Communiqué Past Articles Communiqué - September 2007 | Communiqué - September 2007 |
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New Laws Impacting Civil Practice in NevadaBy Barbara Buckley The 2007 Legislature made great strides in the area of business law and civil practice, particularly in strengthening existing laws protecting consumers from unfair lending or business practices. This article will briefly highlight some of the bills passed that impact these topics. For more detailed information on any of these bills, please visit the Legislature's Web site at www.leg.state.nv.us where copies of the enrolled bills and minutes from the legislative hearings are available. Mortgage lendingAssembly Bill 329 requires the Commissioner of Financial Institutions to adopt regulations on nontraditional mortgage loan products and practices, including interest‑only loans and payment option adjustable-rate mortgages. Assembly Bill 375 offers safeguards to mortgagees as well as to those who lend money to companies that make mortgages, including: (1) revising certain educational requirements; (2) requiring reasonable servicing fees; (3) ensuring that all money paid to brokers or bankers for servicing loans is deposited in an insured account and kept separate from other funds; and (4) mandating more frequent reporting to the State. Assembly Bill 440 provides additional protection for borrowers, especially those consumers who need more unconventional mortgages. Under AB 440, it is an unfair lending practice to knowingly make a low-document, no-document, or stated-document home loan based solely on the borrower's home equity, or without determining the borrower's ability to repay, unless the loan is a reverse mortgage. The bill creates the crime of mortgage lending fraud, prohibits certain acts by foreclosure consultants, and allows aggrieved homeowners to bring an action to recover damages. Civil actionsAssembly Bill 4 clarifies that emergency assistance to a woman during labor or child birth, provided free of charge and in good faith, qualifies for immunity from civil liability. Assembly Bill 158 establishes the Registry of Advance Directives for Health Care. Assembly Bill 483 adds items to the list of property of a judgment debtor that is exempt from execution: (1) money reasonably deposited with a landlord to secure an agreement to rent or lease a dwelling used as a primary residence; (2) up to $1,000 in personal property; and (3) the proceeds of an earned income tax credit provided by federal or State law. The bill increases the homestead exemption to $550,000, and increases the limitation on damages that may be awarded in a tort action brought against a governmental entity or its officers or employees to $75,000 in October 2007 and to $100,000 in October 2011. Senate Bill 7 makes a person liable in a civil action for damages that result from the use and consumption of alcohol and controlled substances by an underage individual under certain circumstances. Senate Bill 177 adopts the Uniform Foreign-Country Money Judgments Recognition Act, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Senate Bill 298 provides that a person who injures or kills someone's dog or cat may be liable for economic damages not to exceed $5,000, unless the action was necessary to protect his safety or the safety of another person. Collection agenciesAssembly Bill 47 provides that licensed attorneys do not fall under the definition of "collection agency" if they are retained to collect payment of clients' claims in the usual course of their practice. Assembly Bill 127 authorizes a person who receives a call from a collection agency to record the call under certain conditions. To verify a debt, a collection agency must obtain documents related to the debt from the creditor and to provide those documents to the debtor. Additional changes include deeming violations of certain provisions of the federal Fair Debt Collection Practices Act to be violations of Nevada law. Trade practicesAssembly Bill 2 requires a body shop or garage to perform repairs on a motor vehicle according to any manufacturer's specifications and the written estimate agreed upon by the shop or garage and the person authorizing the repairs. When it is determined that the cost of an authorized repair will exceed the written estimate by 20 percent or $100, whichever is less, the body shop or garage must notify the owner and insurer of the vehicle. The trade practices presently required of garages are applied to body shops. Assembly Bill 24 provides that a credit reporting agency may not charge a consumer more than $10 to place, remove, or temporarily release a security freeze on his file. Fees are prohibited for persons 65 years of age or older. Assembly Bill 279 provides that 60 percent of the unredeemed or uncharged value of a gift certificate sold or issued in Nevada is presumed abandoned on its expiration date. The State Treasurer must transfer all funds reported as gift certificates (minus certain costs) into an educational trust fund. Assembly Bill 393 applies Nevada's deceptive trade practice laws to car repair businesses and allows the State's Consumer Affairs Division to fine someone up to $10,000 for engaging