October 9, 2007, Introduced by Reps. Farrah and Accavitti and referred to the Committee on Regulatory Reform.
A bill to amend 1965 PA 285, entitled
"Private detective license act,"
by amending the title and sections 1, 2, 3, 4, 5, 6, 7, 8, 10, 14,
16, 17, 19, 20, 22, 24, 27, and 29 (MCL 338.821, 338.822, 338.823,
338.824, 338.825, 338.826, 338.827, 338.828, 338.830, 338.834,
338.836, 338.837, 338.839, 338.840, 338.842, 338.844, 338.847, and
338.849), sections 1, 2, 3, 4, 5, 6, 7, 10, 14, 16, 17, 20, 22, 24,
and 27 as amended by 2002 PA 474.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An
act to license and regulate private detectives and
professional investigators; to provide for certain powers and
duties for certain state agencies and local officials; to provide
for the imposition for certain fees; to protect the general public
against unauthorized, unlicensed and unethical operations by
private
detectives and private professional
investigators; to
provide for immunity for certain persons under certain
circumstances; to provide for penalties and remedies; and to repeal
acts and parts of acts.
Sec. 1. This act shall be known and may be cited as the
"private
detective license "professional
investigator licensure
act".
Sec. 2. As used in this act:
(a) "Certified public accountant" means a person licensed as a
certified public accountant under article 7 of the occupational
code, 1980 PA 299, MCL 339.720 to 339.736.
(b) "Computer forensics" means the collection, investigation,
analysis, and scientific examination of data held on, or retrieved
from, computers, computer networks, computer storage media,
electronic devices, electronic storage media, or electronic
networks, or any combination thereof.
(c) (a)
"Department" means the Michigan department of consumer
and
industry services labor and
economic growth.
(b)
"Private detective" or "private investigator" means a
person,
other than an insurance adjuster who is on salary and
employed
by an insurance company or other than a professional
engineer,
who, for a fee, reward, or other consideration, engages
in
business or accepts employment to furnish, or subcontracts or
agrees
to make, or makes an investigation for the purpose of
obtaining
information with reference to any of the following:
(i) Crimes or wrongs done or threatened against the
United
States
or a state or territory of the United States.
(ii) The identity, habits, conduct, business, occupation,
honesty,
integrity, credibility, trustworthiness, efficiency,
loyalty,
activity, movement, whereabouts, affiliations,
associations,
transactions, acts, reputation, or character of a
person.
(iii) The location, disposition, or recovery of lost or
stolen
property.
(iv) The cause or responsibility for fires, libels,
losses,
accidents,
or damage or injury to persons or property.
(v) Securing evidence to be used before a court,
board,
officer,
or investigating committee.
(d) (c)
"Insurance adjuster"
means a person other than a
private
detective or private professional
investigator who, for a
consideration, engages in the activities described in subdivision
(b)
(e) in the course of adjusting or otherwise
participating in
the disposal of claims under or in connection with a policy of
insurance.
Insurance adjuster includes a any
of the following:
(i) A person who is employed on a salary basis by an insurance
company. ;
a
(ii) A person, firm, partnership, company, limited liability
company, or corporation who acts for insurance companies solely in
the
capacity of a claim adjuster , a and who does not perform
investigative services including, but not limited to, surveillance
activities.
(iii) A person, firm, partnership, company, limited liability
company, or corporation engaged in the business of public adjuster
acting for claimants in securing adjustments of claims against
insurance companies and who does not perform investigative services
including, but not limited to, surveillance activities.
(e) "Investigation business" means a business that, for a fee,
reward, or other consideration, engages in business or accepts
employment to furnish, or subcontracts or agrees to make, or makes
an investigation for the purpose of obtaining information with
reference to any of the following:
(i) Crimes or wrongs done or threatened against the United
States or a state or territory of the United States, or any other
person or legal entity.
(ii) The identity, habits, conduct, business, occupation,
honesty, integrity, credibility, trustworthiness, efficiency,
loyalty, activity, movement, whereabouts, affiliations,
associations, transactions, acts, reputation, or character of a
person.
(iii) The location, disposition, or recovery of lost or stolen
property.
(iv) The cause or responsibility for fires, libels, losses,
accidents, or damage or injury to persons or property.
(v) Securing evidence to be used before a court, board,
officer, or investigating committee.
(vi) The prevention, detection, and removal of surreptitiously
installed devices designed for eavesdropping or observation, or
both.
(vii) The electronic tracking of the location of an individual
or motor vehicle for purposes of detection or investigation.
(viii) Computer forensics to be used as evidence before a court,
board, officer, or investigating committee.
