                                  129 Nev., Advance Opinion to I
       IN THE SUPREME COURT OF THE STATE OF NEVADA


THE STATE OF NEVADA, PRIVATE                          No. 58803
INVESTIGATOR'S LICENSING
BOARD,
Appellant,
vs.
DWAYNE TATALOVICH AND                                   SEP 19 ?ti13
TATALOVICH & ASSOCIATES, INC.,
Respondents.
                                                           TA1T 1T.-
                                                              -77.1 <


            Appeal from a district court order granting a petition for
judicial review of a Private Investigator's Licensing Board decision. First
Judicial District Court, Carson City; James E. Wilson, Judge.
            Affirmed.

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


By the Court, 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



                                                                  /3- ,971415
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 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



      'The Board also cited Tatalovich for working without a license as a
security consultant under NRS 648.0155, but the district court overruled
the Board because it found that Tatalovich merely gave opinion testimony
and did not engage in any of the statutorily enumerated activities.
Because the Board does not appeal this finding, we do not address it.




                                      2
            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 obtaining, information with reference
            to:
                  1. The identity, habits, conduct, business,
            occupation, honesty, integrity, credibility,
            knowledge, trustworthiness, efficiency, loyalty,
            activity, movement, whereabouts, affiliations,


                                       3
            associations, transactions, acts, reputation or
            character of any person;
                   2. The location, disposition or recovery of
            lost or stolen property;
                  3. The cause or responsibility for fires,
            libels, losses, accidents or damage or injury to
            persons or to property;
                   4. Securing evidence to be used before any
            court, board, officer or investigating committee; or
                  5. The prevention, detection and removal of
            surreptitiously installed devices for eavesdropping
            or observation.
            The question presented is whether these statutes vest the
Board with the authority to regulate expert witness work. The Board
maintains that the statutes encompass a wide range of activities and that
expert witnesses may not personally investigate facts in Nevada unless
they hold a Nevada private investigator's license. By extension, the Board
argues that conducting any activity in Nevada that is investigatory in
nature constitutes a private investigation for which NRS 648.060 requires
a license. Tatalovich counters that, as a matter of law, expert witnesses
need not hold a Nevada private investigator's license to research their
cases.
            The Board's reading of the licensing statutes gives them
greater reach than their text and evident purpose allow. To be sure, the
language "engage in the business of," NRS 648.060(1)(a); see NRS 648.012,
is neither defined nor self-limiting. But NRS 648.060(1)(b)'s reference to
"[a]dvertis[ing one's] business as such" suggests that the statute regulates
those who solicit and accept employment for the purpose of providing the
professional services named, not just anyone who incidentally undertakes
activities also commonly performed by those professionals en route to



                                     4
providing a different service—here, forensic consulting or expert opinion
testimony.
              Licensing requirements "protect the public safety and general
welfare" of the public by restricting the activities of unlicensed or
unqualified individuals who claim but do not possess the skills required of
a professional in that field. NRS 648.017; see also NRS 622.080
(regulating an occupation or profession is for the "benefit of the public").
NRS Chapter 648 governs professionals providing a primary service to
clients who either rely or act upon that ,service for their own safety or
welfare or that of their clients, patrons, or families. 2 Given this focus, it
makes sense for these professionals to be licensed and regulated by the
Board. However, no similar purpose is achieved by extending the
licensing requirement to expert witnesses such as Tatalovich, the validity
of whose qualifications and work is tested—and contested—in court.
              Kennard v. Rosenberg, 273 P.2d 839 (Cal. Ct. App. 1954), is on
point. In Kennard, an attorney hired a retired fireman and two
chemists—none of whom held a private investigator's license—to testify as
experts in a lawsuit over the cause of a fire.     Id. at 840. The experts
inspected the site of the fire, took samples, ran chemical tests, reviewed
photographs, and conducted chemical experiments.         Id. at 840-41. The
court concluded that the California private investigator's licensing statute,


      2 Forexample, a private patrol officer provides security to protect
others and their property, prevent property loss or theft, or recover lost or
stolen property. NRS 648.013. A person who hires a repossessor relies on
the person to recover personal property subject to a security interest. NRS
648.015. And an employer relies on a security guard for personal and
property protection. NRS 648.016.




                                      5
                which closely resembles Nevada's, did not apply to experts employed "to
                make tests, conduct experiments and act as consultants in a case
                requiring the use of technical knowledge." The object of the experts'
                activities was to gather information to form their opinions, not private
                investigation. Id. at 842.
                              The Board notes that, in Kennard, the experts held California
                licenses in their fields of specialty, just not private investigator's licenses.
                It characterizes Tatalovich's activities, by contrast, as pure private
                investigation, not subject to other licensing schemes. But this distinction
                does not diminish Kennard's persuasiveness. In the first place, the Board
                ignores the fact that Tatalovich ran the background checks in Arizona,
                where he holds a private investigator's license. 3 Second, an expert may
                well need a professional license in a particular field to testify credibly—or
                at all—in a particular area. See also Wright v. Las Vegas Hacienda, Inc.,
                102 Nev. 261, 720 P.2d 696 (1986) (noting that NRS 50.275 does not
                impose a licensing requirement on expert witnesses). But the question is
                whether experts must also have a private investigator's license to gather
                information needed to develop or support their testimony. It may be, as
                the Board argues, that the risk of illegal or unethical activities does not
                vanish just because it is the predicate for expert opinion testimony, as




                      3 TheBoard argues that the background check effectively occurred in
                Nevada because it accessed information from Nevada databases. But an
                Internet search that utilizes a Nevada database open to anyone with
                appropriate access does not, by itself, subject the user to the Board's
                control.