in such a practice. The bill creates a revolving account that the Attorney General may use for sting operations and requires anyone who operates a garage to post a $5,000 performance bond with the State. Senate Bill 53 provides that a person is engaging in a deceptive trade practice if he advertises or conducts a live musical performance through use of a false, deceptive, or misleading affiliation, connection, or association with a recording group. The bill does not apply to clearly labeled tributes or salutes, or to those who have the legal right to use the name of a recording group. Senate Bill 302 prohibits a credit card issuer from increasing the interest rate charged to a cardholder based on a late payment by the cardholder to another issuer or creditor that is not an affiliate or subsidiary of that issuer or creditor. Eminent domainAssembly Bill 102 and Assembly Joint Resolution No. 3 provide that, except under certain circumstances, private property may not be taken through eminent domain if it is intended for transfer to a private party. The measures also provide for the manner of determining just compensation to the property owner and give the owner the opportunity to reacquire the land if the entity that took it fails to put it to use within 15 years. AB 102 puts these provisions immediately into statute, and if approved by the voters in 2008, A.J.R. 3 will supersede the PISTOL initiative. Senate Bill 16 provides that when money is deposited in an eminent domain action, it must be deposited in a separate account and the property owner is entitled to some or all of the interest earned. Landlords and tenantsAssembly Bill 195 revises landlord and tenant law. Changes include: (1) requiring a tenant to notify a landlord in writing of the landlord's failure to maintain a dwelling unit in habitable condition and to request repairs; (2) allowing tenants to withhold rent for a landlord's breach of a rental agreement or failure to keep the dwelling unit in a habitable condition; and (3) authorizing justice courts to establish mechanisms for creating escrow accounts into which tenants may deposit rent being withheld because of a dispute with a landlord. Senate Bill 168 enacts the Uniform Assignment of Rents Act, promulgated by the NCCUSL in 2005. Manufactured housing and manufactured home parksAssembly Bill 216 requires certain landlords of manufactured home parks to prepare a residential impact statement before a final decision is made by the appropriate local governing body concerning the closure or conversion of the park, or at the conclusion of the process of closing or converting the park, whichever is earlier. Assembly Bill 304 includes multiple changes for manufactured home parks, including: (1) requiring a landlord to give a prospective tenant copies of certain documents before accepting an application fee; (2) allowing an action to rescind a contract and recover damages and attorney's fees if someone makes a payment toward purchase or placement of a home in reasonable reliance on a written statement that proves to be false or misleading; (3) requiring the landlord must pay the costs associated with an appraisal and with removing and disposing of the home when a landlord converts an existing manufactured home park and a tenant chooses not to move his manufactured home; (4) increasing from 50 to 100 the number of miles a tenant's manufactured home may be moved at the expense of the landlord; and (5) increasing the maximum amount of a landlord's lien for unpaid rent and utilities to $2,500. Legislation governing business and corporationsAssembly Bill 80 requires any business entity for which the owners, investors, officers, directors, members, other organizers, or business purpose are not publicly disclosed to register with the Secretary of State, and provide identifying information before soliciting or receiving campaign contributions or making contributions or expenditures designed to affect the outcome of an election. These entities must report campaign contributions and expenditures. The registration and reporting information must be publicly available. Senate Bill 72 adopts the 2001 Uniform Limited Partnership Act. Senate Bill 242 enacts the Model Registered Agents Act. Senate Bill 483 revises provisions governing various corporations, limited-liability companies, business and professional associations. This extensive measure contains the revisions to Nevada's business law statutes proposed by the Business Law's Executive Committee, State Bar of Nevada. In conclusion, this article summarizes only a small number of the bills passed by the Legislature in 2007. Additional areas impacted include trusts, abandoned property, recovery of Medicaid costs by the State, regulation of Internet service providers, contractors and construction defects, employment law, planning and zoning laws, public records and open meetings, and energy-related bills, just to name a few. Barbara Buckley is currently serving as Speaker of the Nevada Assembly, the first woman in Nevada to hold that position. Barbara has served in the Assembly, representing District 8 in Clark County, since 1994. Prior to becoming Speaker, she served for three sessions as Assembly Majority Leader