(f) (d)
"Licensee" means a person
licensed under this act.
(g)
(e) "Professional engineer" means a person
licensed under
article 20 of the occupational code, 1980 PA 299, MCL 339.2001 to
339.2014, as a professional engineer.
(h) "Professional investigator" means a person who, for a fee,
reward, or other consideration, engages in the investigation
business.
Sec. 3. (1) A person, firm, partnership, company, limited
liability company, or corporation shall not engage in the business
of
private detective or professional
investigator for hire, fee, or
reward, and shall not advertise his or her business to be that of
detective
professional investigator or of a detective professional
investigator agency without first obtaining a license from the
department.
(2) A person, firm, partnership, company, limited
liability company, or corporation shall not engage in the business
of furnishing or supplying, for hire and reward, information as to
the personal character of any person or firm, or as to the
character or kind of business and occupation of any person, firm,
partnership, company, limited liability company, or corporation and
shall not own, conduct, or maintain a bureau or agency for the
purposes described in this subsection except as to the financial
rating of persons, firms, partnerships, companies, limited
liability companies, or corporations without having first obtained
a license as a professional investigator from the department.
(2) The department, the attorney general, the Michigan state
police, or a local law enforcement agency, on its own initiative or
at the request of any other person or legal entity, may investigate
allegations of a person or legal entity engaging in activities
regulated under this act without being appropriately licensed or
exempt from licensure under this act. The entity conducting the
investigation shall report its findings to the attorney general and
county prosecuting attorney having jurisdiction in the location
within which the alleged violator is engaged in business. The
attorney general or county prosecuting attorney shall bring an
appropriate civil or criminal action in a court of competent
jurisdiction to enjoin any person or legal entity that has engaged
or is about to engage in any activity regulated by this act without
being appropriately licensed or exempt from licensure under this
act. Such an injunction may be issued without proof of actual
damage sustained by any person or legal entity. Issuance of an
injunction shall not prevent criminal prosecution of a violator. In
addition to issuing the injunction, the court may impose a civil
violation fine not to exceed $25,000.00. A person or other legal
entity who reports to the department, a local law enforcement
agency, a county prosecuting attorney, or the attorney general
regarding an allegation of unlicensed activity is immune from tort
liability for making the report.
(3) A person violating this section is guilty of a felony
punishable by imprisonment for not more than 4 years or by a penal
fine of not more than $5,000.00, or both.
Sec. 4. This act does not apply to any of the following:
(a) A person employed exclusively and regularly by an employer
in connection with the affairs of the employer only and there
exists a bona fide employer-employee relationship for which the
employee is reimbursed on a salary basis.
(b) An officer or employee of the United States, this state,
or a political subdivision of this state while that officer or
employee is engaged in the performance of his or her official
duties except that such officer or employee does not include a
professional investigator hired or employed under contract by a
political subdivision.
(c) The business of obtaining and furnishing information as to
the financial standing, rating, and credit responsibility of
persons or as to the personal habits and financial responsibility
of applicants for insurance, indemnity bonds, or commercial credit.
(d) A charitable philanthropic society or association duly
incorporated under the laws of this state that is organized and
maintained for the public good and not for private profit.
(e)
An attorney at law admitted
to practice in this state in
performing
his or her duties as such an
attorney at law.
(f) A collection agency or finance company licensed to do
business under the laws of this state or any employee of a
collection agency or finance company while acting within the scope
of his or her employment when making an investigation incidental to
the business of the agency, including an investigation of the
location of the debtor or his or her assets and property in which
the client has an interest or upon which the client has a lien.
(g) An insurance adjuster who is employed on a salary basis by
an insurance company or a person, firm, partnership, company,
limited liability company, or corporation that acts for an
insurance company solely in the capacity of claim adjuster. A
person, firm, partnership, company, limited liability company, or
corporation engaged in the business of public adjuster acting for
claimants in securing adjustments of claims against insurance
companies and who does not perform investigative services
including, but not limited to, surveillance activities.
(h) A professional engineer acting within the scope of his or
her licensed professional practice who does not perform
investigative services, including, but not limited to, surveillance
activities or other activities outside of the scope of his or her
licensed professional practice.
(i) A certified public accountant acting within the scope of
his or her licensed professional practice who does not perform
investigative services, including, but not limited to, surveillance
activities or other activities outside of the scope of his or her
licensed professional practice.
Sec. 5. (1) The department, upon application and after making
a determination that the applicant is qualified, shall issue the
applicant
a license to conduct business as a private detective or
private
professional investigator for a period of 3 years from date
of issuance.
(2) Upon the issuance of a license under this act to conduct
business
as a private detective or private professional
investigator, the applicant is not required to obtain any other
license from any municipality or political subdivision of this
state.
