SB 305-FN – AS INTRODUCED

2008 SESSION

08-2352

10/04

SENATE BILL 305-FN

AN ACT relative to the regulation of private investigators.

SPONSORS: Sen. Clegg, Dist 14

COMMITTEE: Executive Departments and Administration

ANALYSIS

This bill establishes the regulation of private investigators by the department of justice.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

08-2352

10/04

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eight

AN ACT relative to the regulation of private investigators.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Chapter; Private Investigators. Amend RSA by inserting after chapter 357-G the following new chapter:

CHAPTER 357-H

PRIVATE INVESTIGATORS

357-H:1 Definitions. In this chapter:

I. “Person” includes any individual, firm, company, association, organization, partnership, and corporation.

II. “Department” means the department of justice.

III. “Licensee” means a person licensed under this chapter.

IV. “Manager” means the individual under whose direction, control, charge, or management the business of a licensee is operated.

V. “Employer” means a person who employs an individual for wages or salary, lists the individual on the employer’s payroll records, and withholds all legally required deductions and contributions.

VI. “Employee” means an individual who works for an employer, is listed on the employer’s payroll records, and is under the employer’s direction and control.

VII. “Employer-employee” relationship means a relationship in which an individual works for another, the individual’s name appears on the payroll records of the employer, and the employee is under the direction and control of the employer.

VIII. “Firearm permit” includes “firearms permit,” “firearms qualification card,” “firearms qualification,” and “firearms qualification permit.”

357-H:2 Administration by Attorney General.

I. The attorney general shall administer and enforce the provisions of this chapter. Every power and duty granted to or imposed upon the attorney general may be exercised by any other officer or employee of the department of justice authorized by the attorney general, but the attorney general shall have the supervision of and the responsibility for all powers and duties exercised by these officers and employees.

II. The attorney general may appoint and fix the compensation of inspectors, investigators, and other personnel as may be necessary for the enforcement of this chapter.

III. Nothing in this chapter shall be construed as entitling any person to practice law in this state unless he or she is an active member of the New Hampshire bar.

357-H:3 License Required; Penalties.

I. No person shall engage in a business regulated by this chapter; act or assume to act as, or represent himself or herself to be, a licensee unless he or she is licensed under this chapter; and no person shall falsely represent that he or she is employed by a licensee.

II.(a) Any person engaging in a business as a private investigator who violates paragraph is guilty of a violation.

(b) This section does not apply to a violation of paragraph I if the defendant has had his or her license previously revoked or suspended.

(c) A violation of paragraph I is punishable by a fine of $1,000. No portion of the fine may be suspended by the court unless as a condition of that suspension the defendant is required to submit proof of a current valid license for the profession of private investigator which was the basis for his or her conviction.

III.(a) Unless specifically exempted, no person shall engage in the business of private investigator, unless that person has applied for and received a license to engage in that business pursuant to this chapter.

(b) Any person who violates any provision of this chapter or who conspires with another person to violate any provision of this chapter, relating to private investigator licensure, or who knowingly engages a nonexempt unlicensed person is guilty of a misdemeanor punishable by a fine of $5,000 or by imprisonment in the county jail not to exceed one year, or both.

(c) Any person who does any of the following is guilty of a misdemeanor that is punishable by a fine of $10,000 or by imprisonment for not more than one year, or both:

(1) Acts as or represents himself or herself to be a private investigator licensee under this chapter when that person is not a licensee under this chapter;

(2) Falsely represents that he or she is employed by a licensee under this chapter when that person is not employed by a licensee under this chapter;

(3) Carries a badge, identification card, or business card, indicating that he or she is a licensee under this chapter when that person is not a licensee under this chapter;

(4) Uses a letterhead or other written or electronically generated materials indicating that he or she is a licensee under this chapter when that person is not a licensee under this chapter; or

(5) Advertises that he or she is a licensee under this chapter when that person is not a licensee,

(d) Any person who is convicted of a violation of this paragraph shall not be issued a license for a period of one year following a first conviction and shall not be issued a license for a period of 5 years following a second or subsequent conviction.

IV. The attorney general shall gather evidence of violations of this chapter and of any rule established pursuant to this chapter by persons engaged in the business of private investigator who fail to obtain a license and shall gather evidence of violations and furnish that evidence to prosecuting officers of any county, town, or city for the purpose of prosecuting all violations occurring within their jurisdiction.

357-H:4 Out-of-State Practitioners; Reciprocity. The attorney general may authorize a licensed private investigator from another state to continue in this state for 60 days an investigation that originated in the state which is the location of the private investigator’s principal place of business if that state provides reciprocal authority for New Hampshire’s licensees. The private investigator shall notify the department in writing upon entering the state for the purpose of continuing an investigation and shall be subject to all provisions of this chapter. For purposes of this section, “originated” means investigatory activities conducted subsequent to an agreement to conduct an investigation.

357-H:5 Practice of Private Investigation.

I. A private investigator within the meaning of this chapter is a person, other than an insurance adjuster, who, for any consideration whatsoever engages in business or accepts employment to furnish or agrees to furnish any person to protect persons pursuant to RSA 357-H:6, or 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:

(a) Crime or wrongs done or threatened against the United States of America or any state or territory of the United States of America.

