Assembly Bill No. 109–Committee on Commerce and Labor

(On Behalf of Attorney General)

February 4, 1999

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Referred to Committee on Commerce and Labor

 

SUMMARY—Makes various changes regarding deceptive trade practices. (BDR 52-292)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to deceptive trade practices; authorizing the director of the department of business and industry and the commissioner of consumer affairs to make public the name of any person alleged to have committed a deceptive trade practice; requiring the commissioner to make public upon request, any assurance of discontinuance accepted by the commissioner or the director; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 598.0979 is hereby amended to read as follows:

1-2 598.0979 1. Notwithstanding the requirement of knowledge as an

1-3 element of a deceptive trade practice, when the commissioner or director

1-4 has cause to believe that a person has engaged or is engaging in any

1-5 deceptive trade practice, knowingly or otherwise, he may request in

1-6 writing that the attorney general represent him in instituting an appropriate

1-7 legal proceeding, including, without limitation, an application for an

1-8 injunction or temporary restraining order prohibiting the person from

1-9 continuing the [practices.] deceptive trade practice. The court may make

1-10 orders or judgments necessary to prevent the use by the person of any such

1-11 deceptive trade practice or to restore to any other person any money or

1-12 property which may have been acquired by the deceptive trade practice.

1-13 2. [Where] If the commissioner or director has the authority to

1-14 institute a civil action or other proceeding, in lieu thereof or as a part

1-15 thereof, he may accept an assurance of discontinuance of any deceptive

2-1 trade practice. This assurance may include a stipulation for the payment by

2-2 the alleged violator of:

2-3 (a) The costs of investigation and the costs of instituting the action or

2-4 proceeding;

2-5 (b) Any amount of money which he may be required to pay pursuant to

2-6 the provisions of NRS 598.0971 in lieu of any administrative fine; and

2-7 (c) The restitution of any money or property acquired by any deceptive

2-8 trade practice.

2-9 [Except as otherwise provided in this subsection, any assurance of

2-10 discontinuance accepted by the commissioner or director and any

2-11 stipulation filed with the court is confidential to the parties to the action or

2-12 proceeding and to the court and its employees. Upon final judgment by the

2-13 court that an injunction or a temporary restraining order, issued as

2-14 provided in subsection 1 of this section, has been violated, an assurance of

2-15 discontinuance has been violated or a person has engaged in the same

2-16 deceptive trade practice as had previously been enjoined, the assurance of

2-17 discontinuance or stipulation becomes a public record.] Proof by a

2-18 preponderance of the evidence of a violation of an assurance of

2-19 discontinuance constitutes prima facie evidence of a deceptive trade

2-20 practice for the purpose of any civil action or proceeding brought

2-21 thereafter by the commissioner or director, whether a new action or a

2-22 subsequent motion or petition in any pending action or proceeding.

2-23 Sec. 2. NRS 598.098 is hereby amended to read as follows:

2-24 598.098 1. The provisions of NRS 598.0903 to 598.0999, inclusive,

2-25 do not prohibit the commissioner or director from disclosing to the

2-26 attorney general, any district attorney or any law enforcement [officer]

2-27 agency the fact that a crime has been committed by any person, if this fact

2-28 has become known as a result of any investigation conducted pursuant to

2-29 the provisions of NRS 598.0903 to 598.0999, inclusive.

2-30 2. [Subject to the provisions of subsection 2 of NRS 598.0979 and

2-31 except as otherwise provided in this section, the] The commissioner or

2-32 director may [not make] :

2-33 (a) Make public the name of any person alleged to have committed a

2-34 deceptive trade practice [. This subsection does not:

2-35 (a) Prevent the commissioner or director from issuing] ; and

2-36 (b) Issue public statements describing or warning of any course of

2-37 conduct which constitutes a deceptive trade practice.

2-38 [(b) Apply to a person who is subject to an order issued pursuant to

2-39 subsection 5 of NRS 598.0971.]

2-40 3. Upon request, the commissioner [may:] must:

2-41 (a) Disclose the number of written complaints concerning a person

2-42 received by the commissioner during the current or immediately preceding

3-1 fiscal year. A disclosure made pursuant to this paragraph must include the

3-2 disposition of the complaint disclosed.

3-3 (b) Make public any order to cease and desist issued pursuant to

3-4 subsection 5 of NRS 598.0971.