Sec. 6. (1) The department shall issue a license to conduct
business
as a private detective or private professional
investigator if satisfied that the applicant is a person, or if a
firm, partnership, company, limited liability company, or
corporation, the sole or principal license holder is a person who
meets all of the following qualifications:
(a) Is a citizen of the United States.
(b) Is not less than 25 years of age.
(c) Has a high school education or its equivalent.
(d) Has not been convicted of a felony, or a misdemeanor
involving any of the following:
(i) Dishonesty or fraud.
(ii) Unauthorized divulging or selling of information or
evidence.
(iii) Impersonation of a law enforcement officer or employee of
the United States or a state, or a political subdivision of the
United States or a state.
(iv) Illegally using, carrying, or possessing a dangerous
weapon.
(v) Two or more alcohol related offenses.
(vi) Controlled substances under the public health code, 1978
PA 368, MCL 333.1101 to 333.25211.
(vii) An assault.
(e) Has not been dishonorably discharged from a branch of the
United States military service.
(f) For a period of not less than 3 years has been or is any
of the following on a full-time basis:
(i) Lawfully engaged in the private detective
business on his
or
her own account professional
investigation business as a
licensee, registrant, or investigative employee in another state.
(ii) Lawfully engaged in the private detective investigation
business as an investigative employee of the holder of a
certificate
of authority license to conduct a detective
professional investigation agency.
(iii) An investigator, detective, special agent, intelligence
specialist, parole agent, probation officer, or certified police
officer
of a city, county, or state government or of the United
States
government employed by any
government executive, military,
judicial, or legislative agency, or other public authority engaged
in investigative or intelligence activities. This subdivision does
not include individuals employed by educational or charitable
institutions who are solely engaged in academic, consulting,
educational, instructional, or research activities. In the case of
the experience requirement under this subparagraph for an applicant
demonstrating experience as a probation officer or parole agent,
the department shall consider any application filed on or after
January 1, 2005 for eligibility regarding that experience.
(iv) A graduate of an accredited institution of higher
education with a baccalaureate or postgraduate degree in the field
of police administration, security management, investigation, law,
or
criminal justice. from an accredited university or college
acceptable
to the department.
(v) Lawfully engaged in the investigation business as a full-
time proprietary or in-house investigator employed by a business or
attorney, or as an investigative reporter employed by a recognized
media outlet, acceptable to the department. This subdivision does
not include individuals employed by educational or charitable
institutions who are solely engaged in academic, consulting,
educational, instructional, or research activities.
(g) Has posted with the department a bond or insurance policy
provided for in this act.
(2) In the case of a person, firm, partnership, company,
limited liability company, or corporation now doing or seeking to
do
business in this state, the resident manager shall comply with
the qualifications of this section.
(3)
A person regulated as a private detective or private
investigator
in another state having a reciprocal agreement with
this
state may engage in activities regulated by this act without
being
licensed for the limited purpose and for a limited amount of
time
as necessary to continue an ongoing investigation originating
in
that state. Beginning January
1, 2008, a law enforcement
officer, as that term is defined in section 2 of the commission on
law enforcement standards act, 1965 PA 203, MCL 28.602, or an
individual engaged in law enforcement on behalf of the federal
government, another state, a territory, or another country, shall
not be issued any new or renewal license or be employed by, or
authorized to operate in any capacity as, a professional
investigator in the state of Michigan. This subsection does not
apply to any of the following:
(a) An individual who holds a volunteer civil defense or
emergency services position and acts in a law enforcement or police
capacity solely as part of his or her volunteer duties.
(b) A member of the national guard or reserve armed forces of
the United States who acts in a law enforcement or police capacity
solely as part of his or her military duties.
(c) An individual authorized to act with, use, or employ
police or other official powers in the case of an emergency or
disaster and only for the immediate time of the emergency or
disaster.
(d) A licensed or regulated professional investigator or
private security business and its employees who have special police
powers that are authorized by law and are limited to those duties
performed in their licensed or regulated capacity.
(e) An individual deputized or empowered by a governmental
entity solely for the purpose of serving civil process.
(4) This act does not prevent a licensee from acting as a
private
detective or private professional
investigator outside of
this state to the extent allowed by that other state under the laws
of that state.
(5) The department may enter into reciprocal agreements with
other states that have professional investigator qualification laws
to allow a professional investigator license or registration to be
used by that licensee or registrant within the jurisdiction of
either this state or another state. The reciprocal agreement shall
be limited to only allow professional investigators to continue
investigations that originate in the investigator's home state and
that require investigation in another state. The department shall
enter into a reciprocal agreement if the other state meets all of
the following conditions:
(a) Issues a professional investigator identification card
with an expiration date printed on the card.
