State lines and PIs: to cross or not to cross that is the question. A Shakespearian conundrum.
Your driver's license is accepted in all 50 states. So is your marriage license. What about your PI license?
The NASIR stated, several years ago, it hoped one day the PI license too will be accepted in other states. Today this is not the case...or is it. Read on.
In researching this article I learned there are as many opinions on the subject as there are people and no real consensus of opinion or understanding of the subject matter. However, we are in search of facts and law, not just opinions.
I spent some time in Texas last year. You can drive for days and not leave that State. Here in New Hampshire I can be in three different States in 60 - 90 minutes. Many residents live here and work just over the border. Crossing State lines is an important issue here in the Granite State.
What do you do on surveillance when the subject crosses the border? Tough call. Steve Byers, my good friend and mentor, feels this is like following a subject to a members only club, like the American Legion. Surveillance stops at the door. You have no legal right to enter. The client should be happy with the results and your professionalism. You didn't trespass.
Steve feels the same concept applies to crossing State Lines. Stop at the border, unless you are licensed there. Many licensing authorities mirror this sentiment. However, this does not make it right...or wrong.
Your driver's license is accepted in all states, temporarily, as long as you are just passing through and not living there. Your marriage license is accepted permanently. Why not your PI license?
Licensing Agents here in New England seem to subscribe to the philosophy that a license is required to cross the line to do any part of an investigation.
One New England licensing agent recently stated, to a licensed PI, that crossing the line and having a "conversation" with a witness was not an investigation, but if you "interviewed" the witness, you were "investigating." I would explain this further, but I don't quite grasp it.
There are several scenarios possible: A mobile surveillance where the person unexpectedly crosses the State line. What about a case for a NH attorney? A case in NH Court and one witness lives over the border? Or the witness lives in NH but his wife tells you he is at work, in a bordering state, close by. He does have time to see you today. Do you go?
There are a myriad of opinions and possible solutions. I network with a lot of PIs in neighboring states. I can pick up a phone and get it done. But this does not answer the question. When can you cross a State line?
DISCUSSION
Some interesting data can be found in American Law Reports, 93 ALR 2nd.
According to this compendium of cases, a licensed individual who performs a single act, or isolated transactions, in a foreign State, willnot be considered as engaging in that occupation, within the purview of the law requiring licensure of that occupation.
The Courts look at the intent to engage in these activities with any permanency: In other words, holding themselves out for hire, or "do business" in the foreign state.
A foreign (out of State) Corporation/individual, by doing a single isolated act of business, with no purpose of doing any other acts there, does not come within the provisions of a statute requiring foreign companies to comply with specified conditions before they are permitted to do business within the state.
To "do business "is to carry on any particular occupation or profession.
According to data in 93 ALR 2nd: when confronted with a single or some isolated transactions, the Court, in reality, determines the intent of the individual. This is, it seems, to differentiate the intent to complete an assignment from the intent to "do business" or hold oneself out to do business in the foreign state.
STATE BY STATE
The Dept. of Safety in New Hampshire has stated that one must be licensed in New Hampshire, period, to enter the state on any investigation.
Iowa is a bit more flexible. In order to determine jurisdiction they apply a more flexible approach:
"The Department will consider the following factors in determining jurisdiction. Types of activities that are not, by themselves, viewed as demonstrating jurisdiction in Iowa include, but are not limited to the following:
(1)A non-Iowa based private investigation business works on a criminal, civil or administrative case that that originates and is filed in another state, but contains some investigative elements in Iowa."
In North Dakota they have not had to review this type of scenario, having to cross a state line to finish an assignment. They assured me, in their letter, each case would be reviewed independently by the Board. The board feels it would be best "for an investigator to comply with our licensing requirements in anticipation of any such occurrence."
Vermont states that you must obtain a Transitory Permit (Temp. license) before entering the state. I did this once. The client needed the information ASAP and wanted me to get it. It took 30 days to get the permit. I am not complaining by the way. I have several friends in Vermont who it on the Regulatory Board. I think they have the best system in the country. I used it as a model when drafting our legislative proposal to overhaul the system in NH.
Kentucky did not answer the question. They did supply me with a copy of their licensing law but it did not address the issue directly.
Connecticut also would not answer the question, stating they cannot give legal advice and referred me to read their laws...which do not address the issue. If you need to go into Ct. don't bother to call, I guess.
INDIVIDUAL EXPERIENCES
A NH licensed investigator ended up in Vermont on a W/C case, having followed the claimant from Claremont, NH unexpectedly. He taped the claimant engaged in very strenuous activity in Vermont. The case ended up in Court, and the question of his legality was questioned by the claimant's legal counsel. The judge ruled it WAS legal because of the circumstances. The investigator was: hired in NH, by a NH attorney, to watch someone whose legal address was in NH. There was no way for the investigator to know the claimant had purchased land in VT, and was excavating to start building a house. The PI was not "doing business" in Vermont.
