0001| SENATE BILL 333
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| DEDE FELDMAN
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0005|
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0006|
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0007|
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0008| FOR THE LEGISLATIVE HEALTH AND HUMAN SERVICES COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO CHARITIES; AMENDING THE NMSA 1978; REQUIRING
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0012| REGISTRATION, REPORTING AND STANDARDS OF CONDUCT FOR
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0013| CHARITABLE ORGANIZATIONS AND PROFESSIONAL FUNDRAISERS.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 57-22-1 NMSA 1978 (being Laws 1983,
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0017| Chapter 140, Section 1) is amended to read:
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0018| "57-22-1. SHORT TITLE.--[This act] Chapter 57,
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0019| Article 22 NMSA 1978 may be cited as the "Charitable
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0020| [Organizations and] Solicitations Act"."
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0021| Section 2. Section 57-22-2 NMSA 1978 (being Laws 1983,
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0022| Chapter 140, Section 2) is amended to read:
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0023| "57-22-2. PURPOSE.--[Whereas charitable organizations
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which have been granted tax-exempt status are required to
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serve the public interest] The purpose of the Charitable
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0001| [Organizations and] Solicitations Act is to authorize the
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0002| attorney general to monitor, supervise and enforce the
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0003| charitable purposes of [those] charitable organizations and
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0004| regulate professional fundraisers operating in this state."
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0005| Section 3. Section 57-22-3 NMSA 1978 (being Laws 1983,
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0006| Chapter 140, Section 3) is amended to read:
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0007| "57-22-3. DEFINITIONS.--As used in the Charitable
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0008| [Organizations and] Solicitations Act:
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0009| A. "charitable organization" means [any trust
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or nonprofit corporation which:
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(1) has applied for or has received tax-
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exempt status under Section 501(c)(3) of the Internal Revenue
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Code; and
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(2) does business in this state or holds
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property in this state for charitable purposes] any entity
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0016| that has been granted exemption from the federal income tax by
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0017| the United States commissioner of internal revenue as an
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0018| organization described in Sections 501(c)(3) and 501(c)(4) of
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0019| the Internal Revenue Code of 1986, as amended, or identifies
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0020| itself to the public as having a charitable purpose;
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0021| B. "charitable purpose" means [any purpose for
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which a charitable organization has been established to
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promote, directly or indirectly, the well-being of the public
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at large or the benefit of an indefinite number of persons]
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0025| a benevolent, social welfare, scientific, educational,
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0001| environmental, philanthropic, humane, patriotic, public
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0002| health, civic or other eleemosynary objective or an activity
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0003| conducted in support of or in the name of law enforcement
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0004| officers, firefighters or other persons who protect public
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0005| safety;
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0006| C. "contribution" means the promise, grant or
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0007| pledge of any money, credit or property of any kind or value
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0008| provided to a charitable organization in response to a
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0009| solicitation, but does not include program service revenue or
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0010| bona fide membership fees, dues or assessments; provided that
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0011| bona fide membership fees, dues or assessments do not include
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0012| contributions made in exchange for membership in a charitable
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0013| organization unless membership confers rights and benefits in
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0014| addition to receiving literature of the charitable
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0015| organization;
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0016| [C.] D. "educational institution" means: [a]
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0017|
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0018| (1) an entity organized and operated
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0019| primarily as a school, college or other instructional
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0020| institution with a defined curriculum, student body and
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0021| faculty, conducting classes on a regular basis; and
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0022| (2) auxiliary entities, including parent-
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0023| teacher organizations, booster and support clubs that support,
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0024| encourage or promote a school, college or other instructional
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0025| institution and its defined curriculum, student body, faculty,
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0001| facilities or activities;
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0002| E. "professional fundraiser" means a person that
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0003| solicits or employs or directs others to solicit contributions
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0004| from the public on behalf of a charitable organization in
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0005| exchange for compensation and has custody or control of the
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0006| contributions; provided that "professional fundraiser" does
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0007| not include a director, officer, bona fide employee or
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0008| salaried officer, volunteer, attorney, accountant or
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0009| investment counselor of a charitable organization;
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0010| F. "professional fundraising counsel" means a
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0011| person that provides services or employs or directs others to
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0012| provide services for compensation to a charitable organization
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0013| in the solicitation of contributions, including managing or
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0014| preparing materials to be used in conjunction with any
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0015| solicitation provided that the person does not:
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0016| (1) directly solicit contributions; or
