State lines and PIs – to cross or not to cross

State lines and PIs – to cross or not to cross

State borders and PI: to cross or not to cross that is the question. A Shakespearean conundrum.

Your driver’s license is accepted in all 50 states. As well as your marriage certificate. What about your PI license?

NASIR stated several years ago that it hoped that the PI license would one day be accepted in other states. Today, that’s not the case…or it is. Read on.

In researching this article, I learned that there are as many opinions on the subject as there are people, but no real consensus of opinion or understanding of the subject. However, we seek facts and laws, not just opinions.

I spent some time in Texas last year. You can drive for days and not leave this state. Here in New Hampshire I can be in three different states in 60 – 90 minutes. Many residents live here and work just across the border. Crossing state lines is an important issue here in the Granite State.

What do you do in surveillance when the subject crosses the line? Hard decision. Steve Byers, my good friend and mentor, thinks it’s like following a thread in a members-only club like the American Legion. The surveillance stops at the door. You have no legal right to enter. The client must be satisfied with the results and your professionalism. You didn’t come in.

Steve thinks the same concept applies to crossing state lines. Stop at the border unless you have a license there. Many licensing authorities echo this view. However, that doesn’t make it right…or wrong.

Your driver’s license is accepted in all states, temporarily, as long as you’re only passing through them and don’t live there. Your marriage certificate is accepted permanently. Why not your PI license?

License agents here in New England seem to subscribe to the philosophy that a license is required to cross the border to do any part of an investigation.

A New England licensing agent recently stated to a licensed detective that crossing the line and having a “conversation” with a witness is not an investigation, but if you “interview” the witness, you are “investigating.” I would explain this further, but I don’t fully understand it.

There are several possible scenarios: Mobile surveillance where the person unexpectedly crosses the state line. How about a case for a NH attorney? Case in NH Court and one witness lives across the border? Or the witness lives in NH, but his wife tells you she works, in a border state, nearby. He has time to see you today. Are you going?

There are countless opinions and possible solutions. I am in touch with many private individuals in neighboring states. I can pick up the phone and do it. But that doesn’t answer the question. When can you cross a state border?

DISCUSSION

Some interesting data can be found in American Law Reports, 93 ALR 2nd.

Under this compendium of cases, a licensee that engages in a single act or isolated transactions in a foreign country willno to be considered engaged in that profession, within the scope of the law requiring the licensing of that profession.

Courts consider intention to engage in these activities with any regularity: In other words, to hold a lease or “do business” in the foreign country.

A foreign (extraterritorial) corporation/individual carrying out a single isolated act of business, with no intention of doing any other act there, does not fall within the scope of the provisions of a law requiring foreign companies to comply with certain conditions before being allowed to do business within state owned.

To “do business” means to carry on a particular activity or profession.

According to the data in 93 ALR 2nd: when faced with a single or a few isolated transactions, the Court actually determines the intention of the person. This appears to be to distinguish the intention to carry out an assignment from the intention to “do business” or hold to do business in the foreign country.

STATE BY STATE

The New Hampshire Department of Safety said a person must have a New Hampshire license, period, to enter the state for any investigation.

Iowa is a little more flexible. To determine jurisdiction, they take a more flexible approach:

“The department will consider the following factors in determining jurisdiction. The types of activities that are not, by themselves, considered to demonstrate jurisdiction in Iowa include, but are not limited to, the following:

(1)A non-Iowa private investigation business works on a criminal, civil, or administrative case that originates and is filed in another state but contains some elements of an Iowa investigation.”

In North Dakota, they didn’t have to go through this type of scenario, cross a state line to complete a task. They assured me in their letter that each case would be dealt with independently by the Board. The board believes it would be best “for the investigator to comply with our licensing requirements in anticipation of any such event.”

Vermont states that you must obtain a temporary permit (temporary license) before entering the state. I did this once. The client needed the information as soon as possible and wanted me to get it. It took 30 days to get the permit. I’m not complaining by the way. I have some friends in Vermont who are on the regulatory board. I think they have the best system in the country. I used it as a model in drafting our legislative proposal to overhaul the NH system.

Kentucky did not respond to the question. They did provide me with a copy of their licensing law, but it does not address the issue directly.

Connecticut didn’t answer the question either, saying they couldn’t give legal advice and directed me to read their laws…which don’t address the issue. If you have to go to Ct. don’t bother calling i guess.

