communicate without using his or her hands, other than to activate, deactivate or initiate a feature or function on the device.

     2.  The provisions of this section do not apply to:

     (a) A paid or volunteer firefighter, emergency medical technician, ambulance attendant or other person trained to provide emergency medical services who is acting within the course and scope of his or her employment.

     (b) A law enforcement officer or any person designated by a sheriff or chief of police or the Director of the Department of Public Safety who is acting within the course and scope of his or her employment.

     (c) A person who is reporting a medical emergency, a safety hazard or criminal activity or who is requesting assistance relating to a medical emergency, a safety hazard or criminal activity.

     (d) A person who is responding to a situation requiring immediate action to protect the health, welfare or safety of the driver or another person and stopping the vehicle would be inadvisable, impractical or dangerous.

     (e) A person who is licensed by the Federal Communications Commission as an amateur radio operator and who is providing a communication service in connection with an actual or impending disaster or emergency, participating in a drill, test, or other exercise in preparation for a disaster or emergency or otherwise communicating public information.

     (f) An employee or contractor of a public utility who uses a handheld wireless communications device:

          (1) That has been provided by the public utility; and

           (2) While responding to a dispatch by the public utility to respond to an emergency, including, without limitation, a response to a power outage or an interruption in utility service.

     3.  The provisions of this section do not prohibit the use of a voice-operated global positioning or navigation system that is affixed to the vehicle.

     4.  A person who violates any provision of subsection 1 is guilty of a misdemeanor and:

     (a) For the first offense within the immediately preceding 7 years, shall pay a fine of $50.

 


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

ê2011 Statutes of Nevada, Page 3648 (Chapter 523, SB 140)ê

 

     (b) For the second offense within the immediately preceding 7 years, shall pay a fine of $100.

     (c) For the third or subsequent offense within the immediately preceding 7 years, shall pay a fine of $250.

     5.  A person who violates any provision of subsection 1 may be subject to the additional penalty set forth in NRS 484B.130.

     6.  The Department of Motor Vehicles shall not treat a first violation of this section in the manner statutorily required for a moving traffic violation.

     7.  For the purposes of this section, a person shall be deemed not to be operating a motor vehicle if the motor vehicle is driven autonomously through the use of artificial-intelligence software and the autonomous operation of the motor vehicle is authorized by law.

     8.  As used in this section:

     (a) “Handheld wireless communications device” means a handheld device for the transfer of information without the use of electrical conductors or wires and includes, without limitation, a cellular telephone, a personal digital assistant, a pager and a text messaging device. The term does not include a device used for two-way radio communications if:

           (1) The person using the device has a license to operate the device, if required; and

           (2) All the controls for operating the device, other than the microphone and a control to speak into the microphone, are located on a unit which is used to transmit and receive communications and which is separate from the microphone and is not intended to be held.

     (b) “Public utility” means a supplier of electricity or natural gas or a provider of telecommunications service for public use who is subject to regulation by the Public Utilities Commission of Nevada.

     Sec. 2.  NRS 484B.130 is hereby amended to read as follows:

     484B.130  1.  Except as otherwise provided in subsections 2 and 6, a person who is convicted of a violation of a speed limit, or of NRS 484B.150, 484B.163, 484B.200 to 484B.217, inclusive, 484B.223, 484B.227, 484B.300, 484B.303, 484B.317, 484B.320, 484B.327, 484B.330, 484B.403, 484B.587, 484B.600, 484B.603, 484B.610, 484B.613, 484B.650, 484B.653, 484B.657, 484C.110 or 484C.120, or section 1 of this act, that occurred:

     (a) In an area designated as a temporary traffic control zone; and

     (b) At a time when the workers who are performing construction, maintenance or repair of the highway or other work are present, or when the effects of the act may be aggravated because of the condition of the highway caused by construction, maintenance or repair, including, without limitation, reduction in lane width, reduction in the number of lanes, shifting of lanes from the designated alignment and uneven or temporary surfaces, including, without limitation, modifications to road beds, cement-treated bases, chip seals and other similar conditions,

Ê shall be punished by imprisonment or by a fine, or both, for a term or an amount equal to and in addition to the term of imprisonment or amount of the fine, or both, that the court imposes for the primary offense. Any term of imprisonment imposed pursuant to this subsection runs consecutively with the sentence prescribed by the court for the crime. This subsection does not create a separate offense, but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.