(b) The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person.

(c) The location, disposition, or recovery of lost or stolen property.

(d) The cause or responsibility for fires, libels, losses, accidents, or damage or injury to persons or to property.

(e) Securing evidence to be used before any court, board, officer, or investigating committee.

II. For the purposes of this section, a private investigator is any person, firm, company, association, partnership, or corporation acting for the purpose of investigating, obtaining, and reporting to any employer, its agent, supervisor, or manager, information concerning the employer’s employees involving questions of integrity, honesty, breach of rules, or other standards of performance of job duties. This section shall not apply to a public utility regulated by the public utilities commission, or its employees.

III.(a) A private investigator may provide services to protect a person, but not property, which is incidental to an investigation for which the private investigator has been previously hired to perform. The private investigator shall comply with requirements relating to the carrying of firearms and the receipt of a valid firearms qualification card from the department, and provisions relating to the maintenance of an insurance policy.

(b) If a person acts for, or on behalf of a private investigator in providing those services, that person shall be an employee of the private investigator, and there shall be an employer-employee relationship, and that person shall comply with the requirements of this section with the exception of the maintenance of an insurance policy.

357-H:6 Exceptions. This chapter shall not apply to:

I. A person employed exclusively and regularly by any employer who does not provide contract security services for other entities or persons, in connection with the affairs of such employer only and where there exists an employer-employee relationship if that person at no time carries or uses any deadly weapon in the performance of his or her duties. For purposes of this chapter, “deadly weapon” means any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, any dirk, dagger, pistol, revolver, or any other firearm, any knife having a blade longer than 5 inches, any razor with an unguarded blade and any metal pipe or bar used or intended to be used as a club.

II. An officer or employee of the United States of America, or of this state or a political subdivision thereof, while the officer or employee is engaged in the performance of his or her official duties, including uniformed peace officers employed part time by a public agency pursuant to a written agreement between a chief of police or sheriff and the public agency, provided the part-time employment does not exceed 50 hours in any calendar month.

III. A person engaged exclusively in the business of obtaining and furnishing information as to the financial rating of persons.

IV. A charitable philanthropic society or association duly incorporated under the laws of this state which is organized and maintained for the public good and not for private profit.

V. An attorney at law in performing his or her duties as an attorney at law.

VI. Admitted insurers and agents and insurance brokers licensed by the state, performing duties in connection with insurance transacted by them.

VII. Any financial institution subject to the jurisdiction of the banking department.

VIII. A person engaged solely in the business of securing information about persons or property from public records.

IX. A peace officer of this state or a political subdivision thereof while the peace officer is employed by a private employer to engage in off-duty employment. However, nothing herein shall exempt a peace officer who either contracts for his or her services or the services of others as a private investigator or contracts for his or her services as or is employed as an armed private investigator. For purposes of this chapter, “armed private investigator” means an individual who carries or uses a firearm in the course and scope of that contract or employment.

X. A licensed insurance adjuster in performing his or her duties within the scope of his or her license as an insurance adjuster.

XI. Any secured creditor engaged in the repossession of the creditor’s collateral and any lessor engaged in the repossession of leased property in which it claims an interest.

XII. The act of serving process by an individual.

357-H:7 Injunctions; Fines; Restitution.

I. The superior court in and for the county wherein any person has engaged or is about to engage in any act in violation of this chapter may, upon a petition filed by the department, issue an injunction or other appropriate order restraining this conduct and may impose civil fines not exceeding $10,000, except that there shall be no requirement to allege facts necessary to show or tending to show lack of adequate remedy at law or irreparable injury.

II. The superior court for the county in which any person has engaged in any act which constitutes a violation of this chapter may, upon a petition filed by the department, order this person to make restitution to persons injured as a result of the violation.

III. The court may order a person subject to an injunction or restraining order, provided for in paragraph I, or subject to an order requiring restitution pursuant to paragraph II, to reimburse the department for expenses incurred by the department in its investigation related to its petition.

IV. A proceeding to impose the fine specified in paragraph I and enjoin the unlicensed operation may be brought in any court of competent jurisdiction by the attorney general, or by any county attorney or other prosecutor with the consent of the attorney general.

V. The remedy provided for by this section shall be in addition to any other remedy provided for in this chapter.

357-H:8 License Application. An application for a license under this chapter shall be on a form prescribed by the attorney general and accompanied by the application fee provided in rules adopted by the attorney general.

I. An application shall be verified and shall include:

(a) The full name and business address of the applicant.

(b) The name under which the applicant intends to do business.

(c) A statement as to the general nature of the business in which the applicant intends to engage.

(d) A verified statement of his or her experience qualifications.

(e)(1) If the applicant is an individual, a qualified manager, partner of a partnership or officer of a corporation designated in subparagraph (h), one personal identification form provided by the department upon which shall appear a photograph taken within one year immediately preceding the date of the filing of the application together with 2 legible sets of fingerprints, one set of which shall be forwarded to the Federal Bureau of Investigation for purposes of a background check, on a form approved by the department, and a personal description of each person, respectively. The identification form shall include residence addresses and employment history for the previous 5 years and be signed under penalty of perjury.