INDIVIDUAL EXPERIENCES

A NH licensed investigator ended up in Vermont on a W/C case after unexpectedly following the plaintiff from Clermont, NH. He tape-recorded the plaintiff engaged in a very strenuous activity in Vermont. The case went to court and its legality was questioned by the plaintiff’s lawyer. The judge ruled it WAS legally due to the circumstances. The investigator was: employed in NH by a NH attorney to monitor someone whose legal address is in NH. There was no way for the investigator to know that plaintiff had purchased land in VT and was excavating to begin building a house. PI was not “doing business” in Vermont.

Closer to home is the experience of my colleague Jim Collins from Massachusetts. I’ve known him for many years and he’s a “by the book” guy, but he went head-to-head with the licensing authorities and prevailed.

It was a mess dealing with the Florida authorities, mostly ex-cops from the Florida Department of Licensing, Jim told me.

The most informed and reasonable person he met was a female attorney general who agreed with his arguments and she dismissed both cases, ultimately dismissing them.

In one case, a subject was tracked from Massachusetts to Florida. Jim later testified in probate court during her divorce. The wife began an affair with a younger man from another state and they met in Florida. Her lawyer made a big deal in court that Jim didn’t have a Florida license.

Jim didn’t know for sure when he started where she would end up and thought (from the information provided by the client) that she might go to Virginia where her alleged lover lived.

Her attorney “reported” him to the Florida State Department and gave them his investigative report, which went into the record in Massachusetts.

The Massachusetts judge reviewed the Florida statute and agreed that Jim did not violate Florida law at all because he was not “operating” a business in Florida. The judge pointed out that Florida citizens can’t even find him in Florida to hire him because he has no ads, no phone listings, and no office.

The Massachusetts judge said the main reason for “business licensing” is to protect the public from unqualified individuals. Jim’s Massachusetts license took care of that.

Jim’s is regulated by Massachusetts, the judge said, so people here who can find and hire him are protected by the Massachusetts licensing authority.

The probate and family court judge allowed all of his testimony in that case. This reduces (by at least $50,000.00) the proceeds of the divorce settlement. She and her boyfriend lashed out at him with a vengeance, filing complaints and lawsuits against him 1,500 miles away in Florida. Jim prevailed. He has not operated a business in Florida.

The other case started in Massachusetts and ended in New Jersey. A multi-million disability case and one day after the deposition the subject suddenly got on a plane and Jim’s investigator followed her to Florida. Should he have parachuted or simply given up on the task?

He was reported when he testified. He testified in Massachusetts and in New Jersey.

Both parties were upset and lost hundreds of thousands of dollars (if not millions) due to these investigations. That’s why they vindictively filed complaints with Florida authorities. Hell hath no fury…

By the way, while they were “guests” in Florida, they checked in with all the local police departments, with a Massachusetts PI Id, and couldn’t have been treated better.

According to Jim(just like the TV show):

“The biggest reason we prevailed was always our solid argument that ‘we don’t run a detective business in Florida.’ The judges kept coming back to this point. We have no special police powers to carry out the tasks we carry out, a PI license is simply a business licence.

The Florida judge pointed out that when he was an attorney, he often went out of state to take depositions and was not licensed as an attorney in the foreign state. The tasks we performed in Florida, searching public records, monitoring someone’s activities, researching, taking pictures in a public place, did not in themselves require a special license. Many others perform the same tasks and are not specifically licensed. The PI’s license is to ‘do private investigator business in Florida,’ which the judges said we don’t do.”

If that sounds funny to you, consider this: Jim’s firm was “doing business” in Massachusetts in a Massachusetts-based case. He was visiting Florida to complete the assignment.

CONCLUSION

While researching this article, I posted on many PI lists expecting to be inundated with responses. I have very little.

It’s a problem that doesn’t affect all of us, but it can affect many of us. If the circumstance arrives on our own doorstep, I think it’s important to be aware of the problem, the potential problems and how it’s being dealt with by the courts and licensing authorities.

Obviously, the courts view this differently than most licensing agents. Obviously licensing agents need to be trained and that’s our job. Licensing is intended to protect the public by keeping unqualified people out of the profession, not to prevent crossing state lines.

Crossing a state border is clearly different from “doing business” in a foreign country.

Each state has different standards for obtaining a license. That may be part of the puzzle. Some do not require a license and in Rhode Island every city/town issues a license. They debate, from time to time, about the validity of the license in other cities.

Perhaps in the future we will see more consistency in licensing standards and that will help alleviate this problem.

#State #lines #PIs #cross #cross

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