Alabama Senate Bill SB42 was introduced by Senator Marsh on March 1, 2011
SYNOPSIS:
- Currently, the practice of private investigation is not regulated or licensed by the state.
- This bill would regulate and license the practice of private investigation by private investigators.
- This bill would define terms; create the Alabama Private Investigation Board and provide for its membership, meetings, officers, powers, and duties; and would prohibit persons acting as a private investigator without a license, subject to criminal punishment as a Class A misdemeanor.
- Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.
The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.
A BILL TO BE ENTITLED AN ACT:
Relating to the regulation and the licensure of private investigators unless licensed by this act; to create the Alabama Private Investigation Board to regulate and license private investigators; to provide for the membership, terms, filling of vacancies, powers, including discipline powers, and duties of the commission; to provide for application and licensure of private investigators; to provide penalties; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. This act shall be known and may be cited as the “Alabama Private Investigators Licensing and Regulatory Act.”
Section 2. As used in this act, the following terms shall have the following meanings:
(1) FELONY. A criminal offense that is defined and punishable under the laws of this state, or an offense committed outside the State of Alabama, which if committed in this state, would be subject to punishment by death or imprisonment in an Alabama penitentiary; a crime in any other state or a crime against the United States which is designated as a felony; or an offense in any other state, territory, or country punishable by imprisonment for a term exceeding one year.
(2) PRIVATE INVESTIGATION. The investigation by a person or persons for the purpose of obtaining information with reference to any of the following matters:
a. A crime committed or threatened against the United States or any state or territory of the United States, when operating under express written authority of the governmental official responsible for authorizing such investigation.
b. The identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.
c. The credibility of witnesses or other persons giving testimony in a criminal or civil action.
d. The whereabouts of missing persons, owners of unclaimed property or escheated property, or heirs to estates.
(3) PRIVATE INVESTIGATING. The act of any individual or company engaging in the business of obtaining or furnishing information with reference to any of the following:
a. A crime committed or threatened against the United States or any state or territory of the United States.
b. The identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputations, or character of any person.
c. The location, disposition, or recovery of lost or stolen property.
d. The cause or responsibility for fires, losses, accidents, damages, or injuries to persons or to property.
(4) PRIVATE INVESTIGATOR. a. A person who performs one or more of the private investigation services or private investigating services defined and regulated by this act.
b. A person who, for consideration, advertises as providing or performing private investigation. The term does not include an informant who, on a one time or limited basis, as a result of a unique expertise, ability, or vocation, and who provides information or services while under the direction and control of a licensee of the board, that would otherwise be included in the definition of private investigation.
(5) PRIVATE INVESTIGATOR or INDIVIDUAL LICENSEE. A person who is engaged in private investigating and licensed in accordance with this act.
Section 3. No person shall hold himself or herself out to the public as a private investigator or use any term, title, or abbreviation that expresses, infers, or implies that the person is licensed as a private investigator unless the person at the time holds a valid license to practice private investigating as provided in this act. All applicants shall pass a criminal background check based on criteria established pursuant to Section 4.
Section 4. (a) There is created the Alabama Private Investigation Board. The membership of the board shall reflect the racial, gender, geographic, urban and rural, and economic diversity of the state. The board shall consist of the following members, each of whom shall be a resident of this state, appointed as follows:
(1) Three persons appointed by the Governor who shall have been principally engaged in the activities of private investigation in this state for at least five years prior to the date of their appointment. Initially, the Governor shall appoint two members for a term of two years and one member for a term of three years. Thereafter, successor members shall be appointed for terms of four years each.
(2) One person appointed by the Lieutenant Governor, who shall have been principally engaged in the activities of private investigation in this state for at least five years prior to the date of their appointment. Initially, the Lieutenant Governor shall appoint the member for two years. Thereafter, successor members shall be appointed for terms of four years.
(3) One person appointed by the Speaker of the House of Representatives who shall have been principally engaged in the activities of private investigation in this state for at least five years prior to the date of appointment. Initially, the Speaker of the House of Representatives shall appoint the members for two years. Thereafter, successor member shall be appointed for terms of four years.
