HOUSE BILL 1013
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Thomas E. Swisstack
AN ACT
RELATING TO LICENSING; CREATING THE TALENT AGENCIES BOARD; PROVIDING LICENSING REQUIREMENTS FOR TALENT AGENTS; PRESCRIBING DUTIES OF THE TALENT AGENCIES BOARD; PROVIDING PENALTIES; PROVIDING FOR A DELAYED REPEAL.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Talent Agencies Act".
Section 2. DEFINITIONS.--As used in the Talent Agencies Act:
A. "board" means the talent agencies board;
B. "department" means the regulation and licensing department;
C. "entertainment industry" means the film, television, modeling and music industry;
D. "fee" means any money or other valuable consideration paid, charged or promised to be paid for services rendered by any person conducting the business of a talent agent under the Talent Agencies Act;
E. "license" means a license issued by the department to carry on the business of a talent agent under the Talent Agencies Act;
F. "licensee" means a talent agent who holds a valid license under the Talent Agencies Act;
G. "performer" means a person employed in the entertainment industry;
H. "person" means any individual, company, firm, association, corporation, limited liability company, agent, broker, manager or the person's agents or employees;
I. "registration fee" means any charge made to a performer for any purpose related to employment in the entertainment industry, including promotion, marketing, listing a performer for employment, photographs, videotapes and courses in the entertainment industry, or any activity to promote, train or further the employment opportunities of a performer by a talent agent; and
J. "talent agent" means a person who engages in the occupation of procuring, training, promoting or attempting to procure employment for a performer in the entertainment industry in New Mexico.
Section 3. TALENT AGENCIES ACT--APPLICATION--PERSONS EXEMPTED.--
A. The Talent Agencies Act shall apply to a person acting as a talent agent in the entertainment industry.
B. The Talent Agencies Act shall not apply to or affect:
(1) an accredited university or college offering courses for employment in the entertainment industry; and
(2) a person deemed exempt by the board.
Section 4. TALENT AGENCIES BOARD CREATED--MEMBERS--TERMS--REMOVAL--COMPENSATION.--
A. The "talent agencies board" is created. The board is administratively attached to the department. The board consists of nine members. Terms shall be staggered terms of three years, and appointments shall be made in a manner that the terms of the board members expire on June 30. Board members include:
(1) one member of the New Mexico arts commission;
(2) one member appointed by the New Mexico arts commission;
(3) one member of the governor's council on film and media industries;
(4) one member appointed by the governor's council on film and media industries;
(5) the superintendent of regulation and licensing or the superintendent's designee;
(6) one member of the New Mexico film division of the economic development department;
(7) one member appointed by the governor licensed as a talent agent from the film or television industry;
(8) one member appointed by the governor licensed as a talent agent from the music industry; and
(9) one member appointed by the governor representing a film union or the screen actors guild.
B. A vacancy shall be filled by appointment by the governor for the remainder of the unexpired term and shall be filled by a person having similar qualifications to those of the member being replaced. Board members shall serve until their successors have been qualified and appointed.
C. The board shall meet within sixty days of the beginning of a fiscal year and elect from its membership a chair and vice chair. The board shall meet at other times as it deems necessary or advisable or as deemed necessary or advisable by the chair or majority of its members or the governor, but in no event less than twice a year. Reasonable notice of all meetings shall be given in the manner prescribed by the board. A majority of the board members constitutes a quorum at any meeting or hearing.
D. The governor may remove a member from the board for neglect of a duty required by law, for incompetence, for improper or unprofessional conduct as defined by board rule or for any reason that would justify the suspension or revocation of the member's license to operate as a talent agent.
E. A board member shall not serve more than two consecutive full terms, and a member failing to attend three consecutive meetings shall automatically be removed as a board member after proper notice, unless excused for reasons set forth in board rules.
F. Members of the board shall be reimbursed as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.
Section 5. TALENT AGENCIES BOARD--POWERS--DUTIES.--The board:
A. shall adopt rules to carry out the purposes and policies of the Talent Agencies Act, including regulations relating to professional conduct, standards of performance, professional licensure, reasonable license, application, renewal and late fees and ethical standards of practice for a person holding a license to practice as a talent agent in New Mexico;
B. shall administer and coordinate the provisions of the Talent Agencies Act and rules adopted by the board. The board may investigate allegations of violations of the provisions of the Talent Agencies Act and report violations to the department;
C. shall keep records and minutes necessary to carry out its functions; and
D. may adopt a common seal for use by a talent agent.
Section 6. ADMINISTRATION--RULES.--The department shall:
A. enforce and administer rules necessary to carry out the provisions of the Talent Agencies Act;
B. conduct hearings upon charges relating to discipline of a licensee or the denial, suspension or revocation of a license; and
C. maintain an official roster showing the name, address and license number of each talent agent licensed pursuant to the Talent Agencies Act.