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opposed to more direct use. 4 Nonetheless, work by forensic experts, even
work not subject to other professional licensing requirements, is not
unregulated. It is limited by the rules of the court, the judge's approval of
the expert's qualifications to provide the opinion, and the judge's
determination of what testimony, if any, to allow.      Cf. Baggerly v. CSX
Transp. Inc., 635 S.E.2d 97, 104 (S.C. 2006) ("We refuse to endorse an
interpretation of the [local] professional engineer licensing statute which
has the potential of either preventing out-of-state experts from testifying
in South Carolina courts or imposing the unreasonable burden of getting
licensed in the State simply to be permitted to provide forensic
testimony.").
             The Board's reading of NRS 648.012 and NRS 648.060 would
capture conduct far afield from private investigation. For example, a
journalist who searches public records for a news story on a politician
could be acting as a private investigator by obtaining "information with
reference to [a person's] identity, habits, conduct. . . honesty, integrity."
NRS 648.012(1). 5 Is a plumber who inspects a drain to determine whether


      4The   Board notes but does not develop the argument that NRS
648.012(4) refers to "[s]ecuring evidence to be used before any court,
board, officer or investigating committee," as work requiring a private
investigator's license. The 2013 amendments to NRS 648.012 convince us
that this subsection applies to work undertaken for the purpose of
gathering direct evidence, not work undertaken by an expert witness as
the basis for his or her opinion testimony. See infra note 6.

      5 In
         2009, the Legislature conducted hearings on whether NRS
Chapter 648 regulates all investigative activities, without regard to
purpose or scope. Some of the examples in the text are drawn from those
hearings. See Hearing on S.B. 265 Before the Assembly Comm. on
Commerce and Labor, 75th Leg. (Nev., May 15, 2009) (statement of
                                               continued on next page . . .


                                      7
a lost wedding ring is lodged in a sink's pipe acting as a private
investigator by obtaining information about "Mlle location. . . of
lost. . . property"? NRS 648.012(2). What about a prospective employer
who calls past employers to learn an applicant's work history? See NRS
648.012(1) (acting as a private investigator includes obtaining
"information with reference to . . . [t]he . . . honesty, integrity, credibility,
knowledge, trustworthiness, efficiency, loyalty. . . reputation or character
of any person").
              The Legislature has not endorsed the Board's expansive view
of what constitutes private investigation. NRS Chapter 648 contains a
growing list of exemptions.      See NRS 648.018. And in 2013, after the
Board cited Tatalovich and this litigation ensued, the Legislature
amended NRS 648.012 to create a specific exception for expert witnesses
who are "retained for litigation or trial. . . and who perform [1 duties and
tasks within his or her field of expertise that are necessary to form his or
her opinion" related to a possible crime or tort. 6 These amendments


. . . continued

Assemblywoman Barbara E. Buckley, Member of the Assembly Committee
on Commerce and Labor, indicating that "[at seems unbelievable that
somebody looking through public records could be accused of being a
private investigator"); see also Hearing on S.B. 265 Before the Senate
Comm. on Commerce and Labor, 75th Leg. (Nev., March 23, 2009)
(statement of Senator Maggie Carlton, Chair of the Senate Committee on
Commerce and Labor, noting that it "was not anyone's intention" that the
licensing requirement be extended to journalists investigating public
records for commercial purposes).

      6 Theamendment was signed on June 1, 2013, and takes effect
October 1, 2013. A.B. 306, 77th Leg. (Nev. 2013). Of note, the 2013
                                            continued on next page . . .


                                        8
                 appear to clarify, not change, the law, correcting a "doubtful [agency]
                 interpretation" of a controlling statute.   Pub. Emps.' Benefits Program v.
                 Las Vegas Metro. Police Dep't, 124 Nev. 138, 156-57, 179 P.3d 542, 554
                 (2008) (internal quotations omitted); see In re Estate of Thomas, 116 Nev.
                 492, 495, 998 P.2d 560, 562 (2000) (construing amendment as clarifying a
                 doubtful interpretation of an earlier statute).
                              For these reasons, we reject the Board's position. NRS
                 648.012 regulates those employed or acting as private investigators to
                 protect public safety and welfare and the consumers of their services. Its
                 licensing requirement does not apply to experts employed to give an
                 opinion on some aspect(s) of a case where the expert witness performs
                 duties and tasks within his or her field to verify or obtain information
                 necessary to form the basis for the opinion testimony.
                              Tatalovich was hired as an expert witness, and in forming his
                 testimony he visited the crime scenes, took photographs and
                 measurements, examined security measures, and reconstructed events.
                 He also ran background checks on one of the accused in order to form an
                 opinion concerning the soundness of a hiring decision. These tasks were




                 . . . continued

                 amendments leave intact NRS 648.012's reference to "[s] ecuring evidence
                 to be used before any court, board, officer or investigating committee," as
                 requiring a private investigator's license. To the extent an individual
                 works to unearth facts to be used as direct evidence, as opposed to
                 information to be used as the basis for expert opinion testimony, NRS
                 648.060's licensing requirements may apply.


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necessary to form the basis of his opinion testimony. And Tatalovich's
Arizona license granted him access to the relevant databases for the
background checks. His actions therefore fell outside the Nevada licensing
requirement.
               We affirm.


                                                                 C.J.




                               J.
Hardesty


                               J.
Parraguirre



Douglas


           s




Saitta




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