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0017| (2) receive, have access to or control any
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0018| contribution received in response to the solicitation;
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0019| provided further that "professional fundraising counsel" does
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0020| not include a director, officer, bona fide employee or
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0021| salaried officer, volunteer, attorney, accountant or
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0022| investment counselor of a charitable organization;
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0023| [D.] G. "religious organization" means [any
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church or group organized for the purpose of divine worship,
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religious teaching or other specifically religious activity;
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and] a church, organization or group organized for the
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0002| purpose of divine worship or religious teaching or other
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0003| specific religious activity or any other organization that is
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0004| formed in association with or to primarily encourage, support
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0005| or promote the work, worship, fellowship or teachings of the
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0006| church, organization or group; and
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0007| [E.] H. "solicit" or "solicitation" means
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0008| [any request or appeal, either oral or written, or any
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endeavor to obtain, seek or plead for funds, property,
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financial assistance or other thing of value, including the
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promise or grant of any money or property of any kind or value
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for a charitable purpose, but excluding] any public
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0013| communication requesting a contribution or offering an
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0014| opportunity to participate in a game of chance, raffle or
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0015| similar event with the representation that the contribution or
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0016| participation will support a charitable purpose, and includes:
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0017| (1) any verbal request made in person or by
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0018| telephone, radio, television, electronic communication or
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0019| other media;
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0020| (2) any written or published request mailed,
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0021| sent, delivered, circulated, distributed, posted in a public
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0022| place, advertised or communicated through any medium to the
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0023| public;
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0024| (3) any sale or attempt to sell a good or
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0025| service; and
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0001| (4) any invitation to attend an assembly,
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0002| event, exhibition, performance or social gathering of any
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0003| kind.
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0004| A contribution is not required for a solicitation to
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0005| have occurred and "solicit" or solicitation" does not include
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0006| [(1)] direct grants or allocation of funds received or
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0007| solicited from any affiliated [fund raising] fundraising
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0008| organization by a member agency [and (2)] or unsolicited
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0009| contributions received from any individual donor, foundation,
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0010| trust, governmental agency or other source, unless such
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0011| contributions are received in conjunction with a solicitation
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0012| drive."
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0013| Section 4. Section 57-22-4 NMSA 1978 (being Laws 1983,
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0014| Chapter 140, Section 4) is amended to read:
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0015| "57-22-4. APPLICATION OF ACT.--
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0016| A. The Charitable [Organizations and]
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0017| Solicitations Act shall not apply to [all charitable
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organizations except:
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(1)] a religious [organizations]
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0020| organization, even if it is a charitable organization.
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0021| B. Exempt from the registration and reporting
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0022| requirements of the Charitable Solicitations Act are:
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0023| [(2)] (1) educational institutions and
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0024| organizations defined in Section 6-5A-1 NMSA 1978;
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0025| [(3)] (2) a charitable [organizations
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which do] organization that does not actually raise or
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0002| receive contributions in cash, goods or services valued in
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0003| excess of [two thousand five hundred dollars ($2,500)] five
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0004| thousand dollars ($5,000) during a twelve-month period;
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0005| provided that the organization does not use a professional
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0006| fundraiser and submits information required by the attorney
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0007| general to qualify for the exemption available pursuant to
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0008| this subsection; and
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0009| (3) persons soliciting for an individual or
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0010| group that has suffered a medical or other catastrophe and:
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0011| (a) the individual or group is
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0012| identified by name at the time of the solicitation;
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0013| (b) the purpose for the solicited
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0014| contribution is clearly stated; and
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0015| (c) the gross contributions collected,
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0016| without any deductions for or by the solicitor or any other
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0017| person, are deposited directly to an account in the name of
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0018| the individual or group in a local federally insured financial
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0019| institution established for that sole purpose and solely used
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0020| for the direct benefit of the named individual or group as
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0021| beneficiary.
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0022| [B.] C. The Charitable [Organizations and]
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0023| Solicitations Act shall apply to charitable organizations and
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0024| professional fundraisers regardless of any contrary
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0025| provisions of any instrument."