(b) Is available to verify the license or registration status
for law enforcement purposes.
(c) Has disqualification, suspension, and revocation standards
for licenses and registrations.
(d) Requires the applicant for a license or registration as a
professional investigator to submit to a criminal history records
check pursuant to applicable state and federal law.
(6) Each reciprocal agreement shall, at a minimum, include the
following provisions:
(a) A requirement that the professional investigator possess a
professional investigator license or registration in good standing
from his or her home state.
(b) A requirement that the professional investigator shall be
time-limited to a maximum of 30 days per case while conducting an
investigation in this state, or a lesser amount of time if required
to comply with the reciprocity statutes or regulations of the other
state.
(c) A requirement that the professional investigator from the
other state not solicit any business in this state while conducting
investigations in this state.
Sec. 7. (1) The department shall prepare a standard uniform
application. The applicant shall obtain notarized reference
statements from at least 5 reputable citizens who swear that they
have known the applicant and his or her qualifications for a period
of at least 5 years and believe that the applicant is honest, of
good character, and competent. The individual providing the
reference shall not be related or connected to the person so
certifying by blood or marriage.
(2) Upon receipt of the application, application processing
fee, and license fee as described in section 9, the department
shall investigate as to the applicant's qualifications for
licensure.
(3)
The application and investigation are not considered
complete
until the applicant has received the approval of the
prosecuting
attorney and the sheriff of the county within which the
principal
office of the applicant is to be located. If the office
is
to be located in a city, township, or village, the approval of
the
chief of police may be obtained instead of the sheriff.
Sec. 8. If the applicant is a corporation, the application
shall be signed and verified by the president, secretary and
treasurer thereof, and shall specify the name of the corporation,
the date and place of its incorporation, the location of its
principal place of business, and the name of the city, town or
village, stating the street and number, and such other description
as will indicate the location of the bureau, agency, subagency,
office
or branch office for which the license is desired, the
amount
of the corporation's outstanding paid up capital and stock,
and
whether paid in cash or property, and if in property, the
nature
of the same, and shall be
accompanied by a duly certified
copy of a certificate of incorporation.
Sec. 10. (1) The department may suspend or revoke a license
issued under this act if the department determines that the
licensee or licensee's manager, if an individual, or if the
licensee is a person other than an individual, that an officer,
director, partner, or its manager, has done any of the following:
(a) Made false statements or given false information in
connection with an application for a license or a renewal or
reinstatement of a license.
(b) Violated this act or any rule promulgated under this act.
(c) Been convicted of a felony or misdemeanor involving
dishonesty or fraud, unauthorized divulging or selling of
information or evidence.
(d) Been convicted of impersonation of a law enforcement
officer or employee of the United States or a state, or a political
subdivision of the United States or a state.
(e) Been convicted of illegally using, carrying, or possessing
a dangerous weapon.
(2) In addition to the suspension or revocation provisions
available to the department under subsection (1), the department
may do 1 or more of the following regarding a licensee or a
licensee's manager, if an individual, or if the licensee is a
person other than an individual, an officer, director, partner,
member, or its manager, who violates this act or a rule or order
promulgated or issued under this act:
(a) Place a limitation on a license.
(b) Deny a renewal of a license.
(c) Issue an order of censure.
(d) Issue an order of probation.
(e) Impose a requirement that restitution be made.
(3) (2)
Upon notification from the department
of the
suspension or revocation of the license, the licensee, within 24
hours, shall surrender to the department the license and his or her
identification card. Failure to surrender the license in compliance
with this subsection is a misdemeanor.
Sec. 14. (1) Upon issuing a license, the department shall also
issue an identification card to the principal license holder or, if
the agency is a partnership, to each partner or, if the license
holder is a corporation or limited liability company, to each
resident officer, manager, or member.
(2) The identification card issued under subsection (1) shall
be in such form and contain such information as may be prescribed
by the department and is recallable by the department for the same
reasons as the license.
(3) The department shall only issue 1 identification card for
each person entitled to receive it. The licensee is responsible for
the maintenance, custody, and control of the identification card
and shall not lease, loan, sell, or otherwise permit unauthorized
persons
or employees to use it. This subsection shall does not
be
construed
to prevent each agency from issuing
its own
identification cards, if approved as to form and content by the
department,
to their its respective employees. The individual
identification card shall not bear the seal of the state or the
designation
of private detective or private professional
investigator, but the identification card may designate the
employee as an investigator or operator and may state that the
person is employed by a licensee of the department and the state of
Michigan.