Closer to home is the experience of my colleague Jim Collins from Massachusetts. I have known him for many years and he is a "by the book" kind of guy yet he ran afoul of licensing authorities and he prevailed.
It was a mess dealing with the authorities in Florida mostly ex-cops at the licensing division in Florida, Jim told me.
The most informed and reasonable person he met was a female attorney general who agreed with his arguments and she killed both cases, dismissed them eventually.
In one case a subject was followed from Massachusetts to Florida. Jim later testified in Probate Court during her divorce. The wife had started an affair with a younger man from another State, and they met in Florida. Her attorney made a big deal, in Court, of Jim not having a Florida license.
Jim did not know for certain, when he started, where she was going to end up and thought (from client supplied information) she might be going to Virginia, where her suspected paramour lived.
Her attorney "reported" him to Florida Dept. of State and gave them his investigative report which made its way into the record in Massachusetts.
The Massachusetts Judge reviewed the Florida statute and agreed that Jim was not in violation of Florida law at all, as he was not "operating" a business in Florida. The Judge pointed out Florida citizens could not even find him in Florida to hire him, as he had no ads, no telephone listings, and no office.
The Massachusetts Judge said the primary reason for "business licensing" is to protect the public from unqualified persons. Jim's Massachusetts license took care of that.
Jim is regulated by Massachusetts, the Judge said, so the people up here who can find him and hire him are protected by the Massachusetts licensing authority.
The Judge in Probate & Family Court allowed all of his testimony on that case. That reduced (by at least $50,000.00) the divorce settlement proceeds the subject received. She and her boyfriend came at him with a vengeance, filing complaints and lawsuits against him 1,500 miles away in Florida. Jim prevailed. He was not operating a business in Florida.
The other case started in Mass. and ended up in New Jersey. A disability case worth millions and one day after a deposition the subject boarded a plane suddenly and Jim's investigator followed her to Florida. Should he have parachuted out or just abandoned the assignment?
They reported him when he testified at a deposition. He testified in Massachusetts and in New Jersey.
Both parties were upset and lost hundreds of thousands of dollars (if not millions) because of these investigations. That is why they vindictively filed complaints with Florida authorities. Hell hath no fury...
Incidentally, while they were "guests" in Florida, they checked in with all local Police Departments, with Massachusetts PI Id's and they could not have been treated nicer.
According to Jim, (just like the TV show):
"The biggest reason we prevailed was always our solid case that we were 'not running a detective business in Florida." Judges kept coming back to that point. We have no special police powers to do the tasks we do, the PI license is simply a business license.
The Florida Judge pointed out that when he was an attorney he often went out of state to take depositions and he was not licensed as an attorney in the foreign state. The tasks we were completing in Florida, looking up public records, monitoring someone's activities, researching, taking photographs in a public area, do not in and of themselves require a special license. Many others do those same tasks and have no special licensing. The PI license is for "conducting the business of a Private Detective in Florida" which the judges said we were not doing."
If these seems ridiculous to you consider this: Jim's firm was "doing business" in Massachusetts on a Massachusetts based case. He was visiting Florida to complete the assignment.
CONCLUSION
As I researched this article, I posted to many PI lists expecting to be inundated with replies. I got very few.
This is an issue that does not affect all of us but could affect many of us. If the circumstance arrives on our own doorstep, I think it is important that we are aware of the issue, potential problems, and the way this is viewed by the Courts and licensing authorities.
It is obvious that Courts view this differently than the majority of licensing agents. Apparently the licensing agents need to be educated and that is our task. Licensing is designed is to protect the public by keeping unqualified people out of the profession, not to prevent crossing state lines.
Crossing a State line is apparently different than "doing business" in the foreign State.
Each State has different standards to obtain the license. This could be a piece of the puzzle. A few require no license and in Rhode Island each town/city issues the license. They have debates, from time to time, about the license being valid in other cities and towns.
Perhaps in the future we will see more consistency in licensing standards and this will help to alleviate this problem.
http://www.litigationintelligence.com
Author
John M. Healy is the Past President of The New Hampshire League of Investigators, Inc, and Past President of the New England Council of State Investigator Associations.
He has been a licensed investigator since retiring from the NH State Police at the rank of Lieutenant. He does business as Litigation Intelligence Services, LLC and lives in Warner, NH with his wife, daughter, granddaughter and three cats.
He and his wife Muriel are authoress of the book: Cold Dark Water
http://www.colddarkwater.com
