Senator Roberson 9_11_2015.pdf
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Transcript of Senator Roberson 9_11_2015.pdf
STATE OF NEVADA
LEGISLATIVE COUNSEL BUREAU
LEGISLATIVE BUILDING
401 S. CARSON STREET
CARSON CITY, NEVADA 89701-4747
Fax No.: (775) 684-6600
RICK COMBS, Director
(775) 684-6800
LEGISLATIVE COMMISSION (775) 684-6800
MICHAEL ROBERSON, Senator, Chairman
Rick Combs, Director, Secretary
INTERIM FINANCE COMMITTEE (775) 684-6821
PAUL ANDERSON, Assemblyman. Chairman
Cindy Jones, Fiscal Analyst
Mark Krmpotic, Fiscal Analyst
BRENDA J. ERDOES, Legislative Counsel (775) 684-6830
PAUL V. TOWNSEND, Legislative Auditor (775) 684-6815
SUSAN E. SCHOLLEY, Research Director (775) 684-6825
September 11,2015
Senator Michael Roberson
P.O. Box 530940
Henderson, NV 89053-0940
Dear Senator Roberson:
Previously, you asked this office whether a local government may impose upon a
transportation network company, or any driver providing transportation services in
affiliation with a transportation network company, a tax, fee or any other requirement,
such as a background investigation or drug-testing requirement, that is not of general
applicability to any other business that operates within the jurisdiction of the local
government. In a letter dated August 24, 2015, this office stated its opinion that a local
government may not impose such a tax, fee or any other requirement unless it is generally
applicable to any other business that operates within the jurisdiction of the local
government.
Subsequent to the issuance of that letter on August 24, 2015, you have asked this
office to address two related questions. First, you have asked whether a local government
may impose a business license fee on a category that only includes a transportation
network company or a driver affiliated with such a company or which includes such a
company or driver within another specific category of business, but not to all businesses
generally. If such a special category is not allowed, you have asked whether a local
government may prevent a transportation network company or a driver affiliated with
such a company from engaging in business without a business license if the local
government does not have a business license fee that is applicable to all businesses within
its jurisdiction. As an addendum to this office's letter dated August 24, 2015, we will
address these additional questions; since a substantial portion the rationale for our
opinion was stated in the previous letter, we will only briefly refer back to our previous
discussion rather than restating the rationale in full.
Generally, local governments may "fix, impose and collect for revenues or for
regulation, or both, a license tax on all character of lawful trades, callings, industries,
(NSPO Rev. 7-15) (O) 1578E
Senator Roberson
September 11,2015
Page 2
occupations, professions and businesses conducted within" their jurisdiction. NRS
244.335, 268.095. However, as discussed in our previous letter, during the 78th Session of
the Nevada Legislature, the Legislature created a system for the comprehensive
regulation of transportation network companies by the State through the Nevada
Transportation Authority. Section 44 of Assembly Bill No. 176 (2015) specifically
delineated the authority of local governments with respect to transportation network
companies, providing:
1. Except as otherwise provided in subsection 2, a local
governmental entity shall not:
(a) Impose any tax or fee on a transportation network company
operating within the scope of a valid permit issued by the Authority
pursuant to this chapter, a driver who has entered into an agreement
with such a company or a vehicle operated by such a driver or for
transportation services provided by such a driver.
(b) Require a transportation network company operating within
the scope of a valid permit issued by the Authority pursuant to this
chapter to obtain from the local government any certificate, license or
permit to operate within that scope or require a driver who has entered
into an agreement with such a company to obtain from the local
government any certificate, license or permit to provide transportation
services.
(c) Impose any other requirement upon a transportation network
company or a driver which is not of general applicability to all persons
who operate a motor vehicle within the jurisdiction of the local
government.
2. Nothing in this section:
(a) Prohibits a local governmental entity from requiring a
transportation network company or driver to obtain from the local
government a business license or to pay any business license fee in the
same manner that is generally applicable to any other business that
operates within the jurisdiction of the local government.