 


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

ê2011 Statutes of Nevada, Page 3649 (Chapter 523, SB 140)ê

 

     2.  The additional penalty imposed pursuant to subsection 1 must not exceed a total of $1,000, 6 months of imprisonment or 120 hours of community service.

     3.  Except as otherwise provided in subsection 5, a governmental entity that designates an area or authorizes the designation of an area as a temporary traffic control zone in which construction, maintenance or repair of a highway or other work is conducted, or the person with whom the governmental entity contracts to provide such service, shall cause to be erected:

     (a) A sign located before the beginning of such an area stating “DOUBLE PENALTIES IN WORK ZONES” to indicate a double penalty may be imposed pursuant to this section;

     (b) A sign to mark the beginning of the temporary traffic control zone; and

     (c) A sign to mark the end of the temporary traffic control zone.

     4.  A person who otherwise would be subject to an additional penalty pursuant to this section is not relieved of any criminal liability because signs are not erected as required by subsection 3 if the violation results in injury to any person performing highway construction or maintenance or other work in the temporary traffic control zone or in damage to property in an amount equal to $1,000 or more.

     5.  The requirements of subsection 3 do not apply to an area designated as a temporary traffic control zone:

     (a) Pursuant to an emergency which results from a natural or other disaster and which threatens the health, safety or welfare of the public; or

     (b) On a public highway where the posted speed limit is 25 miles per hour or less and that provides access to or is appurtenant to a residential area.

     6.  A person who would otherwise be subject to an additional penalty pursuant to this section is not subject to an additional penalty if the violation occurred in a temporary traffic control zone for which signs are not erected pursuant to subsection 5, unless the violation results in injury to any person performing highway construction or maintenance or other work in the temporary traffic control zone or in damage to property in an amount equal to $1,000 or more.

     Sec. 3.  NRS 707.375 is hereby amended to read as follows:

     707.375  1.  [An] Except as otherwise provided in section 1 of this act, an agency, board, commission or political subdivision of this State, including, without limitation, any agency, board, commission or governing body of a local government, shall not regulate the use of a telephonic device by a person who is operating a motor vehicle.

     2.  As used in subsection 1, “telephonic device” means a cellular phone, satellite phone, portable phone or any other similar electronic device that is handheld and designed or used to communicate with [a] another person.

     Sec. 4.  Notwithstanding the provisions of section 1 of this act, on or before December 31, 2011, a law enforcement officer shall not issue a citation for a violation of the provisions of section 1 of this act but shall issue a verbal or written warning to a person who violates those provisions informing the person that he or she has violated the provisions of section 1 of this act and of the penalties that will apply to such a violation after December 31, 2011.

________

 


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

ê2011 Statutes of Nevada, Page 3650ê

 

CHAPTER 524, SB 376

Senate Bill No. 376–Senators Cegavske; Breeden, Brower, Gustavson, Halseth, Hardy, Kihuen, Lee, Manendo, McGinness, Parks, Rhoads, Roberson, Schneider and Settelmeyer

 

CHAPTER 524

 

[Approved: June 17, 2011]

 

AN ACT relating to crimes; increasing the penalty for certain technological crimes; providing penalties; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law makes it a misdemeanor to commit certain acts that: (1) interfere with or deny access to or use of a computer, system or network; and (2) relate to the use or access of a computer, system, network, telecommunications device, telecommunications service or information service. (NRS 205.477) Under existing law, a misdemeanor is punishable by imprisonment in the county jail for a term of not more than 6 months, or a fine of up to $1,000, or both. (NRS 193.150) This bill increases the penalty for engaging in such acts from a misdemeanor to a gross misdemeanor which is punishable by imprisonment in the county jail for a term of not more than 1 year, or a fine of up to $2,000, or both.

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  NRS 205.477 is hereby amended to read as follows:

     205.477  1.  Except as otherwise provided in subsections 3 and 4, a person who knowingly, willfully , maliciously and without authorization interferes with, denies or causes the denial of access to or use of a computer, system or network to a person who has the duty and right to use it is guilty of a gross misdemeanor.