(2) The department may impose a fee not to exceed $3 for processing classifiable fingerprint cards submitted by applicants, excluding those submitted into an electronic fingerprint system using electronic fingerprint technology.

(f) In addition, if the applicant for a license is an individual, the application shall list all other names known as or used during the past 10 years and shall state that the applicant is to be personally and actively in charge of the business for which the license is sought, or if any other qualified manager is to be actively in charge of the business, the application shall be subscribed, verified, and signed by the applicant, under penalty of perjury, and if any other person is to be actively in charge of the business, the application shall also be subscribed, verified, and signed by that person under penalty of perjury.

(g) If the applicants for license are copartners, the application shall state the true names and addresses of all partners and the name of the partner to be actively in charge of the business for which the license is sought, and list all other names known as or used during the past 10 years, or if a qualified manager other than a partner is to be actively in charge of the business, then the application shall be subscribed, verified, and signed by all of the partners under penalty of perjury, and if any other person is to be actively in charge of the business, the application shall also be subscribed, verified, and signed by that person, under penalty of perjury, by all of the partners and qualified manager, or by all of the partners or the qualified manager.

(h) If the applicant for license is a corporation, the application shall state the true names, and complete residence addresses of the chief executive officer, secretary, chief financial officer, and any other corporate officer who will be active in the business to be licensed. The application shall also state the name and address of the designated person to be actively in charge of the business for which the license is sought. The application shall be subscribed, verified, and signed by a duly authorized officer of the applicant and by the qualified manager thereof, under penalty of perjury.

(i) Any other information, evidence, statements, or documents as may be required by the attorney general.

II. Before an application for a license is granted, the applicant for a license or his or her manager shall meet all of the following:

(a) Be at least 18 years of age.

(b) Have no record, in any jurisdiction, of misdemeanors for theft, fraud, perjury, assaults, drug offenses, or sex crimes, domestic violence related crimes, stalking or of any felony convictions, or illegally using, carrying, or possessing a deadly weapon.

(c) Comply with the requirements specified in this chapter for the particular license for which an application is made.

(d) Comply with other qualifications as the attorney general may adopt by rule.

III. After a hearing the attorney general may deny a license unless the applicant makes a showing satisfactory to the attorney general that the applicant, if an individual, has not, or if the applicant is a person other than an individual, that its manager and each of its officers have not:

(a) Committed any act, which, if committed by a licensee, would be a ground for the suspension or revocation of a license under this chapter.

(b) Committed any act constituting dishonesty or fraud.

(c) Have no record, in any jurisdiction, of misdemeanors for theft, fraud, perjury, assaults, drug offenses, or sex crimes, domestic violence related crimes, stalking or of any felony convictions, or illegally using, carrying, or possessing a deadly weapon.

(d) Been refused a license under this chapter or had a license revoked.

(e) Been an officer, partner, or manager of any person who has been refused a license under this chapter or whose license has been revoked.

(f) While unlicensed, committed or aided and abetted the commission of, any act for which a license is required by this chapter.

(g) Knowingly made any false statement in his or her application.

IV. The attorney general may refuse to issue any license provided for in this chapter to any person:

(a) Who has had any license revoked, or whose license is under suspension, or has failed to renew his or her license while it was under suspension.

(b) If any member of any partnership, or any officer or attorney general of any corporation, or any officer or person acting in a managerial capacity of any firm or association has had any license issued to him or her revoked, or whose license is under suspension, or who has failed to renew his or her license while it was under suspension.

(c) If any member of the partnership, or any officer or attorney general of the corporation, or any officer or person acting in a managerial capacity of the firm or association, was either a member of any partnership, or an officer or attorney general of any corporation, or an officer or person acting in a managerial capacity of any firm or association, whose license has been revoked, or whose license is under suspension, or who failed to renew a license while it was under suspension, and while acting as such member, officer, attorney general, or person acting in a managerial capacity participated in any of the prohibited acts for which any such license was revoked or suspended.

V. Except as otherwise provided by this section, an applicant, or his or her manager, for a license as a private investigator shall have had at least 3 years of experience in investigation work. A year’s experience shall consist of not less than 2,000 hours of actual compensated work performed by each applicant preceding the filing of an application. An applicant who holds a law degree or who has completed a 4-year course in police science, criminal justice, criminal law, or the equivalent thereof shall be required to have had 2 years of experience in investigation work. An applicant shall substantiate the claimed years of qualifying experience and the exact details as to the character and nature thereof by written certifications from the employer, subject to independent verification by the attorney general as he or she may determine.

VI. Only an employer or his or her designated agent may certify experience for purposes of this section. For purposes of this section, the term “employer” shall mean only those persons, corporations, partnerships, proprietorships, or other associations which, in the employ of the designated individual, regularly and routinely withheld income taxes and other payroll deductions for direct forwarding to governmental taxing authorities. An employer who is a licensee shall respond in writing within 30 days to an applicant’s written request for certifications of the applicant’s work experience as an employee and either provide the certifications or the reasons for denial. If the applicant notifies the attorney general in writing, under penalty of perjury, that the applicant is unable to obtain the required written response from a licensee or provides the licensee’s written denial and states, under penalty of perjury, that the licensee’s reasons for denial are invalid or insufficient and the attorney general concurs, the attorney general may require the licensee to provide the department with all relevant employment records regarding the applicant for evaluation in substantiating the applicant’s employment experience.

