State lines and PI: to cross or not to cross
State and IP lines: to cross or not to cross, that is the question. A Shakespearean enigma.
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 IP licensing would one day be accepted in other states as well. Today this is not so… or it is. keep reading
In 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 the Granite State.
What do you do in surveillance when the subject crosses the border? difficult call. Steve Byers, my good friend and mentor, feels that this is like pursuing 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 didn’t pass
Steve feels the same concept applies when crossing state lines. Stop at the border, unless you have a license 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 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.” 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 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, nearby. He has time to see you today. You go?
There are endless opinions and possible solutions. I interact with many IPs in neighboring states. I can pick up a phone and do it. But this doesn’t 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 lawyer who performs a single act, or isolated transactions, in a foreign State,No be considered to be engaged in that occupation, within the scope of the law that requires the license of 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 meet specific conditions before be allowed to do business within the state.
“Doing business” is carrying on any particular trade or profession.
According to data from 93 ALR 2nd: before a single or some isolated operations, the Court, in reality, determines the intent of the individual. This is apparently 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 the 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 these types of scenarios, having to cross a state line to finish a commission. They assured me, in their letter, that each case would be independently reviewed by the Board. The board believes that it would be better “for an investigator to meet our licensing requirements before such an occurrence occurs.”
Vermont states that you must obtain a transient 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 didn’t answer the question, stating that they can’t provide legal advice and recommending that I read their laws…which don’t address the issue. If you need to go to Ct. Don’t bother calling I guess.
INDIVIDUAL EXPERIENCES
A licensed NH investigator ended up in Vermont in a W/C case, having unexpectedly followed the claimant from Claremont, NH. He tapped on 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 I WAS legal due to the circumstances. The investigator was: Hired in NH, by an NH attorney, to monitor 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 “plays by the rules” but ran afoul of the licensing authorities and prevailed.
It was a disaster dealing with Florida authorities, mostly ex-police officers 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 dismissed both cases, eventually dismissing them.
In one case, a subject was followed from Massachusetts to Florida. Later, Jim tried the Probate Court during his divorce. The wife had started an affair with a younger man from another state and they met in Florida. Her lawyer made a big deal, in court, about Jim not having a Florida license.
Jim wasn’t sure when he 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 that worked 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, since 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 advertisements, phone lists, or 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. This reduced (by at least $50,000.00) the divorce settlement proceeds received by the subject. She and her boyfriend got back at 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 worth millions and one day after a plea, subject suddenly boarded a plane and Jim’s investigator followed her to Florida. Should she have bailed out or just given up on the task?
They reported it when he tested in a statement. He tried out in Massachusetts and in New Jersey.
Both parties were upset and lost millions of dollars (if not millions) due to these investigations. So they vengefully filed complaints with Florida authorities. Hell has no fury…
By the way, while “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 don’t have special police powers to do the things we do, the IP license is just a business license.
The Florida judge noted that when he was a lawyer, he often left the state to take depositions and that he 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 pictures in a public area, in themselves do not require a special license. Many others do those same tasks and do not have a special license. The IP license is to “run a private detective’s business in Florida,” which the judges said we weren’t 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 on many IP lists expecting to receive a large number of responses. I have very few.
This is a problem that doesn’t affect all of us, but it could affect many of us. If the circumstance comes to our own doorstep, I think it is important that we are aware of the problem, the potential problems, and how it is viewed by courts and licensing authorities.
It is obvious that the courts view this differently than most licensing agents. Licensing agents apparently need to be educated and that is our job. Licensing is designed to protect the public by keeping unqualified individuals out of the profession, not to keep them from crossing state lines.
On the surface, crossing a State border is different from “doing business” in the foreign State.
Each state has different licensing standards. 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 debates, 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.