Section 7. REQUIREMENTS FOR LICENSURE.--The department shall issue a license for a talent agent to a person who files a completed application accompanied by the required fees and who submits satisfactory evidence that the applicant:
A. is at least eighteen years of age;
B. has shown to the satisfaction of the department familiarity with state labor laws;
C. has not been convicted of a felony offense in the last five years involving fraud or dishonesty;
D. demonstrates the payment of all applicable taxes owed to the state and local government or proves that the applicant is not subject to a tax; and
E. is otherwise qualified with experience and training or meets other requirements deemed necessary by the board.
Section 8. LICENSE--FEES--RENEWAL.--
A. Each applicant for licensure shall pay a fee set by the department not to exceed one thousand dollars ($1,000).
B. On or before June 30 of each odd-numbered year, every applicant or person licensed under the Talent Agencies Act shall submit registration or renewal registration on a form prescribed and furnished by the department. Information required on the application and renewal form shall include the licensee's current address, state tax identification number and proof of compliance with requirements for licensure promulgated by the department.
C. Failure to renew a license by June 30 of each renewal year shall cause the license to be suspended until a late fee not to exceed one hundred dollars ($100), together with the unpaid renewal fee, is received by the department.
D. Any license that is not renewed within one year from the date of the expired license shall be automatically revoked.
Section 9. BOND REQUIRED.--
A. A license shall not be issued under the Talent Agencies Act unless the applicant files with the department a surety bond in an amount determined by the board executed by a surety company authorized to do business in this state. The form of bond, its execution and the sufficiency of the surety shall be verified by the department.
B. A licensee shall maintain the surety bond, and upon failure to do so, the license of the licensee shall be suspended and shall not be reinstated until an application in the form prescribed by the department is filed together with a proper surety bond. The department may deny the application notwithstanding the applicant's compliance with this section: (1) for any reason that would justify a refusal to issue or a suspension or a revocation of a license; or
(2) for the performance by the applicant of any practice while under suspension for failure to keep the applicant's bond in force for which a license under the Talent Agencies Act is required.
C. Bonds executed and filed with the department pursuant to the Talent Agencies Act shall remain in force until the surety company has terminated future liability by thirty- day notice to the department.
Section 10. DENIAL, SUSPENSION OR REVOCATION OF LICENSE OR REGISTRATION.--In accordance with procedures contained in the Uniform Licensing Act, the department may deny, suspend or revoke any license held or applied for under the Talent Agencies Act upon grounds that the licensee, registrant or applicant:
A. made a false statement or gave false information in connection with an application for a license or renewal or reinstatement of a license;
B. violated any provision of the Talent Agencies Act;
C. committed or permitted any employee to commit any act while the license was expired that would be cause for the suspension or revocation of a license or grounds for the denial of an application for a license;
D. willfully failed or refused to render to a client services or a report as agreed between the parties for which compensation has been paid or tendered in accordance with the agreement of the parties;
E. knowingly violated, or advised, encouraged or assisted the violation of, any court order or injunction in the course of business of the licensee;
F. knowingly issued a worthless or otherwise fraudulent payroll check that is not redeemed within two days of denial of payment by any bank; or
G. violated a rule promulgated by the board that the board has determined may warrant denial, suspension or revocation.
Section 11. VIOLATIONS--REMEDIES.--
A. The attorney general, a district attorney or a city attorney may institute an action for a violation of the Talent Agencies Act, including, but not limited to, an action to restrain and enjoin a violation.
B. A person who willfully violates any provision of the Talent Agencies Act is guilty of a misdemeanor. Each violation is punishable by imprisonment in the county jail for not more than one year or by a fine not exceeding ten thousand dollars ($10,000) or by both. Payment of restitution to a performer shall take precedence over the payment of a fine.
C. A person who is injured by any violation of the Talent Agencies Act or by breach of contract subject to that act may bring an action for recovery of damages or an action to restrain and enjoin a violation, or both, and:
(1) the amount awarded for damages for a violation of the Talent Agencies Act may be up to three times the damages actually incurred, but not less than the amount paid by the performer to the talent agent or person without a valid license acting as a talent agent;
(2) when a talent agent cannot or refuses to pay damages awarded by a final judgment, the judgment may be satisfied from the bond maintained by the department;
(3) if the performer prevails as plaintiff, the plaintiff shall be awarded reasonable attorney fees and costs;
(4) if the court determines, by clear and convincing evidence, that the breach of contract or violation of the Talent Agencies Act was willful, the court, in its discretion, may award punitive damages in addition to other amounts; and
(5) the remedies provided in the Talent Agencies Act are not exclusive and shall be in addition to any other remedies or procedures provided in any other law.
Section 12. PROHIBITED ACTS.--
A. It is unlawful for a person to act as a talent agent unless the person is licensed pursuant to the Talent Agencies Act.
B. A person shall not make any representation or advertise as being a talent agent or as being employed by a talent agent unless the person or the person's employer is licensed pursuant to the Talent Agencies Act.
C. Any waiver by the performer of the provisions of the Talent Agencies Act is deemed contrary to public policy, void and unenforceable. Any attempt by a talent agent to waive the performer's rights pursuant to the Talent Agencies Act is a violation of that act.
D. A license issued pursuant to the Talent Agencies Act is not transferable or reassignable.
Section 13. TERMINATION OF BOARD LIFE--DELAYED REPEAL.--The talent agencies board is terminated on July 1, 2011 pursuant to the provisions of the Sunset Act. The board shall continue to operate according to the provisions of the Talent Agencies Act until July 1, 2012. Effective July 1, 2012, the Talent Agencies Act is repealed.
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