VII. The department shall consider requiring, and may require, an applicant for licensure to submit proof of satisfactory completion of a course in professional ethics. If the department requires an applicant to submit proof of satisfactory completion of a course in professional ethics the department may specify which courses and course providers satisfy the requirement.

357-H:9 Examination. The attorney general may require an applicant or his or her manager, to demonstrate his or her qualifications by a written or oral examination, or a combination of both.

I.(a) When creating or updating the licensing examination the department shall consider all of the following:

(1) Including in the examination questions on the subject of laws relating to privacy and professional ethics.

(2) Supplementing the examination with a separate examination on the subject of professional ethics.

(b) If the department determines that a separate professional ethics examination is necessary, the department shall require that current licensees take the separate professional ethics examination if this requirement is appropriate.

II. Payment of the application fee prescribed by this chapter entitles an applicant or his or her manager to one examination without further charge. If the person fails to pass the examination, he or she shall not be eligible for any subsequent examination except upon payment of the reexamination fee prescribed by this chapter for each subsequent examination.

III.(a) Experience for purposes of taking the examination for licensure as a private investigator shall be limited to those activities actually performed in connection with investigations, and only if those activities are performed by persons who are employed in the following capacities:

(1) Sworn law enforcement officers possessing powers of arrest and employed by agencies in the federal, state, or local government.

(2) Military police of the armed forces of the United States or the national guard.

(3) An insurance adjuster regulated by the department of insurance.

(4) Persons employed by a private investigator who are duly licensed in accordance with this chapter.

(5) Persons employed by repossessors only to the extent that those persons are routinely and regularly engaged in the location of debtors or the location of personal property utilizing methods commonly known as “skip tracing.” For purposes of this section, only that experience acquired in that skip tracing shall be credited toward qualification to take the examination.

(6) Persons duly trained and certified as an arson investigator and employed by a public agency engaged in fire suppression.

(7) Persons trained as investigators and employed by a public defender to conduct investigations.

(b) Persons possessing an associate of arts degree in police science, criminal law or justice from an accredited college shall be credited with 1,000 hours of experience in investigative activities.

(c) The following activities shall not be deemed to constitute acts of investigation for purposes of experience toward licensure:

(1) The serving of legal process or other documents.

(2) Activities relating to the search for heirs or similar searches which involve only a search of public records or other reference sources in the public domain.

(3) The transportation or custodial attendance of persons in the physical custody of a law enforcement agency.

(4) The provision of bailiff or other security services to a court of law.

(5) The collection or attempted collection of debts by telephone or written solicitation after the debtor has been located.

(6) The repossession or attempted repossession of personal property after that property has been located and identified.

(d) Where the activities of employment of an applicant include those which qualify as bona fide experience as stated in this section as well as those which do not qualify, the attorney general may, by delegation to the department, determine and apportion that percentage of experience for which any applicant is entitled to credit.

357-H:10 Identification Card. Upon the issuance of a license, a pocket card of the size, design, and content as may be determined in rules adopted by the attorney general shall be issued by the department to each licensee, if an individual, or if the licensee is a person other than an individual, to its manager and to each of its officers and partners. The pocket card is evidence that the licensee is licensed pursuant to this chapter. The card shall contain the signature of the licensee, signature of the attorney general, and a photograph of the licensee, or bearer of the card, if the licensee is other than an individual. The card shall clearly state that the person is licensed as a private investigator or is the manager or officer of the licensee. The pocket card is to be composed of a durable material and may incorporate technologically advanced security features. The department may charge a fee sufficient to reimburse the department’s costs for furnishing the pocket card. The fee charged may not exceed the actual direct costs for system development, maintenance, and processing necessary to provide this service. When a person to whom a card is issued terminates his or her position, office, or association with the licensee, the card shall be surrendered to the licensee and within 5 days thereafter shall be mailed or delivered by the licensee to the department for cancellation. Every person, while engaged in any activity for which licensure is required, shall display his or her valid pocket card as provided by regulation.

357-H:11 Operation of Business.

I. The license shall at all times be posted in a conspicuous place in the principal place of business of the licensee.

II. A license issued under this chapter is not assignable.

III. A licensee shall at all times be legally responsible for the good conduct in the business of each of his or her employees or agents, including his or her manager.

IV. Each licensee shall maintain a record containing information relative to his or her employees as may be prescribed by the attorney general.

V. No licensee shall conduct a business under a fictitious or other business name unless and until he or she has obtained the written authorization of the department to do so. The department shall not authorize the use of a fictitious or other business name which is so similar to that of a public officer or agency or of that used by another licensee that the public may be confused or misled thereby. A licensee desiring to conduct his or her business under more than one fictitious business name shall obtain the authorization of the department for the use of each name. The licensee shall pay a fee determined in rules adopted under RSA 541-A for each authorization to use an additional fictitious business name and for each change in the use of a fictitious business name.

