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State v. Tatalovich

Supreme Court of Nevada

September 19, 2013

The STATE of Nevada, Private Investigator's Licensing Board, Appellant,
v.
Dwayne TATALOVICH and Tatalovich & Associates, Inc., Respondents.

Catherine Cortez Masto, Attorney General, and Jeffrey D. Menicucci, Deputy Attorney General, Carson City, for Appellant.

Arrascada & Arrascada, Ltd., and John L. Arrascada, Reno, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

PICKERING, C.J.

On this appeal, we consider whether investigative work undertaken for the purpose of developing and giving expert opinion testimony in a Nevada civil court case requires a Nevada private investigator's license. We agree with the district court that it does not and therefore affirm.

I.

Respondent Dwayne Tatalovich was hired as an expert witness in two Nevada civil court cases. The plaintiffs in each case sought damages for injuries due to criminal acts that allegedly would not have occurred but for the property owner's negligent failure to provide adequate premises security. To prepare for the first case, Tatalovich inspected the crime scene and took measurements and photographs. For the second case, he again examined the crime scene, then reviewed all security measures and devices and reconstructed the crime. Tatalovich holds an Arizona private investigator's license. From

Page 44

his office in Arizona, he ran background checks on federal and state Internet databases. Tatalovich used his research to formulate his expert opinions for each case.

Based on this work by Tatalovich, appellant State of Nevada, Private Investigator's Licensing Board (Board) cited him for engaging in the business of a private investigator without a Nevada license in violation of NRS 648.060. The district court dismissed the citation. It held that Tatalovich's investigative activities were incidental to his formation of expert testimony and, as such, fell outside NRS Chapter 648's licensing scheme.[1]

II.

This court defers to an agency's findings of fact, as well as to its conclusions of law, where those conclusions are closely related to the agency's view of the facts. State Indus. Ins. Sys. v. Bokelman, 113 Nev. 1116, 1119, 946 P.2d 179, 181 (1997). However, if the petitioner's substantial rights have been prejudiced by the agency's decision and that decision rests on an error of law, exceeds its powers, or is clearly erroneous, arbitrary, capricious, or an abuse of discretion, this court may set it aside. NRS 233B.135(3); Cable v. State ex rel. Emp'rs Ins. Co. of Nev., 122 Nev. 120, 126, 127 P.3d 528, 532 (2006); Dredge v. State ex rel. Dep't of Prisons, 105 Nev. 39, 43, 769 P.2d 56, 58-59 (1989). In construing a statute, this court considers the statutory scheme as a whole and avoids an interpretation that leads to absurd results. City Plan Dev., Inc. v. Office of Labor Comm'r, 121 Nev. 419, 434-35, 117 P.3d 182, 192 (2005).

Our analysis begins with the text of the licensing statutes. NRS 648.060 provides that " no person may: (a) Engage in the business of private investigator, private patrol officer, process server, repossessor, dog handler, security consultant, or polygraphic examiner or intern or (b) Advertise his or her business as such, ... unless the person is licensed pursuant to this chapter." NRS 648.060(1) (emphasis added). " Private investigator" is defined by NRS 648.012, which reads as follows:

[A]ny person who for any consideration engages in business or accepts employment to furnish, or agrees to make or makes any investigation for the purpose of ...

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