State limits and PI: to cross or not to cross that is the question. A Shakespearean riddle.
Your driver’s license is accepted in all 50 states. So is your marriage license. What about your IP license?
NASIR stated, several years ago, that it hoped that one day the IP license would also be accepted in other states. Today this is not the case … or it is. Keep reading.
Researching this article, I learned that there are as many opinions on the subject as there are people and there is no real consensus of opinion or understanding on the subject. However, we seek facts and laws, not just opinions.
I spent time in Texas last year. You can drive for days and not get out of that state. Here in New Hampshire I can be in three different states in 60 – 90 minutes. Many residents live here and work across the border. Crossing state lines is a major issue here in the state of Granite.
What do you do with surveillance when the subject crosses the border? Difficult call. Steve Byers, my good friend and mentor, feels this is like following a topic at a members-only club, like American Legion. The surveillance stops at the door. You do not have any legal rights to enter. The client must be happy with the results and their professionalism. You did not trespass.
Steve feels the same concept applies to crossing state lines. Stop at the border, unless you are licensed there. Many licensing authorities reflect 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 passing through and do not live there. Your marriage license is accepted permanently. Why not your IP 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.
A New England licensing agent recently stated, to a licensed private investigator, 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 in more detail, but I don’t fully understand it.
There are several possible scenarios: A mobile surveillance where the person unexpectedly crosses the state line. How about a case for an NH attorney? A NH court case and a witness lives across the border? Or the witness lives in NH but his wife tells him that he is at work, in a border state, close by. He has time to see you today. You go?
There are a lot of opinions and possible solutions. I interact with many IPs in neighboring states. I can pick up a phone and do it. But this does not answer the question. When can you cross a state line?
Some interesting facts can be found in American Law Reports, 93 ALR 2nd.
According to this compendium of cases, a licensed person who performs a single act, or isolated transactions, in a foreign State,no be considered as a participant in that occupation, within the scope of the law that requires the license of that occupation.
Courts look at the intention to participate in these activities with some permanence: in other words, keep a salary, or “do business” in the foreign state.
A foreign corporation / individual (out of state), by performing a single isolated business act, without the purpose of performing any other act there, is not within the provisions of a statute that requires foreign companies to meet specific conditions before to be allowed to do business within the state.
“Doing business” is exercising any particular occupation or profession.
According to data from the 93 ALR 2º: when faced with a single or some isolated transactions, the Court, in reality, determines the intention of the individual. This appears to be to differentiate the intention to complete an assignment from the intention to “do business” or to support yourself 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. To determine jurisdiction, they apply a more flexible approach:
“The Department will consider the following factors in determining jurisdiction. The types of activities that, by themselves, are not considered to demonstrate jurisdiction in Iowa include, but are not limited to, the following:
(1) A private investigation firm outside of Iowa works on a criminal, civil, or administrative case that originates and is filed in another state, but contains some investigative elements in Iowa. “
In North Dakota they have not had to review these types of scenarios, having to cross a state line to finish a task. They assured me, in their letter, that each case would be reviewed independently by the Board. The board believes it would be best “for an investigator to meet our licensing requirements before something like this happens.”
Vermont states that you must obtain a transitional 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. By the way, I’m not complaining. I have several 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 when writing our legislative proposal to reform the system in NH.
Kentucky did not respond to the question. They provided me with a copy of their licensing law, but they did not address the issue directly.
Connecticut also did not respond to the question, stating that they cannot give legal advice and recommended that I read their laws … which do not address the problem. If you need to go to Ct. Don’t bother calling, I guess.
An NH licensed investigator ended up in Vermont in a W / C case, having followed the plaintiff from Claremont, NH unexpectedly. He recorded the plaintiff involved in very intense activity in Vermont. The case ended up in court and the plaintiff’s lawyer questioned the question of its legality. The judge ruled it WAS legal due to circumstances. The investigator was: hired in NH, by an NH attorney, to monitor someone whose legal address was in NH. The investigator had no way of knowing that the plaintiff had purchased land in VT and was digging to begin building a house. The private investigator 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” type of person, yet he took on the licensing authorities and prevailed.
It was a hassle dealing with the Florida authorities, mostly former cops from the Florida licensing division, Jim told me.
The most informed and reasonable person he met was an attorney general who agreed with his arguments and killed both cases, eventually dismissing them.
In one case, a subject was followed from Massachusetts to Florida. Later, Jim testified in probate court during their divorce. The wife had started an affair with a younger man from another state and they met in Florida. His attorney made it very important, in court, that Jim did not have a Florida license.
Jim was not sure, when he started, where he was going to end and thought (from the information provided by the client) that he could go to Virginia, where his alleged lover lived.
His attorney “reported” him to the Florida Department. of State and gave them his investigative report that made its way into the registry in Massachusetts.
The Massachusetts judge reviewed the Florida statute and agreed that Jim was not violating Florida law at all, as he was not “operating” a business in Florida. The judge noted that Florida citizens could not even find him in Florida to hire him, as he had no advertisements, no phone lists, and no office.
The Massachusetts judge said the main reason for “business licenses” is to protect the public from unqualified people. Jim’s Massachusetts license took care of that.
Jim is regulated by Massachusetts, the judge said, so the people who can find and hire him are protected by the Massachusetts licensing authority.
The probate and family court judge allowed all of his testimony on that case. That reduced (by at least $ 50,000.00) the divorce settlement proceedings that the subject received. She and her boyfriend attacked him eagerly, 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 at mass. and ended up in New Jersey. A disability case worth millions and a day after a statement, the subject suddenly boarded a plane and Jim’s investigator followed her to Florida. Should he have parachuted or just given up the task?
They denounced him when he testified in a deposition. He testified in Massachusetts and New Jersey.
Both parties were upset and lost hundreds of thousands of dollars (if not millions) due to these investigations. That is why they filed vindictive complaints with Florida authorities. Hell has no fury …
By the way, while they were “guests” in Florida, they contacted all the local police departments, with the Massachusetts IP identifiers and could not have been treated better.
According to Jim, (like the tv show):
“The main reason we prevailed was always our strong case that ‘we were not running a detective business in Florida.” The judges kept coming back to that point. We do not have special police powers to perform the tasks we do, the IP license is simply a business license.
The Florida judge noted that when he was a lawyer, he often left the state to take depositions and was not licensed as a lawyer in the foreign state. The tasks we were completing in Florida – searching public records, monitoring someone’s activities, investigating, taking photographs in a public area – do not in themselves require a special license. Many others perform those same tasks and do not have special licenses. The IP license is for “conducting a private detective’s business in Florida,” which the judges said we were not doing. “
If this sounds ridiculous, consider this: Jim’s firm was “doing business” in Massachusetts in a Massachusetts-based case. He was visiting Florida to complete homework.
While researching this article, I posted to many IP lists expecting to receive a large number of responses. I have very few.
This is an issue that does not affect all of us, but it could affect many of us. If the circumstance comes to our doorstep, I think it is important that we are aware of the problem, the potential problems and the way the courts and licensing authorities see it.
It is obvious that the courts view this differently than most licensing agents. Apparently licensing agents need to be educated and that’s our job. Licensing is designed to protect the public by keeping unskilled people out of the profession, not to avoid crossing state lines.
Crossing a state line is apparently different from “doing business” in the foreign state.
Each state has different standards for licensing. This could be one piece of the puzzle. Some do not require a license and in Rhode Island each town / city issues the license. They have discussions, from time to time, about the validity of the license in other cities and towns.
Perhaps in the future we will see more consistency in licensing standards and this will help alleviate this problem.