VI. Each licensee shall file with the department the complete address of his or her principal place of business including the name and number of the street, or, if the street where the business is located is not numbered, the number of the post office box. The attorney general may require the filing of other information for the purpose of identifying the principal place of business.

VII.(a) A licensee shall notify the department within 30 days of any change in its corporate officers or of any addition of a new partner.

(b) Applications, on forms prescribed by the attorney general, shall be submitted by all new officers and partners. The attorney general may suspend or revoke a license issued under this chapter if the attorney general determines that the new officer or partner of a licensee has committed any of the acts constituting grounds to deny an application for a license or to take disciplinary action against a licensee.

357-H:12 Advertising.

I. Every advertisement by a licensee soliciting or advertising business shall contain his or her business name, business address or telephone number, and license number as they appear in the records of the department. For the purposes of this section, “advertisement” shall include any business card, stationery, brochure, flyer, circular, newsletter, fax form, printed or published paid advertisement in any media form, or telephone book listing. Every advertisement by a licensee soliciting or advertising their business shall contain his or her business name, business address or telephone number, and license number, as they appear in the records of the department.

II. A licensee shall not advertise or conduct business from any location other than that shown on the records of the department as his or her principal place of business unless he or she has received a branch office certificate for the location after compliance with the provisions of this chapter and any additional requirements necessary for the protection of the public as the attorney general may by regulation prescribe. A licensee shall notify the department in writing within 30 days after closing or changing the location of a branch office.

357-H:13 Qualified Managers.

I. The business of each licensee shall be operated under the active direction, control, charge, or management, in this state, of the licensee, if he or she is qualified, or the person who is qualified to act as the licensee’s manager, if the licensee is not qualified.

II. No person shall act as a qualified manager of a licensee until he or she has complied with each of the following:

(a) Demonstrated his or her qualifications by a written or oral examination, or a combination of both, if required by the attorney general.

(b) Made a satisfactory showing to the attorney general that he or she is qualified.

III. A person shall not act as a qualified manager of more than 5 licensees. The person acting as a qualified manager shall share equally with the licensee the responsibility and any liability for the conduct of the business of the licensee and the actions of the employees and other personnel of the licensee. This section shall not apply to any licensee that notifies the department in writing that he or she is not conducting any business, but requests to maintain a current license status with the department. Whenever the licensee resumes conducting business, the licensee shall so inform the department in writing within 30 days.

IV. Any person acting as a qualified manager of a licensee shall be the holder of a qualification certificate issued by the department. The certificate, together with the current renewal certificate, shall be predominantly displayed below the private investigator’s license.

357-H:14 Continuance of Business.

I. In case of the death of a person licensed as an individual, a member of the immediate family of the deceased licensee shall be entitled to continue the business under the same license for 120 days following the death of the licensee, provided that written application for permission is made to the department within 30 days following the death of the licensee. At the end of the 120-day period, the license shall be automatically canceled. If no request is received within the 30-day period, the license shall be automatically canceled at the end of that period.

II. If the qualified manager ceases for any reason whatsoever to be connected with the licensee to whom the license is issued, the licensee shall notify the department in writing 30 days from this cessation. If the notice of cessation is filed timely, the license shall remain in force for a period of 90 days after cessation or for an additional period, not to exceed one year, as approved by the attorney general, pending the qualification of another manager as provided in this chapter. After the 90-day period or additional period, as approved by the attorney general, the license shall be automatically suspended, unless the department receives written notification that the license is under the active charge of a qualified manager. If the licensee fails to notify the department within the 30-day period, his or her license shall be automatically suspended and may be reinstated only upon the filing of an application for reinstatement, payment of the reinstatement fee, and the qualification of a manager as provided in this chapter.

III. In the case of the death or disassociation of a partner of an entity licensed as a partnership, the licensee shall notify the department, in writing, within 30 days from the death or disassociation of the individual. If notice is given, the license shall remain in force for 90 days following the death or disassociation. At the end of this period the license shall be automatically canceled. If the licensee fails to notify the department within the 30-day period, the license shall be automatically canceled.

IV. A license extended under this section is subject to all other provisions of this chapter.

357-H:15 Prohibited Activities.

I. Any licensee or officer, partner, or manager of a licensee may divulge to any law enforcement officer, or his or her representative, any information he or she may acquire as to any criminal offense, but he or she shall not divulge to any other person, except as he or she may be required by law so to do, any information acquired by him or her except at the direction of the employer or client for whom the information was obtained.

II. No licensee or officer, partner, manager, or employee of a licensee shall knowingly make any false report to his or her employer or client for whom information was being obtained.

III. No written report shall be submitted to a client except by the licensee, qualifying manager, or a person authorized by one or either of them, and the person submitting the report shall exercise diligence in ascertaining whether or not the facts and information in the report are true and correct.

IV. No licensee, or officer, partner, manager, or employee of a licensee shall use a badge in connection with the official activities of the licensee’s business.