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0001| Section 5. Section 57-22-5 NMSA 1978 (being Laws 1983,
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0002| Chapter 140, Section 5) is amended to read:
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0003| "57-22-5. ATTORNEY GENERAL TO MAINTAIN REGISTER OF
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0004| CHARITABLE ORGANIZATIONS AS PUBLIC RECORD.--The attorney
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0005| general shall establish and maintain a register of all
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0006| documents filed by charitable organizations in accordance with
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0007| the Charitable [Organizations and] Solicitations Act. The
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0008| register shall be open to public inspection except that the
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0009| attorney general may withhold from public inspection documents
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0010| or information obtained in the course of an investigation
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0011| undertaken pursuant to the provisions of that act or [which]
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0012| that otherwise may be withheld from public inspection by
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0013| law."
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0014| Section 6. Section 57-22-6 NMSA 1978 (being Laws 1983,
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0015| Chapter 140, Section 6, as amended) is amended to read:
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0016| "57-22-6. FILING OF REQUIRED DOCUMENTS.--
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0017| [A. Every charitable organization shall file with
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the office of the attorney general within six months of the
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effective date of the Charitable Organizations and
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Solicitations Act or within six months of the date on which
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the charitable organization becomes subject to the Charitable
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Organizations and Solicitations Act, whichever shall occur
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first:
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(1) an initial registration to be submitted
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on the form provided for that purpose by the attorney general;
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and
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(2) a copy of the articles of incorporation
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or other instrument creating the charitable organization and
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defining its purpose, powers and duties.
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B. In addition to the documents required in
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Subsection A of this section, every charitable organization
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shall file, within seventy-five days of the close of the
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fiscal year first following registration and of each fiscal
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year thereafter, an annual report, under oath, on the form
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provided by the attorney general for that purpose.]
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0011| A. A charitable organization subject to the
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0012| Charitable Solicitations Act's registration and reporting
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0013| requirements that intends to solicit or have another person or
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0014| a professional fundraiser solicit on its behalf shall, before
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0015| it may solicit or have solicitations made on its behalf in
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0016| this state:
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0017| (1) register with the attorney general on a
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0018| form provided by the attorney general;
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0019| (2) provide a copy of its articles of
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0020| incorporation, articles of association and certificate of
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0021| authority if a foreign corporation, or the instrument creating
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0022| a charitable trust and defining its purpose, powers and duties
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0023| with its registration filing; and
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0024| (3) correct any deficiencies in its
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0025| registration filing after notification by the attorney general
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0001| of deficiencies, if any.
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0002| [C.] B. The attorney general shall notify
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0003| each charitable organization required to register within ten
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0004| business days of his receipt of the registration form of any
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0005| deficiencies in the registration and may make [such] rules
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0006| [and regulations] in accordance with the State Rules Act as
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0007| are necessary for the proper administration of this section,
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0008| including [but not limited to]:
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0009| (1) requirements for filing additional
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0010| information, including disclosure of professional fundraising
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0011| counsel retained by the charitable organization; and
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0012| (2) provisions for suspending the filing of
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0013| reports [where] or granting an exemption from the
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0014| registration and reporting requirements of this section for a
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0015| charitable organization subject to audit, registration,
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0016| charter or other requirements of a statewide, regional or
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0017| national association and if it is determined that such
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0018| reports [are no longer] or registration is not necessary
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0019| for the protection of the public interest.
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0020| [D. This section shall not apply to any local
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affiliate of a statewide or national organization for which
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all local fundraising expenses are paid by the parent
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organization if the parent organization files a report
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required by this section.
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E.] C. In addition to any other reporting
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0001| requirements pursuant to the Charitable [Organizations and]
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0002| Solicitations Act, every charitable organization [to which
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that act applies and] that has received tax-exempt status
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0004| [under] pursuant to Section 501(c)(3) or 501(c)(4) of
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0005| the federal Internal Revenue Code of 1986, as amended, and is
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0006| required to file a form 990 [or], 990EZ or 990PF pursuant
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0007| to the Internal Revenue Code of 1986, as amended, shall file
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0008| that form and the accompanying schedule A annually with the
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0009| office of the attorney general up to six months following the
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0010| close of the charitable organization's fiscal year.
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0011| Extensions of time for filing may be allowed at the discretion
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0012| of the attorney general for good cause shown. Such forms
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0013| shall be public records and available for public inspection.