(4) One person appointed by the Attorney General who shall have been principally engaged in the activities of private investigation in this state for at least five years prior to the date of appointment. Initially, the Attorney General shall appoint the member for two years. Thereafter, successor members shall be appointed for terms of four years.
(5) One person appointed by the Alabama Private Investigators Association who shall have been principally engaged in the activities of private investigation in this state for at least five years prior to the date of appointment. Initially, the Alabama Private Investigators Association shall appoint the member for two years. Thereafter, successor members shall be appointed for terms of four years.
(b) Following the initial appointments, all successor members of the board shall be appointed for a term of four years and shall serve until their successors are appointed and qualified by subscribing to the constitutional oath of office, which shall be filed with the Secretary of State.
(c) Any vacancy occurring on the board shall be filled by the appointing authority of the vacating member for the unexpired term.
(d) No member shall be appointed to succeed himself or herself for more than one full term.
(e) The appointing authority may remove a member of the board for misconduct, incompetency, or willful neglect of duty. The board may recommend to the appointing authority suggested administrative actions that may be taken against a board member for missing an excessive amount of meetings.
(f) Each member of the board shall receive a certificate of appointment from the Governor before entering upon the discharge of the duties of office.
Section 5. (a) The board is declared to be a quasi-judicial body. Absent negligence, wantonness, recklessness, or deliberate misconduct, the members or the employees of the board are granted immunity from civil liability and may not be liable for damages when acting in the performance of their duties under this act.
(b) Board members shall be defended by the Attorney General in regard to any litigation filed against them because of the performance of their duties under this act.
Section 6. At the initial meeting of the board and every four years thereafter, the members of the board shall select from among their members a chair and vice chair who shall be private investigators and who shall each have the power to do all things necessary and proper for carrying out the provisions of this act not inconsistent with this act or the laws of this state.
Section 7. (a) The board may promulgate rules necessary to implement this act and accomplish its objectives subject to the Alabama Administrative Procedure Act.
(b) The board may promulgate and establish cannons of ethics and minimum acceptable professional standards of practice for licensees within any rules that it adopts.
(c) The board shall be entitled to the services of the Attorney General in connection with the affairs of the board.
Section 8. (a) The board shall establish regular and special meetings for the purpose of transacting its business. All members of the board shall be notified of the time and place of each meeting pursuant to the Alabama Open Meeting Act.
(b) A majority of the board shall constitute a quorum at any meeting of the board.
Section 9. (a) Except as otherwise provided in this act, it shall be unlawful for any person to act as a private investigator, without first obtaining a license from the board. For prosecution purposes a violation of this act is classified as a Class A misdemeanor.
(b) All licenses issued to private investigators before the enactment of this act shall continue in effect until their expiration. Each holder of a license may thereafter obtain a renewal of the equivalent license under this act by complying with the terms and conditions for renewal prescribed in this act.
(c) Each licensee licensed in accordance with this act shall designated a physical address where his or her records are to be kept.
Section 10. An application and all information on an application for licensure as a private investigator shall be treated as confidential and shall be filed with the board on forms prescribed by the board. The application shall include all of the following information of the applicant:
(1) His or her full name.
(2) His or her date and place of birth.
(3) All residences during the immediate past five years.
(4) All employment or occupations engaged in during the immediate past five years.
(5) Three sets of classifiable fingerprints.
(6) A list of convictions and pending charges involving a felony or misdemeanor in any jurisdiction.
Section 11. (a) Each individual applicant shall meet the following criteria the he or she:
(1) Is at least 19 years of age.
(2) Is a citizen of the United States or a legally present resident alien.
(3) Has not been declared by any court of competent jurisdiction incompetent by reason of mental defect or disease unless a court of competent jurisdiction has subsequently declared the applicant competent.
(4) Has not been convicted of a crime of moral turpitude, with the board having the final determination on the interpretation of moral turpitude.
(5) Is of good moral character.
(6) Has passed an examination to be administered twice annually by the board designed to measure knowledge and competence in the investigation field.
(b) A study guide shall be provided to any applicant seeking to obtain an initial or renewal license under this act.