V. No licensee, or officer, partner, manager, or employee of a licensee, shall use a title, or wear a uniform, or use an insignia, or use an identification card, or make any statement with the intent to give an impression that he or she is connected in any way with the federal government, a state government, or any political subdivision of a state government.

VI. No licensee, or officer, partner, qualified manager, or employee of a licensee shall use any identification to indicate that he or she is licensed as a private investigator other than the official identification card issued by the department or the business card regularly used by the business. However, a licensee may issue an employer identification card.

VII. No licensee, or officer, partner, manager, or employee of a licensee, shall enter any private building or portion thereof, except premises commonly accessible to the public, without the consent of the owner or of the person in legal possession thereof.

VIII. No licensee shall permit an employee or agent in his or her own name to advertise, engage clients, furnish reports or present bills to clients, or in any manner whatever conduct business for which a license is required under this chapter. All business of the licensee shall be conducted in the name of and under the control of the licensee.

IX. No licensee, officer, partner, manager, or employee of a licensee shall knowingly and directly solicit employment from any person who has directly sustained bodily injury or from that person’s spouse or other family member to obtain authorization on behalf of the injured person as an investigator to investigate the accident or act which resulted in injury or death to that person or damage to the property of that person. Nothing in this section shall prohibit the soliciting of employment from that injured person’s attorney, insurance company, self-insured administrator, insurance adjuster, employer, or any other person having an indirect interest in the investigation of the injury. This section shall not apply to any business agent or attorney employed by a labor organization. No licensee, officer, partner, or manager of a licensee shall pay or compensate any of his or her employees or agents on the basis of a bonus, bounty, or quota system whereby a premium is placed on the number of employer or client rule violations or infractions purportedly discovered as a result of any investigation made by a licensee.

X. No licensee shall use a fictitious business name in connection with the official activities of the licensee’s business, except as provided by the department.

357-H:16 Firearm Qualification. Every licensee and qualified manager who in the course of his or her employment or business carries a deadly weapon shall complete a course of training in the exercise of the powers to arrest and a course of training in the carrying and use of firearms, as determined in rules adopted under RSA 541-A by the attorney general. No licensee or qualified manager shall carry or use a firearm unless he or she has met the requirements of the rules of the attorney general and has in his or her possession a valid firearms qualification card.

357-H:17 Expiration. A private investigator license, branch office certificate, and pocket card issued under this chapter expires 2 years following the date of issuance or on the assigned renewal date.

357-H:18 License Renewal; Expired Licenses; Reinstatement.

I.(a) To renew an unexpired license or certificate, the licensee shall, on or before the date on which it would otherwise expire, apply for renewal on a form prescribed by the attorney general, and pay the renewal fee prescribed by rules adopted under RSA 541-A. On renewal, such evidence of renewal of the license or certificate as the attorney general may prescribe shall be issued to the licensee.

(b) A license or certificate shall not be renewed until any and all fines assessed and not resolved in accordance with the provisions of that section have been paid.

II. An expired license or branch office certificate may be renewed at any time within 3 years after its expiration on filing of application for renewal on a form prescribed by the attorney general, and payment of the renewal fee in effect on the last preceding regular renewal date. If the license or certificate is renewed more than 30 days after its expiration, the licensee, as a condition precedent to renewal, shall also pay a late fee. Renewal under this section shall be effective on the date on which the application is filed, on the date on which the renewal fee is paid, or on the date on which the late fee, if any, is paid, whichever last occurs. Renewal of a license or certificate shall not prohibit the bringing of disciplinary proceedings for an act committed before the effective date of the renewal.

III. A suspended license or branch office certificate is subject to expiration and shall be renewed as provided in this section, but renewal of the license does not entitle the licensee, while the license remains suspended and until it is reinstated, to engage in the licensed activity, or in any other activity, or in any other activity or conduct in violation of the order or judgment by which the license was suspended, and renewal of the branch office certificate does not entitle the licensee, while the certificate remains suspended, and until it is reinstated, to engage in the licensed activity at the location for which the certificate was issued, or to engage in any other activity or conduct in violation of the order or judgment by which the certificate was suspended.

IV. A revoked license or branch office certificate is subject to expiration as provided in this chapter, but it may not be renewed. If it is reinstated after its expiration, the licensee, as a condition precedent to its reinstatement, shall pay a reinstatement fee in an amount equal to the renewal fee in effect on the last regular renewal date before the date on which it is reinstated, plus a late fee, if any, accrued at the time of its revocation.

V. A license or branch office certificate which is not renewed within 3 years after its expiration may not be renewed, restored, reinstated, or reissued thereafter. The holder of the license or certificate may obtain a new license or certificate only on compliance with all of the provisions of this chapter relating to the issuance of an original license or certificate.

357-H:19 License Suspension; Revocation; Misconduct.

I. The attorney general may deny, suspend, or revoke a license issued under this chapter if he or she determines that the licensee or his or her manager, if an individual, or if the licensee is a person other than an individual, that any of its officers, partners, or its manager, has:

(a) Made any false statement or given any false information in connection with an application for a license or a renewal or reinstatement of a license.

(b) Violated any provisions of this chapter.

(c) Violated any rule of the attorney general adopted pursuant to the authority contained in this chapter.