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0014| Organizations that do not file a form 990, 990EZ or 990PF
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0015| pursuant to the Internal Revenue Code of 1986, as amended,
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0016| shall file an annual report, under oath, on the form provided
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0017| by the attorney general for that purpose. The financial
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0018| report of a charitable organization that received total
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0019| revenue in excess of five hundred thousand dollars ($500,000)
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0020| shall be audited by an independent certified public
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0021| accountant. Audits shall be performed in accordance with
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0022| acceptable accounting and auditing standards.
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0023| D. A charitable organization that fails to
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0024| register before a solicitation is made or fails to timely file
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0025| its tax filings with the attorney general pursuant to
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0001| Subsection C of this section may be assessed a late filing fee
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0002| of one hundred dollars ($100)."
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0003| Section 7. Section 57-22-7 NMSA 1978 (being Laws 1983,
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0004| Chapter 140, Section 7) is amended to read:
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0005| "57-22-7. RESTRICTION ON USE OF FACT OF FILING IN
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0006| SOLICITATION.--No solicitation [of funds] for charitable
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0007| purposes shall use the fact or requirement of registration or
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0008| of the filing of any report with the attorney general pursuant
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0009| to the Charitable [Organizations and] Solicitations Act with
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0010| the intent to cause or in a manner tending to cause any person
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0011| to believe that [such] the solicitation, the manner in
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0012| which it is conducted, its purposes, any use to which the
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0013| proceeds will be applied or the person or organization
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0014| conducting it [have] has been or will be in any way
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0015| endorsed, sanctioned or approved by the attorney general or
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0016| any governmental agency or office."
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0017| Section 8. Section 57-22-8 NMSA 1978 (being Laws 1983,
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0018| Chapter 140, Section 8) is amended to read:
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0019| "57-22-8. DISCLOSURE OF [FUND RAISING] FUNDRAISING
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0020| COSTS.--
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0021| A. All charitable organizations subject to the
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0022| Charitable [Organizations and] Solicitations Act shall
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0023| disclose upon request the percentage of the funds solicited
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0024| [which] that are spent on the costs of [fund raising]
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0025| fundraising. For purposes of this section, costs of [fund
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raising] fundraising shall include all money directly
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0002| expended on [fund raising] fundraising and that portion of
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0003| all administrative expenses and salaries of the charitable
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0004| organization attributable to [fund raising] fundraising
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0005| activities.
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0006| B. Whenever a solicitation [of funds] on behalf
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0007| of a charitable organization subject to the Charitable
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0008| [Organizations and] Solicitations Act is undertaken by a
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0009| professional fundraiser, the professional fundraiser [must]
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0010| shall disclose that fact to prospective contributors. [For
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purposes of this section, a professional fundraiser shall mean
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any individual, corporation, association or other enitity
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employed or retained or otherwise compensated by or on behalf
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of a charitable organization to solicit funds.]"
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0015| Section 9. Section 57-22-9 NMSA 1978 (being Laws 1983,
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0016| Chapter 140, Section 9) is amended to read:
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0017| "57-22-9. AUTHORITY OF THE ATTORNEY GENERAL.--
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0018| A. The attorney general [is authorized] may,
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0019| on behalf of the state, [to] examine and investigate any
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0020| charitable organization subject to the Charitable
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0021| [Organizations and] Solicitations Act to ascertain the
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0022| conditions of its affairs and to what extent, if at all, it
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0023| fails to comply with the trusts [which] that it has
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0024| assumed or if it has departed from the purposes for which it
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0025| [is] was formed. In the case of such failure or
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0001| departure, the attorney general may institute, in the name of
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0002| the state, the proceedings necessary to correct the
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0003| noncompliance or departure by any remedy available under the
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0004| common law.
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0005| B. The attorney general [is authorized] may,
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0006| in the name of the state, [to initiate appropriate
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proceedings to enjoin the solicitation of funds by any
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charitable organization which] seek injunctive relief, civil
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0009| penalties, financial accounting or restitution from any person
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0010| who has failed to comply with the registration, filing or
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0011| disclosure provisions of the Charitable [Organizations and]
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0012| Solicitations Act or [which] who has [filed any false or
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misleading report or has made any false or misleading
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disclosure] otherwise violated the provisions of that act.