(b) Prohibits an airport or its governing body from requiring a
transportation network company or a driver to:
(1) Obtain a permit or certification to operate at the airport;
(2) Pay a fee to operate at the airport; or
(3) Comply with any other requirement to operate at the
airport.
(c) Exempts a vehicle operated by a driver from any tax imposed
pursuant to NRS 354.705, 371.043 or 371.045.
3. The provisions of this chapter do not exempt any person from
the requirement to obtain a state business license issued pursuant to
chapter 76 ofNRS. A transportation network company shall notify
each driver of the requirement to obtain a state business license issued
Senator Roberson
September 11,2015
Page 3
pursuant to chapter 76 ofNRS and the penalties for failing to obtain a
state business license.
Section 44, chapter 279, Statutes ofNevada 2015, at p. 1409 (emphasis added). In
pertinent part and with certain enumerated exceptions, this section prohibits a local
government from imposing a tax or fee upon a transportation network company or a
driver affiliated with the company or requiring such a company or driver to obtain a
certificate, license or permit from the local government to engage in activities within the
scope of the permit received from the Nevada Transportation Authority. Subsection 2 of
section 44 of A.B. 176 provides the pertinent exception to that rule by expressly allowing
a local government to require a transportation network company or driver to obtain a
business license from, and pay a business license fee to, the local government in the same
manner as any other business within the jurisdiction of the local government.
The controlling factor in statutory interpretation is the intent of the Legislature.
County of Clark ex rel. Univ. Med. Ctr. v. Upchurch. 114Nev. 749, 753 (1998);
Cleghorn v. Hess. 109 Nev. 544, 548 (1993). "To determine legislative intent, [a] court
first looks at the plain language of a statute." Allstate Ins. Co. v. Fackett. 125 Nev. 132,
138 (2009); Salas v. Allstate Rent-A-Car. Inc.. 116 Nev. 1165, 1168 (2000). A court will
apply the plain meaning of the statutory language as written, unless such a meaning
violates the spirit of the act or leads to an absurd or unreasonable result. Redl v. Heller,
120 Nev. 75, 78 (2004); Anthony Lee R. v. State. 113 Nev. 1406, 1414 (1997); McKay v.
Bd.ofSuperv'rs. 102 Nev. 644, 648 (1986). "It is an accepted rule of statutory
construction that a provision which specifically applies to a given situation will take
precedence over one that applies only generally." Nev. Power Co. v. Haggerty. 115 Nev.
353, 364 (1999); Sierra Life Ins. Co. v. Rottman. 95 Nev. 654, 656 (1979).
While a local government generally has broad discretion to impose business
license fees upon businesses within its jurisdiction, the Legislature chose to specifically
curtail this discretion with respect to transportation network companies with the
enactment of A.B. 176. The plain language of section 44 of A.B. 176 limits the power of
a local government with respect to a transportation network company and any driver
affiliated with such a company. A.B. 176 only authorizes a local government to require a
business license and collect a business license fee from a transportation network company
or driver to the extent that it imposes the same general fee and requirements that apply to
all other businesses within the local government's jurisdiction. Subsection 1 of section 44
of A.B. 176 prohibits a local government from imposing an industry-specific business
license fee, and subsection 2 allows only the imposition of the same general business
license fee imposed upon all other businesses within the jurisdiction of the local
government. It is the opinion of this office that a local government may not impose
anything more.
The plain language of section 44 of A.B. 176 does not require a local government
to impose a general business license fee. In addition, A.B. 176 does nott prohibit the
Senator Roberson
September 11,2015
Page 4
imposition of industry-specific business license fees to other types of businesses.
However, with respect to a transportation network company or its affiliated drivers, it is
the opinion of this office that such a business license or fee may only be required to the
extent required of all businesses within the jurisdiction of the local government. It is the
understanding of this office that some local governments in this State either do not
impose a general business license fee or impose only a nominal application fee for a
business license, but also impose an industry-specific business license fee. However, it is
the opinion of this office that applying the plain language of section 44 of A.B. 176, such
a local government may not impose such an industry-specific business license fee upon a
transportation network company or its affiliated drivers. Rather, only a fee that is
"generally applicable to any other business that operates within the jurisdiction of the
local government" may be required of such a company or driver.