(c) Any investigator currently licensed in the state of Alabama shall not have to meet the initial application requirements of this act, but shall be issued a license upon application.
Section 12. (a) Upon receipt of an application for a license pursuant to this act, nonrefundable, nonprorateable, application fees shall be submitted for the following services:
(1) A request that the Alabama Bureau of Investigation compare the fingerprints submitted with the application to fingerprints filed with the Alabama Bureau of Investigation. On subsequent applications, the Alabama Bureau of Investigation, at the request of the board, shall review its criminal history files based upon the name, date of birth, sex, race, and Social Security number of an applicant whose fingerprints have previously been submitted to the bureau for any new information since the date of the fingerprint comparison, and shall furnish any information thereby derived to the board.
(2) A request to submit the fingerprints to the Federal Bureau of Investigation for a search of its files to determine whether the individuals fingerprinted have any recorded convictions.
(b) After the approval of the application by the board, the board shall issue a license in a form prescribed by the board to qualified applicants upon its receipt of a nonrefundable, nonprorateable, private investigator license fee as set by the board.
(c)(1) If an application for a license is denied, the board shall notify the applicant in writing and shall set forth the grounds for denial. If the grounds are subject to correction by the applicant, the notice shall so state and specify a reasonable period of time within which the applicant shall make the required correction.
(2) The applicant shall be allowed to submit reason for reconsideration to the board within 30 days from the date of receipt of denial.
(d) The board shall issue an 8×10 license to all licensees which must be displayed on a wall of the workplace of the licensee. This license shall be deemed property of the State of Alabama and subject to forfeiture to the state upon revocation.
Section 13. (a) The board shall issue every private investigator licensee an identification card that shall contain the following information of the licensee:
(1) Name.
(2) Photograph.
(3) Physical characteristics.
(4) Private investigators license number.
(5) Expiration date of license.
(b) An identification card, which shall be issued in a credit card size and shall be permanently laminated.
(c) The identification card shall be carried on the person of the licensee when engaged in the activities of the licensee.
Section 14. Making a false statement to the board shall be punishable by a civil penalty not to exceed one thousand dollars ($1,000) and assessment of the maximum application fee.
Section 15. Upon receipt of the application and applicable fees, the board shall conduct an investigation to determine whether the statements made in the application are true.
Section 16. (a) All licenses issued or renewed under this act shall be valid for a period of two years from the date of issuance. The board shall provide each licensee with a renewal application 60 days prior to the expiration of the license.
(b) Each application for renewal shall be reviewed for criminal convictions and civil fraud findings.
(c) An administrative monetary penalty prescribed by the board shall be assessed on any renewal application postmarked after the expiration date of the license.
(d) No renewal application may be accepted more than 30 days after the expiration date of the license or after September 30 of the calendar year.
Section 17. (a) The board may suspend, revoke, or refuse to issue or renew any license issued by it upon finding that the holder or applicant has committed any of the following acts:
(1) A violation of this act or any rule promulgated under this act.
(2) Fraud, deceit, or misrepresentation regarding an application or license.
(3) Knowingly and willfully making a material misstatement in connection with an application for a license or renewal.
(4) A conviction by a court of competent jurisdiction of a felony or a misdemeanor if the board finds that the conviction reflects unfavorably on the fitness for the license.
(5) The commission of any act which would have been cause for refusal to issue the license or registration card had it existed and been known to the board at the time of issuance.
(b) In addition to, or in lieu of, any other lawful disciplinary action under this section, the board may assess a civil penalty not exceeding two thousand dollars ($2,000) for a violation of this act.
(c) A license may be suspended for the remaining license period and renewed during any period in which the license was suspended.
Section 18. (a) No licensee or applicant shall be required to obtain any authorization, permit, or license from, or pay any other fee or post a bond in, any municipality, county, or other political subdivision of this state to engage in any activity regulated under this act.
(b) Notwithstanding subsection (a), a municipality, county, or other political subdivision of this state may impose a bona fide occupational tax on a licensee.
Section 19. The board may negotiate and enter into reciprocal agreements with the appropriate officials in other states to permit licensed investigators who meet or exceed the qualifications established in this act to operate across state lines under mutually acceptable terms.
