HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR
HOUSE BILL 380
49th legislature - STATE OF NEW MEXICO - first session, 2009
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-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 2. 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 3. 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] for a first or second conviction 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] for a first or second conviction 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 misdemeanor and for a first or second conviction 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] for a first or second conviction shall be sentenced pursuant to Section 31-19-1 NMSA 1978.
E. Upon a third or subsequent conviction pursuant to this section, an offender is guilty of a fourth degree felony and upon conviction shall be sentenced pursuant to the Criminal Sentencing Act."
Section 4. 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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