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0015| C. The attorney general [is authorized] may,
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0016| in the name of the state, [to] initiate appropriate
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0017| proceedings to seek compliance with the provisions of the
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0018| Charitable [Organizations and] Solicitations Act and with
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0019| any rules [and regulations duly] promulgated by the attorney
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0020| general [thereunder] pursuant to that act. The attorney
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0021| general may promulgate rules for the proper administration of
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0022| that act.
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0023| D. Nothing in this section shall be construed to
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0024| preclude [any] a person or group [or] of persons from
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0025| asserting [any] a private cause of action [they] it
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0001| might have against a charitable organization or professional
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0002| fundraiser."
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0003| Section 10. Section 57-22-10 NMSA 1978 (being Laws 1983,
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0004| Chapter 140, Section 10) is amended to read:
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0005| "57-22-10. STANDARD OF CARE.--All officers, directors,
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0006| managers, trustees, professional fundraisers or other
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0007| persons having access to the [funds] money of a charitable
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0008| organization intended for use for charitable purposes shall be
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0009| held to the standard of care defined for fiduciary trustees
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0010| under common law."
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0011| Section 11. Section 57-22-11 NMSA 1978 (being Laws 1983,
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0012| Chapter 140, Section 11) is amended to read:
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0013| "57-22-11. EXEMPTIONS FROM STATE AND LOCAL TAXATION.--
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0014| Every officer, agency, board or commission of this state, or
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0015| political subdivision [thereof] of this state receiving
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0016| applications for exemption from taxation shall provide to the
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0017| attorney general copies of all [such] the applications,
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0018| supporting documents and official responses."
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0019| Section 12. A new section of the Charitable
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0020| Solicitations Act is enacted to read:
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0021| "[NEW MATERIAL] PROFESSIONAL FUNDRAISERS--
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0022| REGISTRATION.--
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0023| A. Professional fundraisers shall, before entering
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0024| into a contract with any charitable organization, except a
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0025| religious organization, to solicit for or on its behalf:
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0001| (1) register with the attorney general on a
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0002| form provided by the attorney general;
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0003| (2) file with the attorney general a surety
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0004| bond pursuant to the Charitable Solicitations Act; and
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0005| (3) file with the attorney general a copy of
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0006| the intended written contract between the professional
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0007| fundraiser and the charitable organization on whose behalf the
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0008| professional fundraiser intends to conduct a solicitation
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0009| campaign.
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0010| B. The contract between the professional
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0011| fundraiser and the charitable organization shall clearly
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0012| describe the:
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0013| (1) compensation and authority of the
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0014| professional fundraiser;
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0015| (2) solicitation campaign;
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0016| (3) location and telephone numbers from where
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0017| solicitations are intended to be conducted;
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0018| (4) list of names and addresses of all
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0019| employees, agents or other persons who are to solicit during
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0020| the campaign;
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0021| (5) copies of the solicitation literature,
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0022| including scripts of any written or verbal solicitation; and
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0023| (6) estimated annual amount of gross and net
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0024| revenue the charitable organization is projected to receive as
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0025| a result of the activities outlined in the contract.
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0001| C. The charitable organization on whose behalf the
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0002| professional fundraiser is acting shall certify that the
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0003| contract and solicitation materials filed with the attorney
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0004| general are true and complete.
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0005| D. Within ten business days after receiving a
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0006| registration pursuant to this section, the attorney general
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0007| shall notify the professional fundraiser of any deficiencies
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0008| in the registration, contract or bond; otherwise the filing is
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0009| deemed approved as filed.
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0010| E. A professional fundraiser who fails to register
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0011| with the attorney general may be assessed a late registration
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0012| fee of one hundred dollars ($100)."
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0013| Section 13. A new section of the Charitable
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0014| Solicitations Act is enacted to read:
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0015| "[NEW MATERIAL] PROFESSIONAL FUNDRAISERS--BOND.--A
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0016| professional fundraiser shall file a surety bond at the time
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0017| of the registration with the attorney general in an amount and
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0018| on a form provided by the attorney general. The professional
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0019| fundraiser shall maintain the surety bond, or alternative
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0020| financial assurances approved by the attorney general, as long
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0021| as the fundraiser solicits in the state."