Next we consider whether a local government may prevent a transportation
network company or a driver affiliated with such a company from engaging in business
without a business license if the local government does not have a business license fee
that is applicable to all businesses within its jurisdiction. As discussed above, section 44
of A.B. 176 limits the power of local governments to regulate and tax transportation
network companies and their affiliated drivers. While a local government generally
enjoys broad discretion to regulate and tax businesses within its jurisdiction, section 44 of
A.B. 176 specifically curtailed the authority of local governments with respect to
transportation network companies, allowing only the imposition of a requirement for a
business license and the payment of a business license fee that applies to all other
businesses in the jurisdiction. Section 44, chapter 279, Statutes ofNevada 2015, at p.
1409. Section 44 expressly prohibits a local government from imposing any special
requirement on transportation network companies for the issuance of a business license or
imposing an industry-specific business license fee.
In addition, as discussed in our letter dated August 24, 2015, it is the opinion of
our office that local regulation of transportation network companies and their affiliated
drivers is preempted by state law. With A.B. 176, the Legislature has "carefully
plan[ned]" to achieve the objective of regulating the provision of transportation services
by transportation network companies and their affiliated drivers "within a statutory
scheme structured to occupy the entire field on the subject." Douglas County Contractors
Ass'n v. Douglas County. 112 Nev. 1452, 1465 (1996). The intent of the Legislature to
occupy the entire field is evident from the statutory scheme created by A.B. 176 which
provides for the comprehensive regulation of transportation network companies without
requiring the involvement of local governments. In addition, it expressly prohibits the
involvement and curtails general powers of local governments that would otherwise
apply to transportation network companies. Further, a local regulation which allows an
activity that state law prohibits directly conflicts with state law and will be preempted by
state law. See Crowlev v. Duffrin. 109 Nev. 597, 604-05 (1993); Lamb v. Mirin. 90 Nev.
329, 333 (1974). Since section 44 of A.B. 176 prohibits a local government from
imposing a tax, fee or other requirement upon a transportation network company or its
Senator Roberson
September 11,2015
Page 5
affiliated drivers which is not generally applicable to any other business within its
jurisdiction. Any local regulation or ordinance which purports to impose such a tax, fee
or requirement directly conflicts with state law and is therefore preempted. Therefore, it
is the opinion of this office that a local government that does not have a generally
applicable business license may not prevent a transportation network company or a driver
affiliated with such a company from engaging in business within the jurisdiction.
CONCLUSION
Assembly Bill No. 176 provides for the regulation of transportation network
companies by the State and expressly prohibits local governments from exercising
powers relating to the imposition of taxes, fees or requirements on transportation network
companies that are not of general applicability to all other businesses within the
jurisdiction of the local government. For these reasons, it is the opinion of this office that
a local government may only impose upon a transportation network company, or any
driver providing transportation services in affiliation with a transportation network
company, a tax, fee or requirement which is generally applicable to any other business
that operates within the jurisdiction of the local government. If a local government
chooses to rely upon industry-specific business license fees and imposes no general
business license fee, it is the opinion of this office that A.B. 176 prohibits the imposition
of an industry-specific fee as a prerequisite for the issuance of a business license to a
transportation network company or its affiliated drivers. Further, it is the opinion of this
office that, if a transportation network company has completed all of the requirements to
obtain a business license from a local government which are of general applicability to all
businesses within its jurisdiction, the local government may not withhold issuance of a
business license to the company.
If you have any further questions regarding this matter, please do not hesitate to
contact this office.
Sincerely,
Brenda J. Erdoes
Legislative Counsel
Asher A. Killian
Senior Deputy Legislative Counsel
Risa
Chief Deputy Legislative Counsel