and has chaired the Assembly Committee on Commerce and Labor and the Legislative Committee on Children, Youth and Families. Barbara is also the executive director of the Clark County Legal Services Program, Inc., a nonprofit, public interest law firm providing legal advice and advocacy for individuals who cannot afford a lawyer. She graduated summa cum laude from the University of Arizona Law School and received her B.A. from the University of Nevada Las Vegas. The 2007 Legislature and Effect on Clark CountyBy Elizabeth Macias Quillin Each session presents special issues and challenges. The 2007 Session was no different. The following issues were of significance to Clark County, both in terms of economic and operational impact. More judgesFollowing negotiations between Clark County and the Eighth Judicial District, the Legislature approved the addition of six judges for the Eighth Judicial District and two additional judges for the Second Judicial District. With respect to the Eighth Judicial District, five of the six judges will be assigned to the Family Court. The remaining judge will handle civil/criminal matters. Pursuant to statute, the state is responsible for paying judicial salaries and benefits. The remaining burden of providing staff, IT equipment and the capital expenditures necessary to create courtrooms, chambers and office space for staff fall on the County. Green tax abatementsOne of the highest profile issues of the 2007 Legislative session was "green" building tax incentives. The Legislature passed AB 3 during the 2005 special session, which allowed for sales tax abatements as well as property tax abatements for qualifying "green" building projects. A liberal interpretation of that legislation by the Nevada Tax Commission and Economic Development Commission led to projects totaling over $19 billion qualifying for the abatements, resulting in up to an approximately $1 billion loss in revenue from state and local entities. The majority of those projects are in Clark County. The 2007 Legislature revised the available green tax breaks through AB 621, which restricts the number of projects qualifying for sales tax abatements to six projects, lowers the maximum cap on property tax abatements, and eliminates the value of land in the tax abatement. AB 621 also holds schools harmless by eliminating the portion of the tax abatement related to school finance. Although the resulting legislation in AB 621 significantly reduces the abatement for green buildings, it also results in local government shouldering 90% of the abatement impact. Tax rates that will be abated for qualifying projects include voter-approved taxes that benefit family courts, fire services, police staffing, 911 systems, medical assistance for indigent persons, and libraries. Clark County is currently working with fiscal analysts to determine the actual fiscal impact to these and other services provided by Clark County. TransportationTransportation was a hot topic at the 2007 legislative session. After considering over a dozen different funding sources and despite several last minute political maneuvers the transportation package ended up with just three basic components.
Significantly, a provision stating, "What's raised in a county must be spent in that county" was added at the last minute. Eminent domainThere was much concern following the U.S. Supreme Court's ruling in Kelo vs. City of New London. Following negotiations between legislators, interested parties and county elected officials, the legislature passed AB 102 which provides that private property cannot be condemned for economic reasons and then be transferred to another private party for economic development. AB 102 will serve as the vehicle for the statutory implementation of the constitutional language. The bill is intended to give immediate relief to citizens, while constitutional amendment (AJR 3) progresses through the constitutional amendment process. Child welfareThe Legislature took a very active interest in child welfare issues. Much of the resulting legislation will have a significant effect on the operations of Clark County's Department of Family Services and Child Haven. AB 147: Restrictions on children placed in shelter careThis bill makes numerous changes in statutory provisions dealing with child welfare including the following:
AB 261: Release of informationCurrent law makes certain reports and records concerning reports of child abuse or neglect confidential except in certain circumstances and authorizes the release of certain information relating to data and information concerning reports and investigations of abuse and neglect of a child to specific persons. This bill makes changes relating to child abuse or neglect reports as follows:
AB 263: Multidisciplinary teams and child fatalitiesCurrent law authorizes an agency that provides child welfare services to organize one or more multidisciplinary teams to review the death of a child. Section 4 of this bill authorizes the Administrator of the Division of Child and Family Services of the State Department of Health and Human Services to organize a multidisciplinary team to oversee the child fatality review process for such agencies. Section 5 imposes civil penalties upon members of teams and committees involved in the child fatality review process who disclose any confidential information concerning the death of the child. Section 8 of the bill requires the Division of Child and Family Services to evaluate child welfare services provided in this state and provides that the Division must require corrective action against an agency that provides child welfare services if it fails to comply with federal or state laws relating to the provision of child welfare services. If such an agency does not take corrective action within a timely manner, the Division shall take certain action against the agency. Section 12 of the bill expands existing law by authorizing a designee of an agency investigating a report of abuse or neglect of a child to interview a sibling of the child concerning any possible abuse or neglect without the consent of any person responsible for the child's welfare. AB 507: Requires licensure of Child HavenOf significance to Clark County, AB 507 requires Child Haven to be licensed by the Bureau of Services for Child Care of the Division of Child and Family Services of the Department of Health and Human Services. The bill also requires certain facilities that have custody of children pursuant to the order of the court to receive training within 30 days after employment and annually thereafter concerning various issues affecting the health, welfare, safety, and civil and other rights of those children. Section 2 of this bill requires the Administrator of the Division of Child and Family Services of the Department of Health and Human Services or his designee to inspect physically any out-of-state facility to which a child from this State who is in the custody of the Division may be transferred (either before or at the time of the transfer) to ensure the appropriateness of the placement. Section 2 further requires the Administrator or his designee to inspect physically the facility and interview the child placed in the out-of-state facility at least one time each year. The bill also requires annual inspections of facilities that have custody of children pursuant to an order of a court that include the inspection of certain areas and requires that the reports of such inspections be made public. Additionally, current employees of impacted facilities must receive training no later than November 1, 2007. The bill also provides that child care facilities that must now be licensed by the state must do so no later than January 1, 2008. SB 356: Interim study on standards for removalEffective October 1, 2007, section 2 of this bill requires the Division of Child and Family Services of the State Department of Health and Human Services to adopt regulations establishing reasonable and uniform standards for determining whether immediate action is necessary to protect a child from injury, abuse, or neglect. Section 4 requires the Legislative Commission to appoint a subcommittee to conduct a study of issues relating to the placement of children in foster care and methods for reducing the number of children placed in foster care. SB 399: DCFS to coordinate and assist in training/recruitment activitiesThis bill revises provisions concerning the duties of the Division of Child and Family Services of the Department of Health and Human Services to specifically require the Division to coordinate with and assist certain nonprofit and community-based organizations in recruiting and training providers of family foster care and each agency which provides child welfare services in recruiting, training and licensing providers of family foster care. (NRS 432B.180) Effective Date: July 1, 2007. MiscellaneousAB 14: Graffiti billGraffiti is a significant problem in Clark County where the County annually spends over $2.5 million in abatement and cleanup costs. This bill imposes increased and mandatory fines and community service for those creating graffiti. The new measure also requires the suspension of driver's licenses from six months to two years. AB 489: TowingThis was a Clark County bill clarifying that the county may tow illegally parked vehicles from county property subject to due process requirements that allow a person whose car has been towed to request a hearing before a court within 4 working days. The lack of authority to tow cars became evident when attorneys refused to put change in the meters at the Regional Justice Center parking lot. ConclusionThis is a quick summary of some of the salient bills. There are others, too numerous to mention, that relate to marriage licensing, water wells, constables, group homes and fire marshals. For a comprehensive listing and description of these bills, please contact Sabra Smith-Newby, Director of Intergovernmental Affairs at 702/455-3530. Elizabeth Macias Quillin, Esq., is an Assistant County Manager for Clark County. Sabra Smith - Newby, Director of Intergovernmental Affairs, Jeff Wells, Assistant Chief Administrative Officer and Christine Skorupski, Public Information Officer, Department of Family Services contributed to this article. |
© Originally published in COMMUNIQUÉ (September, Vol. 28, No. 9), the official journal of the Clark County Bar Association. All rights reserved.