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0022| Section 14. A new section of the Charitable
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0023| Solicitations Act is enacted to read:
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0024| "[NEW MATERIAL] GENERAL PROVISIONS--CHARITABLE
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0025| ORGANIZATIONS--PROFESSIONAL FUNDRAISERS--DECEPTIVE
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0001| PRACTICES.--A charitable organization or a professional
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0002| fundraiser shall not engage in deceptive fundraising
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0003| practices, meaning any false or misleading verbal or written
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0004| statement, description or representation of any kind knowingly
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0005| made in connection with a solicitation and that may, tends to
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0006| or does deceive or mislead any person and includes:
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0007| A. using the name or likeness of any person in
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0008| solicitation literature without the express written consent of
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0009| the person; provided that publication of previous
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0010| contributors' names to acknowledge their contributions shall
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0011| not require their express written consent;
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0012| B. using a name, symbol or statement that is so
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0013| closely related or similar to that used by another charitable
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0014| organization or governmental agency that the use would tend to
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0015| confuse or mislead the public; and
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0016| C. misrepresenting, confusing or misleading any
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0017| person to reasonably believe incorrectly that the
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0018| contributions being solicited are or will be used for
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0019| purposes, persons or programs in the state."
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0020| Section 15. A new section of the Charitable
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0021| Solicitations Act is enacted to read:
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0022| "[NEW MATERIAL] PROFESSIONAL FUNDRAISER--RECORDS AND
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0023| REPORTS.--
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0024| A. At least every six months, the professional
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0025| fundraiser shall account in writing to the charitable
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0001| organization for all contributions received and all expenses
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0002| incurred under his contract. The charitable organization
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0003| shall maintain a copy of the accounting of contributions and
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0004| expenses for three years and make it available to the attorney
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0005| general upon request.
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0006| B. All contributions of money received by the
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0007| professional fundraiser shall be deposited in an account at a
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0008| federally insured financial institution within two days after
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0009| receipt. The account shall be established and maintained in
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0010| the name of the charitable organization. Disbursements from
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0011| the account shall be made upon warrants signed by the
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0012| professional fundraiser and an authorized representative of
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0013| the charitable organization.
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0014| C. The professional fundraiser shall include the
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0015| following information in its accounting required by Subsection
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0016| A of this section to the charitable organization:
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0017| (1) the name and address of each person
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0018| contributing to the charitable organization and the date and
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0019| amount of the contribution;
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0020| (2) the name and residence address of each
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0021| employee, agent or other person involved in the solicitation;
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0022| (3) the script or other instructional
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0023| information provided by the charitable organization or
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0024| professional fundraiser to employees, agents or other persons
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0025| conducting solicitations;
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0001| (4) a record of expenses incurred by the
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0002| professional fundraiser that the charitable organization paid;
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0003| and
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0004| (5) the name and address of each financial
|
0005| institution and the account number of each account in which
|
0006| the professional fundraiser deposited contributions received
|
0007| from the solicitation.
|
0008| D. The professional fundraiser and the employees
|
0009| of the professional fundraiser shall disclose the following in
|
0010| solicitations:
|
0011| (1) the name of the charitable organization;
|
0012| and
|
0013| (2) the fact that the solicitation is made by
|
0014| or through a professional fundraiser.
|
0015| E. Every professional fundraiser and charitable
|
0016| organization shall have either a registered agent in the state
|
0017| or shall file a consent to service of process with the
|
0018| attorney general. The consent to service shall be in the form
|
0019| prescribed by the attorney general and shall be irrevocable."
|
0020| Section 16. A new section of the Charitable
|
0021| Solicitations Act is enacted to read:
|
0022| "[NEW MATERIAL] INVESTIGATIVE DEMAND--CIVIL PENALTY.--
|
0023| A. Whenever the attorney general has reason to
|
0024| believe that any person may be in possession, custody or
|
0025| control of information or documentary material, including an
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0001| original or copy of any book, record, report, memorandum,
|
0002| paper, communication, tabulation, chart, photograph,
|
0003| mechanical transcription or other tangible document or
|
0004| recording, that the attorney general believes to be relevant
|
0005| to the subject matter of an investigation of a probable
|
0006| violation of the Charitable Solicitations Act, the attorney
|
0007| general may, prior to the institution of a civil proceeding,
|
0008| execute in writing and cause to be served upon the person a
|
0009| civil investigative demand. The demand shall require the
|
0010| person to answer interrogatories or to produce documentary
|
0011| material and permit the inspection and copying of the
|
0012| material. The demand of the attorney general shall not be a
|
0013| matter of public record and shall not be published by him
|
0014| except by order of the court.
