HOUSE BILL 380
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
William "Bill" R. Rehm
AN ACT
RELATING TO PRIVATE INVESTIGATORS; AMENDING LICENSING REQUIREMENTS UNDER THE PRIVATE INVESTIGATIONS ACT; IMPOSING PENALTIES ON PRIVATE PATROL OPERATORS WHO HIRE AN UNLICENSED OR UNREGISTERED PATROL EMPLOYEE; INCREASING EXISTING PENALTIES IN THE PRIVATE INVESTIGATIONS ACT; AUTHORIZING THE REGULATION AND LICENSING DEPARTMENT TO SEEK AN INJUNCTION FOR A VIOLATION OF THE PRIVATE INVESTIGATIONS ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 61-27B-2 NMSA 1978 (being Laws 1993, Chapter 212, Section 2, as amended) is amended to read:
"61-27B-2. DEFINITIONS.--As used in the Private Investigations Act:
A. "armored car company" means a company that knowingly and willingly transports money and other negotiables for a fee or other remuneration;
B. "bodyguard" means an individual who physically performs the mission of personal security for another individual;
C. "branch office" means an office of a private investigation company or a private patrol company physically located in New Mexico and managed, controlled or directed by a private investigations manager or private patrol operations manager;
D. "client" means an individual or legal entity having a contract that authorizes services to be provided in return for financial or other consideration;
E. "conviction" means any final adjudication of guilty, whether pursuant to a plea of guilty or nolo contendere or otherwise and whether or not the sentence is deferred or suspended;
F. "department" means the regulation and licensing department;
G. "individual" means a single human being;
H. "legal business entity" means a sole proprietorship, corporation, partnership, limited liability company, limited liability partnership or other entity formed for business purposes;
I. "licensee" means a person licensed pursuant to the Private Investigations Act;
J. "person" means an individual or a legal business entity;
[J.] K. "polygraph examiner" means an individual licensed by the department to engage in the practice of polygraphy;
[K.] L. "polygraphy" means the process of employing an instrument designed to graphically record simultaneously the physiological changes in human respiration, cardiovascular activity, galvanic skin resistance or reflex for the purpose of lie detection and includes the reading and interpretation of polygraphic records and results or any other device used to measure truthfulness;
[L.] M. "private investigation company" means a legal business entity that provides private investigation services, the location of which may be within or outside of the state, provided that the private investigation services are performed within New Mexico;
[M.] N. "private investigator" means an individual who is licensed by the department to engage in business or who accepts employment to conduct an investigation pursuant to the Private Investigations Act to obtain information regarding:
(1) crime or wrongs done or threatened against the United States or any state or territory of the United States;
(2) a person;
(3) the location, disposition or recovery of lost or stolen property;
(4) the cause or responsibility for fires, losses, accidents or damage or injury to persons or properties;
(5) the securing of evidence to be used before a court, administrative tribunal, board or investigating committee or for a law enforcement officer; or
(6) the scene of a motor vehicle accident or evidence related to a motor vehicle accident;
[N.] O. "private investigations employee" means an individual who is registered by the department to work under the direct control and supervision of a private investigator for a private investigation company;
[O.] P. "private investigations manager" means an individual who:
(1) is licensed as a private investigator and is issued a license by the department as a private investigations manager;
(2) directs, controls or manages a private investigation company for the owner of the company; and
(3) is assigned to and operates from the private investigation company that the private investigations manager is licensed to manage or from a branch office of that private investigation company;
[P.] Q. "private patrol company" means a legal business entity, the location of which may be within or outside of the state, including an independent or proprietary commercial organization that provides private patrol operator services that are performed in New Mexico and the activities of which include employment of licensed private patrol operators or security guards;
[Q.] R. "private patrol employee" means an individual who is registered by the department to work under the direct control and supervision of a private patrol operator for a private patrol company;
[R.] S. "private patrol operations manager" means an individual who:
(1) is licensed as a private patrol operator or registered as a level three security guard and is issued a license by the department as a private patrol operations manager;
(2) directs, controls or manages a private patrol company for the owner of the company; and
(3) is assigned to and operates from the private patrol company that the private patrol operations manager is licensed to manage or from a branch office of that private patrol company;
[S.] T. "private patrol operator" means an individual who is licensed by the department to:
(1) conduct uniformed or nonuniformed services as a watchman, security guard or patrolman to protect property and persons on or in the property;
(2) prevent the theft, unlawful taking, loss, embezzlement, misappropriation or concealment of goods, wares, merchandise, money, bonds, stocks, notes, documents, papers or property of any kind; or
(3) perform the services required of a security guard or security dog handler or provide security services for an armored car company;
[T.] U. "proprietary commercial organization" means an organization or division of an organization that provides full- or part-time security guard services solely for itself;
[U.] V. "registrant" means an individual registered as a private investigations employee, a private patrol operations employee or a security guard at any level;
[V.] W. "security dog handler" means an individual who patrols with dogs to detect illegal substances or explosives;
[W.] X. "security guard" means an individual who is registered to engage in uniformed or nonuniformed services under the direct control and supervision of a licensed private patrol operator or a private patrol operations manager to perform such security missions as watchman, fixed post guard, dog handler, patrolman or other person to protect property or prevent thefts; and
[X.] Y. "special event" means a parade or other public or private event of short duration requiring security." Section 2. Section 61-27B-3 NMSA 1978 (being Laws 1993, Chapter 212, Section 3, as amended) is amended to read:
"61-27B-3. LICENSE REQUIRED.--
A. It is unlawful for an individual to:
[A.] (1) act as a private investigator, private patrol operator, security guard, private investigations employee, private investigations manager or private patrol operations manager or to make any representation as being a licensee or registrant unless the individual is licensed by the department pursuant to the Private Investigations Act;
[B.] (2) render physical protection for remuneration as a bodyguard unless the individual is licensed as a private investigator or a private patrol operator;
[C.] (3) continue to act as a private investigator, private patrol operator, security guard, private investigations employee, private investigations manager or private patrol operations manager if the individual's license issued pursuant to the Private Investigations Act has expired;
[D.] (4) falsely represent that the individual is employed by a licensee; or
[E.] (5) practice polygraphy for any remuneration without a license issued by the department in accordance with the Private Investigations Act.