3-5 (c) Make public any assurance of discontinuance accepted by the

3-6 commissioner or director pursuant to subsection 2 of NRS 598.0979.

3-7 This subsection does not authorize the commissioner to disclose or make

3-8 public the contents of any complaint described in paragraph (a) . [or the

3-9 record of or any other information concerning a hearing conducted in

3-10 relation to the issuance of an order to cease and desist described in

3-11 paragraph (b).]

3-12 4. The commissioner may adopt regulations authorizing the disclosure

3-13 of information concerning any complaint or number of complaints

3-14 received by the commissioner or director relating to a person who has been

3-15 convicted of violating a provision of NRS 598.0903 to 598.0999,

3-16 inclusive.

3-17 Sec. 3. NRS 598.281 is hereby amended to read as follows:

3-18 598.281 As used in NRS 598.281 to 598.289, inclusive, unless the

3-19 context otherwise requires:

3-20 1. "Buyer" means a natural person who is solicited to purchase or who

3-21 purchases the services of an organization which provides credit services.

3-22 2. "Commissioner" means the commissioner of consumer affairs.

3-23 3. "Division" means the consumer affairs division of the department of

3-24 business and industry.

3-25 4. "Extension of credit" means the right to defer payment of debt or to

3-26 incur debt and defer its payment, offered or granted primarily for personal,

3-27 family or household purposes.

3-28 5. "Organization":

3-29 (a) Means a person who, with respect to the extension of credit by

3-30 others, sells, provides or performs, or represents that he can or will sell,

3-31 provide or perform, any of the following services, in return for the

3-32 payment of money or other valuable consideration:

3-33 (1) Improving a buyer’s credit record, history or rating.

3-34 (2) Obtaining an extension of credit for a buyer.

3-35 (3) Providing counseling or assistance to a person in establishing or

3-36 effecting a plan for the payment of his indebtedness, unless [such] that

3-37 counseling or assistance is provided by and is within the scope of the

3-38 authorized practice of a debt adjuster licensed pursuant to chapter 676 of

3-39 NRS.

3-40 (4) Providing advice or assistance to a buyer with regard to [either]

3-41 subparagraph (1) or (2).

3-42 (b) Does not include : [any of the following:]

4-1 (1) A person organized, chartered or holding a license or

4-2 authorization certificate to make loans or extensions of credit pursuant to

4-3 the laws of this state or the United States who is subject to regulation and

4-4 supervision by an officer or agency of this state or the United States.

4-5 (2) A bank or savings and loan institution whose deposits or accounts

4-6 are eligible for insurance by the Federal Deposit Insurance Corporation.

4-7 (3) [A nonprofit organization exempt from taxation under section

4-8 501(c)(3) of the Internal Revenue Code.

4-9 (4)] A person licensed as a real estate broker by this state where the

4-10 person is acting within the course and scope of that license [.

4-11 (5)] , unless the person is rendering those services in the course and

4-12 scope of employment by or other affiliation with an organization.

4-13 (4) A person licensed to practice law in this state where the person

4-14 renders services within the course and scope of his practice as an attorney

4-15 at law, unless the person is rendering [such] those services in the course

4-16 and scope of employment by or other affiliation with an organization.

4-17 [(6)] (5) A broker-dealer registered with the Securities and Exchange

4-18 Commission or the Commodity Futures Trading Commission where the

4-19 broker-dealer is acting within the course and scope of such regulation.

4-20 [(7)] (6) A person licensed as a debt adjuster pursuant to chapter 676

4-21 of NRS.

4-22 [(8)] (7) A reporting agency.

4-23 6. "Reporting agency" means a person who, for fees, dues or on a

4-24 cooperative nonprofit basis, regularly engages in whole or in part in the

4-25 business of assembling or evaluating information regarding the credit of or

4-26 other information regarding consumers to furnish consumer reports to third

4-27 parties, regardless of the means or facility of commerce used to prepare or

4-28 furnish the consumer reports. The term does not include:

4-29 (a) A person solely for the reason that he conveys a decision regarding

4-30 whether to guarantee a check in response to a request by a third party;

4-31 (b) A person who obtains or creates a consumer report and provides the

4-32 report or information contained in it to a subsidiary or affiliate; or

4-33 (c) A person licensed pursuant to chapter 463 of NRS.

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