     2.  Except as otherwise provided in subsections 3 and 4, a person who knowingly, willfully , maliciously and without authorization uses, causes the use of, accesses, attempts to gain access to or causes access to be gained to a computer, system, network, telecommunications device, telecommunications service or information service is guilty of a gross misdemeanor.

     3.  If the violation of any provision of this section:

     (a) Was committed to devise or execute a scheme to defraud or illegally obtain property;

     (b) Caused response costs, loss, injury or other damage in excess of $500; or

     (c) Caused an interruption or impairment of a public service, including, without limitation, a governmental operation, a system of public communication or transportation or a supply of water, gas or electricity,

Ê the person is guilty of a category C felony and shall be punished as provided in NRS 193.130, and may be further punished by a fine of not more than $100,000. In addition to any other penalty, the court shall order the person to pay restitution.

 


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

ê2011 Statutes of Nevada, Page 3651 (Chapter 524, SB 376)ê

 

     4.  It is an affirmative defense to a charge made pursuant to this section that at the time of the alleged offense the defendant reasonably believed that:

     (a) The defendant was authorized to use or access the computer, system, network, telecommunications device, telecommunications service or information service and such use or access by the defendant was within the scope of that authorization; or

     (b) The owner or other person authorized to give consent would authorize the defendant to use or access the computer, system, network, telecommunications device, telecommunications service or information service.

     5.  A defendant who intends to offer an affirmative defense described in subsection 4 at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

     Sec. 2.  This act becomes effective upon passage and approval.

________

CHAPTER 525, AB 259

Assembly Bill No. 259–Committee on Judiciary

 

CHAPTER 525

 

[Approved: June 17, 2011]

 

AN ACT relating to legal services; requiring a portion of certain existing fees to be used for certain programs for legal services; and providing other matters properly relating thereto.

 

Legislative Counsel’s Digest:

       Existing law requires certain fees to be charged and collected in civil actions and provides that such fees must only be used 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. (NRS 19.0302) Section 1 of this bill authorizes such fees to also be used to support legal services for the indigent in counties whose population is less than 100,000. Section 1 also provides that, in counties whose population is 100,000 or more, (currently Clark and Washoe Counties) $10 of each fee, collected on the commencement or transfer of any action in district court or upon the filing of any first paper by a defendant, must be submitted to a program for legal services for the operation of programs for the indigent.

       Existing law also requires certain fees to be charged and collected at the time of recording a notice of default and election to sell. (NRS 107.080) Section 2 of this bill provides that $5 of each fee, collected at the time of recording a notice of default and election to sell, must be submitted to a program for legal services for the operation of programs for the indigent.

 


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

ê2011 Statutes of Nevada, Page 3652 (Chapter 525, AB 259)ê

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

     Section 1.  NRS 19.0302 is hereby amended to read as follows:

     19.0302  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 the defendant or defendants.................................. $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,

Ê 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

 


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

ê2011 Statutes of Nevada, Page 3653 (Chapter 525, AB 259)ê

 

     2.  [Fees] Except as otherwise provided in subsection 4, 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:

     (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) In a county whose population is less than 100,000, support legal services to the indigent and to be used by the organization operating the program for legal services that receives the fees charged pursuant to NRS 19.031 for the operation of programs for the indigent; or

           (9) 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] :

     (a) In a county whose population is 100,000 or more, an amount equal to $10 of each fee collected pursuant to paragraphs (a) and (b) of subsection 1 during the preceding month. The county treasurer shall remit quarterly to the organization operating the program for legal services that receives the fees charged pursuant to NRS 19.031 for the operation of programs for the indigent all the money received from the clerk of the court or county clerk pursuant to this paragraph.

     (b) All remaining fees collected pursuant to this section during the preceding month.