Section 20. The board shall provide a copy of this act and any rules promulgated under this act to the following:
(1) Each licensee, every two years.
(2) Any other person, upon request, for a reasonable fee established by the board.
Section 21. The following acts when committed by an individual licensed as a private investigator in Alabama shall constitute a violation punishable as a Class A misdemeanor:
(1) To knowingly make a material misrepresentation as to the ability of the individual to perform the investigation required by a potential client in order to obtain employment.
(2) To make unsubstantiated monetary charges to a client for services not rendered or transportation not utilized.
(3) To knowingly make a false report to a client in relation to the investigation performed for a client.
(4) To continue an investigation for a client when it becomes obvious to the investigator that a successful completion of an investigation is unlikely without first advising the client and obtaining the approval of the client for continuation of the investigation.
(5) To reveal information obtained for a client during an investigation to another individual except as required by law.
(6) Persons licensed pursuant to this act are required to report any suspected instances of child abuse or neglect and must report their suspicions to local law enforcement or the Department of Human Resources, or both.
Section 22. The Administrative Procedure Act shall govern all matters and procedures respecting the hearing and judicial overview of any contested case.
Section 23. This act does not apply to the following:
(1) An employee of any business or entity that is not primarily engaged in the business of private investigations or private investigating when that employee is performing duties related to his or her employment.
(2) An investigation of the internal affairs of a private business entity investigating a current or prospective employee.
(3) An employee of any business or entity that is not primarily engaged in the business of private investigations or private investigating when that employee is working under a contract for his or her services that his or her employer signed with a third party.
(4) Any person or professional (including without limitation attorneys providing legal services) who is not primarily engaged in the business of private investigations or private investigating, but who in conjunction with his or her business or profession may occasionally perform private investigations or private investigating.
(5) Any business or entity that is not primarily engaged in the business of private investigations or private investigating.
(6) A consumer reporting agency as defined by the Federal Fair Credit Reporting Act.
Section 24. (a) There is created within the board a division of investigation that shall be its official investigative agency.
(b) Each licensee shall provide to the investigative staff all records that pertain to the exact nature of the complaint under investigation and upon issuance of a subpoena.
(c) The board or any executive director of the board may subpoena those persons or documents necessary to any investigation undertaken under this act if other means including, but not limited to, notification by return receipt registered United States mail, have not produced the desired results.
Section 25. (a) Each licensee shall complete eight hours of continuing professional education acceptable to the board in each calendar year.
(b) The board shall make every effort to ensue at least one seminar per year will be held in each congressional district of the state providing an opportunity to fulfill the continuing professional education requirements of this section, which shall include at least one hour per year on ethics.
(c) The board shall promulgate rules necessary to carry out this section.
Section 26. (a) Any person offering private investigator training must first be certified by the board. The board shall ensure that the instructors employed by the training provider possess both the experience and academic credentials to ensure that the curriculum and instruction will be beneficial to those seeking to enter the profession. In order to qualify as a certified trainer or instructor, or both, the trainer shall meet the following criteria:
(1) He or she is 19 years of age.
(2) He or she has had at least three years’ experience satisfactory to the board with an investigative company or proprietary entity or with any federal, United States Military, state, county, or municipal law enforcement agency and relating to the block of instruction.
(3) He or she is personally qualified to conduct the training required by this act and is certified by the board which shall establish standards for the instruction process.
(b) A certified trainer, in his or her discretion, may instruct personally or use a combination of personal, instruction, audio, and visual training aids.
(c) To assist in the implementation of a training program, the certified trainer may use as an assistant trainer one who meets the following requirements:
(1) He or she is 19 years of age.
(2) He or she has had at least one year of experience with an investigative company or any United States Military, state, county, or municipal law enforcement agency.
(d) A certified trainer may be an employee of a private investigative or propriety agency or, if not, employed by an agency as a company under this act.
(e) The certified trainer shall certify that he or she has successfully completed the training and shall submit the certification to the board.
(f) The training program, fees, and requirements shall be established by rules promulgated by the board.
Section 27. No action taken under this act shall preclude prosecution under any other law of this state.
Section 28. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.
Section 29. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.