(d) Have no record, in any jurisdiction, of misdemeanors for theft, fraud, perjury, assaults, drug offenses, or sex crimes, domestic violence related crimes, stalking or of any felony convictions, or illegally using, carrying, or possessing a deadly weapon.

(e) Impersonated, or permitted or aided and abetted an employee to impersonate a law enforcement officer or employee of the United States of America, or of any state or political subdivision thereof.

(f) Committed or permitted any employee to commit any act, while the license was expired which would be cause for the suspension or revocation of a license, or grounds for the denial of an application for a license.

(g) Willfully failed or refused to render to a client services or a report as agreed between the parties and for which compensation has been paid or tendered in accordance with the agreement of the parties.

(h) Committed assault, battery, or kidnapping, or using force or violence on any person, without proper justification.

(i) Knowingly violated, or advised, encouraged, or assisted the violation of any court order or injunction in the course of business as a licensee.

(j) Acted as a runner or capper for any attorney.

(k) Committed any act which is a ground for denial of an application for a license under this chapter.

(l) Committed any act prohibited by RSA 570-A.

(m) Purchased, possessed, or transported any tear gas weapon except as authorized by law. A violation of this subparagraph may be punished by the suspension of a license for a period to be determined by the attorney general.

II. The attorney general may suspend or revoke a license issued under this chapter if he or she determines that the licensee or his or her manager, if an individual, or if the licensee is a person other than an individual, that any of its officers, partners, or its manager, has:

(a) Used any letterhead, advertisement, or other printed matter, or in any manner whatever represented that he or she is an instrumentality of the federal government, a state, or any political subdivision thereof.

(b) Used a name different from that under which he or she is currently licensed in any advertisement, solicitation, or contract for business.

III. The attorney general may suspend or revoke a license issued under this chapter if he or she determines that the licensee or his or her manager, if an individual, or if the licensee is a person other than an individual, that any of its officers, partners, or its manager, has committed any act in the course of the licensee’s business constituting dishonesty or fraud. “Dishonesty or fraud” as used in this section, includes, in addition to other acts not specifically enumerated herein:

(a) Knowingly making a false statement relating to evidence or information obtained in the course of employment, or knowingly publishing a slander or a libel in the course of business.

(b) Using illegal means in the collection or attempted collection of a debt or obligation.

(c) Manufacture of evidence.

(d) Acceptance of employment adverse to a client or former client relating to a matter with respect to which the licensee has obtained confidential information by reason of or in the course of his or her employment by the client or former client.

IV. The record of conviction, or a certified copy thereof, shall be conclusive evidence of the conviction as that term is used in this chapter. A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction within the meaning of this chapter. The attorney general may order the license suspended or revoked, or may decline to issue a license, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence.

V. The attorney general, in lieu of suspending or revoking a license issued under this chapter, may impose a civil penalty not to exceed $500 upon a licensee, if the attorney general determines that this action better serves the purposes of this chapter.

VI. Any person who knowingly falsifies the fingerprints or photographs submitted pursuant to any provision of this chapter is guilty of a felony. Any person who violates any of the other provisions of this chapter is guilty of a misdemeanor punishable by a fine not to exceed $1,000 or by imprisonment not to exceed one year, or both.

357-H:20 Administrative Fine Authority.

I. If, upon investigation, the attorney general determines a licensee, including a corporation, or registrant is in violation of this chapter, the attorney general may issue a citation to the licensee or registrant. The citation shall be in writing and shall describe with particularity the nature of the violation, including specific reference to the provision of law determined to have been violated. If the attorney general deems it appropriate, the citation may contain an order of abatement fixing a reasonable time for abatement of the violation and may contain an assessment of an administrative fine. The amount of the fine shall in no event exceed $1,000 or as otherwise provided in this chapter, whichever is less.

II. The attorney general may assess administrative fines against any licensee, registrant, or firearms qualification cardholder for failure to notify the department within 30 days of any change of residence or business address. The principal place of business may be at a home or at a business address, but it shall be the place at which the licensee maintains a permanent office.

357-H:21 Rulemaking. The attorney general shall adopt rules under RSA 541-A concerning the following:

I. The application process for licensure, renewal of licensure, and reinstatement of license.

II. The content of all application forms.

III. Fees for licensure, renewal, and reinstatement of license. Fees shall produce revenues at 125 percent of costs of the department in administering this chapter.

IV. The ethical standards and standards of practice for persons licensed under this chapter.

V. Procedures for conducting investigations and hearings conducted by the board under this chapter.

VI. Procedures for processing complaints, including informal resolution or referral of complaints, and addressing disciplinary issues handled by the board under this chapter, including the issuance of appropriate penalties or sanctions.

2 New Paragraph; Attorney General; Duties. Amend RSA 21-M:5 by inserting after paragraph VI the following new paragraph:

VII. Regulate the practice of private investigators and administer the provisions of RSA 357-H.

3 Reference to Detective Agencies Removed. Amend RSA 21-P:7, I(d) to read as follows:

(d) Regulation of [detective agencies and] security services under RSA 106-F.