 


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

ê2011 Statutes of Nevada, Page 3654 (Chapter 525, AB 259)ê

 

     Sec. 2.  NRS 107.080 is hereby amended to read as follows:

     107.080  1.  Except as otherwise provided in NRS 107.085 and 107.086, 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) Except as otherwise provided in paragraph (b), in the case of any trust agreement coming into force:

           (1) On or after July 1, 1949, and before July 1, 1957, the grantor, the person who holds the title of record, 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, the person who holds the title of record, 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) In the case of any trust agreement which concerns owner-occupied housing as defined in NRS 107.086, the grantor, the person who holds the title of record, 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 that commences in the manner and subject to the requirements described in subsection 3 and expires 5 days before the date of sale, failed to make good the deficiency in performance or payment;

     (c) 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 the election to sell or cause to be sold the property to satisfy the obligation; and

     (d) 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, or the period provided in paragraph (b) 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 or, to the person who holds the title of record on the date the notice of default and election to sell is recorded, and, if the property is operated as a facility licensed under chapter 449 of NRS, to the State Board of Health, at their respective addresses, if known, otherwise to the address of the trust property. The notice of default and election to sell must:

     (a) 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; and

 


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

ê2011 Statutes of Nevada, Page 3655 (Chapter 525, AB 259)ê

 

     (b) If the property is a residential foreclosure, comply with the provisions of NRS 107.087.

     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, any other person entitled to notice pursuant to this section and, if the property is operated as a facility licensed under chapter 449 of NRS, the State Board of Health, 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;

     (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; and

     (d) If the property is a residential foreclosure, complying with the provisions of NRS 107.087.

     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 any 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 or any applicable provision of NRS 107.086 and 107.087;

     (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.  After a sale of property is conducted pursuant to this section, the trustee shall:

     (a) Within 30 days after the date of the sale, record the trustee’s deed upon sale in the office of the county recorder of the county in which the property is located; or

     (b) Within 20 days after the date of the sale, deliver the trustee’s deed upon sale to the successful bidder. Within 10 days after the date of delivery of the deed by the trustee, the successful bidder shall record the trustee’s deed upon sale in the office of the county recorder of the county in which the property is located.

 


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

ê2011 Statutes of Nevada, Page 3656 (Chapter 525, AB 259)ê

 

the trustee’s deed upon sale in the office of the county recorder of the county in which the property is located.

     9.  If the successful bidder fails to record the trustee’s deed upon sale pursuant to paragraph (b) of subsection 8, the successful bidder:

     (a) Is liable in a civil action to any party that is a senior lienholder against the property that is the subject of the sale in a sum of up to $500 and for reasonable attorney’s fees and the costs of bringing the action; and

     (b) Is liable in a civil action for any actual damages caused by the failure to comply with the provisions of subsection 8 and for reasonable attorney’s fees and the costs of bringing the action.

     10.  The county recorder shall, in addition to any other fee, at the time of recording a notice of default and election to sell collect:

     (a) A fee of $150 for deposit in the State General Fund.

     (b) A fee of [$50] $45 for deposit in the Account for Foreclosure Mediation, which is hereby created in the State General Fund. 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.

[Ê] (c) A fee of $5 to be paid over to the county treasurer on or before the fifth day of each month for the preceding calendar month. The county recorder may direct that 1.5 percent of the fees collected by the county recorder pursuant to this paragraph be transferred into a special account for use by the office of the county recorder. The county treasurer shall remit quarterly to the organization operating the program for legal services that receives the fees charged pursuant to NRS 19.031 for the operation of programs for the indigent all the money received from the county recorder pursuant to this paragraph.

     11.  The fees collected pursuant to [this subsection] paragraphs (a) and (b) of subsection 10 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 State General Fund or the Account for Foreclosure Mediation as prescribed pursuant to [this] subsection [.] 10. 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 pursuant to this subsection to the State Controller for credit to the State General Fund or the Account as prescribed in [this] subsection [.

     11.] 10.

     12.  The beneficiary, the successor in interest of the beneficiary or the trustee who causes to be recorded the notice of default and election to sell shall not charge the grantor or the successor in interest of the grantor any portion of any fee required to be paid pursuant to subsection 10.

     [12.] 13.  As used in this section, “residential foreclosure” means the sale of a single family residence under a power of sale granted by this section. As used in this subsection, “single family residence”:

     (a) Means a structure that is comprised of not more than four units.

     (b) Does not include any time share or other property regulated under chapter 119A of NRS.

     Sec. 3.  This act becomes effective on July 1, 2011.

________

 

Link to Page 3657