State lines and PI: to cross or not to cross
State lines 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?
The 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 like that… 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 of the subject. However, we are looking for facts and laws, 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 to 90 minutes. Many residents live here and work across the border. Crossing state lines is a big issue here at Granite State.
What do you do on surveillance when the subject crosses the border? Difficult call. Steve Byers, my good friend and mentor, feels this is like following a theme in a members-only club like the American Legion. Surveillance stops at the gate. You have no legal right to enter. The client must be happy with the results and your professionalism. you did not pass
Steve feels the same concept applies when 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’re just passing through and don’t 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 IP that crossing the line and having a “conversation” with a witness was not an investigation, but if you “interviewed” the witness, you were “investigating.” He would explain this further, but I don’t quite get it.
There are several possible scenarios: 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 a witness lives across the border? Or the witness lives in NH but his wife tells her that he is at work, in a border state, nearby. He has time to see you today. You go?
There are endless opinions and possible solutions. I interact with many PIs 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?
DISCUSSION
Some interesting facts can be found in American Law Reports, 93 ALR 2nd.
According to this compendium of cases, the licensee who performs a single act, or isolated transactions, in a foreign State,not be considered to be engaged in that occupation, within the scope of the law that requires a license for that occupation.
The courts examine intention engage in these activities with any permanence: in other words, offer to contract or “do business” in the foreign state.
A foreign (out-of-state) corporation/individual, doing a single isolated business act, with no purpose of doing any other act there, does not fall within the provisions of a statute that requires foreign companies to comply with specific conditions before be allowed to do business within the state.
“Doing business” is carrying on any particular occupation or profession.
According to data from 93 ALR 2º: before a single or a few isolated operations, the Court, in fact, determines the individual’s intent. This appears to be to differentiate the intent to complete a task from the intent to “do business” or attempt to do business in the foreign state.
STATE BY STATE
the Department of Security in New Hampshire has stated that one must have a license in New Hampshire, period, to enter the state in 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 show jurisdiction in Iowa include, but are not limited to, the following:
(1) A private investigation business 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 this type of scenario, having to cross a state line to complete an assignment. They assured me, in their letter, that each case would be independently reviewed by the Board. The board believes it would be best “for an investigator to meet our licensing requirements before such an occurrence occurs.”
Vermont states that you must obtain a transitory 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 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 answer the question. They provided me with a copy of their licensing law, but did not address the issue directly.
Connecticut also did not answer the question, stating that they cannot provide legal advice and recommended that I read their laws…which do not address the issue. If you need to go to Ct. don’t bother calling, i guess.
INDIVIDUAL EXPERIENCES
An NH licensed investigator ended up in Vermont on a W/C case, after unexpectedly following the claimant from Claremont, NH. He tapped the claimant involved in very strenuous activity in Vermont. The case ended up in court and the question of its legality was challenged by the plaintiff’s lawyer. The judge ruled IT WAS lawful due to the circumstances. The investigator was: Hired in NH, by an NH attorney, to keep an eye on someone whose legal address was in NH. There was no way for the investigator to know that the claimant had purchased land in VT and was digging to begin building a home. The IP 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 the type of person who “follows the rules”, but he ran afoul of the licensing authorities and prevailed.
It was a mess dealing with the Florida authorities, mostly ex-cops from the Florida Division of Licensing, Jim told me.
The most informed and reasonable person he met was an attorney general who agreed with his arguments and dismissed both cases, ultimately dismissing them.
In one case, a subject was followed from Massachusetts to Florida. Later, Jim tried Probate Court during his divorce. The wife had started an affair with a younger man from out of state and they met in Florida. Her attorney made a big deal out of it, in court, that Jim didn’t have a Florida license.
Jim wasn’t sure when she started where she would end up and thought (from information provided by the client) that she might go to Virginia where her supposed lover lived.
His attorney “reported” him to the Florida Department. of State and handed 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 violating Florida law at all, as he was not “operating” a business in Florida. The judge noted that Florida citizens couldn’t even find him in Florida to hire him, since he had no listings, no phone listings, 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 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. That reduced (by at least $50,000.00) the divorce settlement income received by the subject. She and her boyfriend took revenge on him, filing complaints and lawsuits against her 1,500 miles away in Florida. Jim prevailed. He was not operating a business in Florida.
The other case began at Mass. and ended up in New Jersey. A disability case valued in the millions, and a day after a plea, the guy suddenly boarded a plane and Jim’s investigator followed her to Florida. Should she have parachuted in or just abandoned the task?
They reported it when he tried a statement. He tried in Massachusetts and in New Jersey.
Both parties were upset and lost millions of dollars (if not millions) due to these investigations. So 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 Massachusetts PI IDs and couldn’t have been treated better.
According to Jim(just like the TV show):
“The main reason we prevailed was always our strong case that ‘we didn’t run a detective business in Florida.'” The judges kept coming back to that point. We do not have special police powers to do the tasks we do, the IP license is simply a business license.
The Florida judge noted that when he was a lawyer, he often went out of state to take depositions and that he was not licensed as a lawyer in the foreign state. The tasks that 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 do those same tasks and do not have a special license. The IP license is to “conduct the business of a private detective in Florida,” which the judges said we were not doing.”
If this sounds ridiculous to you, consider this: Jim’s firm was “doing business” in Massachusetts in a Massachusetts-based case. He was visiting Florida to complete the task.
CONCLUSION
While researching this article, I posted to many PI lists hoping to get a lot of responses. I have very few.
This is a problem that does not affect all of us, but it could affect many of us. If the circumstance comes to our own door, I think it is important that we are aware of the problem, the potential problems and how it is viewed by the courts and licensing authorities.
It is obvious that the courts view this differently than most licensing agents. Apparently licensing agents need to be educated and that is our task. Licensing is designed to protect the public by keeping unqualified people out of the profession, not to prevent them from crossing state lines.
Apparently, crossing the border of a state is different from “doing business” in the foreign state.
Each state has different standards for licensing. This could be a 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.