|
0015| B. Each demand shall:
|
0016| (1) state the general subject matter of the
|
0017| investigation;
|
0018| (2) describe with reasonable certainty the
|
0019| information or documentary material to be provided;
|
0020| (3) identify the time period within which the
|
0021| information or documentary material is to be provided, which
|
0022| in no case shall be less than ten days after the date of
|
0023| service of the demand; and
|
0024| (4) state the date on which any documentary
|
0025| material shall be available for inspection and copying.
|
- 21 -
0001| C. No demand shall:
|
0002| (1) contain any requirement that would be
|
0003| unreasonable or improper if contained in a subpoena duces
|
0004| tecum issued by a court of the state;
|
0005| (2) require the disclosure of any documentary
|
0006| material that would be privileged or that for any other reason
|
0007| would not be required by a subpoena duces tecum by a court of
|
0008| the state; or
|
0009| (3) require the removal of any documentary
|
0010| material from the custody of the person upon which the demand
|
0011| is served except in accordance with the provisions of
|
0012| Subsection E of this section.
|
0013| D. Service of the demand may be made by:
|
0014| (1) delivering a duly executed copy of the
|
0015| demand to the person to be served or, if the person is not a
|
0016| natural person, to the registered or statutory agent for the
|
0017| person to be served;
|
0018| (2) delivering a duly executed copy of the
|
0019| demand to the principal place of business in New Mexico of the
|
0020| person to be served; or
|
0021| (3) mailing by registered mail or certified
|
0022| mail a duly executed copy of the demand addressed to the
|
0023| person to be served at his principal place of business in the
|
0024| state or, if the person has no place of business in the state,
|
0025| to his principal place of business.
|
- 22 -
0001| E. Documentary material demanded pursuant to
|
0002| Subsection A of this section shall be produced for inspection
|
0003| and copying during normal business hours at the principal
|
0004| place of business of the person served or may be inspected and
|
0005| copied at such other times and places as may be agreed upon by
|
0006| the person served and the attorney general.
|
0007| F. No documentary material or copies of the
|
0008| documentary material produced pursuant to a demand shall be
|
0009| produced for inspection or copying by anyone other than an
|
0010| authorized employee of the attorney general, nor shall the
|
0011| contents of the documentary material be disclosed to anyone
|
0012| other than an authorized employee of the attorney general or
|
0013| in court in an action relating to a violation of the
|
0014| Charitable Solicitations Act. The district court in the
|
0015| county in which the person resides or has his principal place
|
0016| of business or is about to perform or is performing the
|
0017| practice that is alleged to be unlawful under the Charitable
|
0018| Solicitations Act may order documentary material to be
|
0019| produced for inspection or copying by someone other than an
|
0020| authorized employee of the attorney general.
|
0021| G. At any time before the return date of the
|
0022| demand, a petition to set aside the demand, modify the demand
|
0023| or extend the return date on the demand may be filed in the
|
0024| district court in the county in which the person resides or
|
0025| has his principal place of business or is about to perform or
|
- 23 -
0001| is performing the practice that is alleged to be unlawful
|
0002| under the Charitable Solicitations Act, and the court upon
|
0003| showing of good cause may set aside the demand, modify it or
|
0004| extend the return date on the demand.
|
0005| H. If after service of the demand the person
|
0006| neglects or refuses to comply with the demand, the attorney
|
0007| general may invoke the aid of the court in the enforcement of
|
0008| the demand. In appropriate cases the court shall issue its
|
0009| order requiring the person to appear and produce the
|
0010| documentary material required in the demand. Upon failure of
|
0011| the person to comply with the court order, the court shall
|
0012| punish the person for contempt of court.
|
0013| I. This section shall not be applicable to
|
0014| criminal prosecutions.
|
0015| J. In an action brought pursuant to the Charitable
|
0016| Solicitations Act, if the court finds that a person has
|
0017| violated a provision of that act or rules promulgated pursuant
|
0018| to that act, the attorney general may recover, on behalf of
|
0019| the state, a maximum civil penalty of five thousand dollars
|
0020| ($5,000) per violation."
|
0021| Section 17. EFFECTIVE DATE.--The effective date of the
|
0022| provisions of this act is July 1, 1998.
|
0023|
|