B. It is unlawful for a private patrol operator to contract with or employ a person to perform duties as a security guard, private patrol operations manager or private patrol employee unless that person is licensed or registered by the department to perform those duties pursuant to the Private Investigations Act."
Section 3. Section 61-27B-27 NMSA 1978 (being Laws 1993, Chapter 212, Section 14, as amended) is amended to read:
"61-27B-27. HEARING--PENALTIES.--
A. A person who is denied a license or registration or who has a license or registration suspended or revoked shall be entitled to a hearing before the department if within twenty days after the denial, suspension or revocation a request for a hearing is received by the department. The procedures of the Uniform Licensing Act shall be followed pertaining to the hearing to the extent that they do not conflict with the provisions of the Private Investigations Act.
B. In accordance with the provisions of the Uniform Licensing Act, and in addition to other penalties provided by law, the department may impose the following:
(1) for a violation of the Private Investigations Act, a civil penalty not to exceed one thousand dollars ($1,000) for each violation; [and]
(2) against a person who is found by the department to be engaging in a practice regulated by the department without an appropriate license or registration, civil penalties not to exceed [one thousand dollars ($1,000)] five thousand dollars ($5,000); and
(3) against a private patrol operator who contracts with or employs another person to engage in a practice regulated by the department under the Private Investigations Act without an appropriate license or registration, civil penalties not to exceed five thousand dollars ($5,000)."
Section 4. Section 61-27B-32 NMSA 1978 (being Laws 1993, Chapter 212, Section 20, as amended) is amended to read:
"61-27B-32. PENALTIES.--
A. A person who engages in a business regulated by the Private Investigations Act who fraudulently makes a representation as being a licensee or registrant is guilty of a misdemeanor and if convicted shall be sentenced pursuant to Section 31-19-1 NMSA 1978.
B. An individual who fraudulently represents that the individual is employed by a licensee is guilty of a petty misdemeanor and if convicted shall be sentenced pursuant to Section 31-19-1 NMSA 1978.
C. A private patrol operator who contracts with or employs another person to engage in a practice regulated by the department under the Private Investigations Act without an appropriate license or registration is guilty of a petty misdemeanor and if convicted shall be sentenced pursuant to Section 31-19-1 NMSA 1978.
[C.] D. A person who violates a mandatory requirement, as set forth by the department in rule, of the Private Investigations Act is guilty of a petty misdemeanor except as provided in Subsection A of this section and if convicted shall be sentenced pursuant to Section 31-19-1 NMSA 1978.
E. Upon a second conviction pursuant to this section, an offender is guilty of a fourth degree felony and if convicted shall be sentenced pursuant to the Criminal Sentencing Act."
Section 5. A new section of the Private Investigations Act is enacted to read:
"[NEW MATERIAL] ENFORCEMENT--INJUNCTION.--
A. Whenever the department has reasonable cause to believe that a person has violated a provision of the Private Investigations Act or a rule adopted pursuant to that act and the violation creates a safety risk for the community and immediate enforcement is deemed necessary, the department may issue a cease and desist order to require the person to cease the violation. At any time after service of the order to cease and desist, a person may request a prompt hearing to determine whether a violation occurred. If a person fails to comply with a cease and desist order within twenty-four hours, the department may bring a suit for a temporary restraining order and for injunctive relief to prevent further violations.
B. Whenever the department possesses evidence that indicates a person has engaged in or intends to engage in an act or practice constituting a violation of the Private Investigations Act or a rule adopted pursuant to that act, the department may seek, and the district court of Santa Fe county may issue, an order temporarily or permanently restraining or enjoining the act or practice. The department shall not be required to post a bond when seeking a temporary or permanent injunction."
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