4 Detective Agency License Reference Removed. Amend RSA 21-P:14, II(d) to read as follows:

(d) Licensing [detective agencies and] security guard services, as authorized by RSA 106-F:3.

5 Chapter Heading Changed. Amend the chapter heading preceding RSA 106-F to read as follows:

CHAPTER 106-F

[DETECTIVE AGENCIES AND] SECURITY SERVICES

6 Definitions. Amend RSA 106-F:4, IV through VII to read as follows:

IV. “Employee” means an individual employed by a [private detective agency or an individual employed by a] security guard service performing the duties of a [private detective or a] security guard for the said [private detective agency or] security guard service.

V. “Licensee” means a licensed [private detective agency or] security guard service.

VI. “License holder” means an employee of a licensee.

VII. “Individual” means an individual licensed as a [private detective or] security guard who is not an employee and who has no employees.

7 Detective License References. Amend RSA 106-F:6, VI and VII to read as follows:

VI. In the case of an applicant for an armed security guard [or armed private detective license], 2 sets of the applicant’s fingerprints taken at state police headquarters.

VII. Two photographs of the applicant taken at state police headquarters to be used for a photo license card issued by the commissioner of safety identifying the [private detective or] security guard holder and by whom he or she is employed.

8 Detective License Reference. Amend RSA 106-F:7, I to read as follows:

I. Following review of the application, the applicant’s references, and investigation into the character, competency and integrity of the applicant, the commissioner shall as soon as practicable issue a license or renewal license in the form prescribed by him or her to the applicant, or notify the applicant of denial of the application. Prior to approval of any armed [detective or] security license issued under this chapter, the applicant shall submit to a fingerprint examination conducted by the Federal Bureau of Investigation, and the department of safety shall be authorized to use the records of the Federal Bureau of Investigation in the screening of applicants. The applicant shall be responsible for the cost of any background investigation or criminal records check required under this section.

9 Detective Fee. Amend RSA 106-F:8, I to read as follows:

I. The fee for a [private detective agency license or a] security guard service license shall be $100 for [an agency or] a service employing one person licensed under this chapter and $400 for [an agency or] a service employing more than one such person. [A person may hold one or more types of license at any given time, provided that a separate fee shall be paid for each license so held.] Licenses shall be valid for 2 years after the date of issue and shall be renewed every 2 years thereafter, upon application and payment of the fee and submission of certified evidence that the surety bond remains in force. The application for renewal shall be submitted at least 15 days before the expiration of the previously granted license.

10 Repeal. The following are repealed:

I. RSA 106-F:4, I-b and II, relative to the definitions of private detective and private detective agency.

II. RSA 106-F:6, VIII, relative to detective license application.

11 Effective Date. This act shall take effect January 1, 2009.

LBAO

08-2352

Revised 01/23/08

SB 305 FISCAL NOTE

AN ACT relative to the regulation of private investigators.

FISCAL IMPACT:

The Department of Justice determined this bill will increase state general fund revenue and expenditures by an indeterminable amount in FY 2009 and each year thereafter. The Department of Safety determined this bill will decrease state general fund revenue by $15,000 in FY 2009 and $30,000 in FY 2010 and each fiscal year thereafter, and decrease state restricted expenditures by an indeterminable amount in FY 2009 and each fiscal year thereafter. There will be no fiscal impact on county and local revenue and expenditures.

METHODOLOGY:

The Department of Justice stated this bill establishes the regulation of private investigators by the Department and would require the Attorney General to administer and enforce the provisions of the bill. The bill requires the promulgation of rules on licensing, fees, ethical standards, procedures for conducting investigations and hearings and procedures for processing complaints. The Department estimates this will require approximately 500 hours of attorney time. Costs will be incurred based on the number of administrative and criminal enforcement actions that would arise and instances when an appeal of either administrative or criminal action would be taken to the New Hampshire Supreme Court. The Department assumes these costs will be paid for out of revenues collected at 125% of costs however they are unable to estimate the costs. The bill further requires the Department to enforce provisions of the new chapter and authorizes the Department to appoint and fix the compensation of such inspectors, investigators and other personnel as may be necessary. The Department estimates enforcement duties would require a full time investigator, approximately 25% of an assistant attorney general, and 15% of a paralegal and assumes they will be paid for out of the general fund. The Department estimates enforcement costs as displayed below and assumes an effective date of January 1, 2009.

 

FY 2009

FY 2010

FY 2011

FY 2012

Salary and Benefits

$77,742

$111,473

$117,123

$122,834

Equipment

$7,400

$0

$0

$0

Total

$85,142

$111,473

$117,123

$122,834

The Department of Safety states this bill moves the responsibility for licensing of private detectives from the Department of Safety to the Department of Justice. The Department of Safety states it currently collects approximately $30,000 in general fund revenue annually from approximately 100 licensed individuals and agencies. Since the effective date of this bill is January 1, 2009, the Department states general fund revenue will decrease by $15,000 in FY 2009 and $30,000 in FY 2010 and each fiscal year thereafter. The Department further states restricted expenditures related to private detective licensing will decrease by an indeterminable amount. Costs related to private detective licensing are charged to the criminal records fund established by RSA 106-B:7, II.