(4) Upon proper application and for sufficient reasons shown,
the department may issue duplicates of the original license or
identification card.
Sec. 16. (1) A person shall not possess or display a badge or
shield that purports to indicate that the holder is a private
detective, private investigator, or professional investigator.
(2) A licensee may request authorization to provide employee
identification cards only upon the express authorization of the
department as to format and content.
(3) A person shall not display any badge, shield,
identification card, or license that might mislead the public into
thinking
that the holder is a licensed detective professional
investigator.
(4) A person who violates this section is guilty of a
misdemeanor and any unauthorized badge, shield, identification
card, or license shall be confiscated by any law enforcement
officer of the state. Each day the violation continues shall
constitute a separate offense.
Sec. 17. (1) A licensee may employ as many persons as
considered
necessary to assist in his or her work of detective
professional investigator and in the conduct of the business. At
all
times during the employment, the licensee shall be have direct
involvement in the day-to-day activities and is accountable for the
good conduct in the business of each person so employed.
(2) A licensee shall keep adequate and complete records of all
persons he or she employs, which records shall be made available to
the department upon request and to police authorities if the police
authorities offer legitimate proof for the request in connection
with a specific need.
(3) If a licensee falsely states or represents that a person
is or has been in his or her employ, the false statement or
representation shall be sufficient cause for the suspension or
revocation of the license. Any person falsely stating or
representing
that he or she is or has been a detective professional
investigator
or employed by a detective professional investigator
agency is guilty of a misdemeanor.
(4) A licensee shall not knowingly employ any person who does
not meet the requirements of this act.
(5) The licensee shall cause fingerprints to be taken of all
prospective employees, which fingerprints shall be submitted to the
department and the federal bureau of investigation for processing
and approval.
(6) The fingerprints required to be taken under subsection (5)
may be taken by a law enforcement agency or any other person
determined by the department to be qualified to take fingerprints.
The licensee shall submit a fingerprint processing fee to the
department in accordance with section 3 of 1935 PA 120, MCL 28.273,
as well as any costs imposed by the federal bureau of
investigation.
Sec.
19. Any person licensed as a private detective
professional
investigator, or in the employ of a private
detective
professional investigator agency, is not authorized to carry a
deadly weapon unless he is so licensed in accordance with the
present laws of this state.
Sec. 20. (1) Any person who is or has been an employee of a
licensee shall not divulge to anyone other than his or her employer
or former employer, or as the employer shall direct, except as he
or she may be required by law, any information acquired by him or
her during his or her employment in respect to any of the work to
which he or she shall have been assigned by the employer. Any
employee violating the provisions of this section and any employee
who willfully makes a false report to his or her employer in
respect to any work is guilty of a misdemeanor.
(2) Any principal, manager, or employee of a licensee who
willfully furnishes false information to clients, or who willfully
sells, divulges, or otherwise discloses to other than clients,
except as may be required by law, any information acquired during
employment by the client is guilty of a misdemeanor and is subject
to summary suspension of license and revocation of license upon
satisfactory proof of the offense to the department. Any
communications, oral or written, furnished by a professional or
client to a licensee, or any information secured in connection with
an assignment for a client, is considered privileged with the same
authority and dignity as are other privileged communications
recognized by the courts of this state.
(3) Suspension, revocation, denial, or other action against a
licensee or applicant for a license as described in section 10
shall be accompanied by notice and an opportunity for a hearing
under the administrative procedures act of 1969, 1969 PA 306, MCL
24.201 to 24.328.
Sec. 22. (1) An advertisement by a licensee soliciting or
advertising for business shall contain his or her name and address
as they appear in the records of the department.
(2) A licensee shall, on notice from the department,
discontinue any advertising or the use of any advertisement, seal,
or card, that the department determines to be misleading to the
public. Failure to comply with such an order is cause for
suspension or revocation of the license.
(3) Unless licensed under this act, a person shall not
advertise
his or her business to be that of a private detective
professional investigator regardless of the name or title actually
used.
Sec. 24. (1) Each person, partnership, firm, company, limited
liability company, or corporation licensed and operating under this
act shall make a complete written record of the business
transactions and reports made in connection with the operation of
the agency.
(2)
A detective or detective professional
investigator agency
that receives or generates a written or electronic report shall
keep
the report on file in the office of the detective or agency
professional investigator for at least 2 years unless the file is
returned to the client or agent.
Sec. 27. (1) Upon the death of a licensee, the business of the
decedent may be carried on for a period of 90 days by any of the
following:
(a) In the case of an individual licensee, the surviving
spouse, or if there is none, the personal representative of the
estate of the decedent.
(b) In the case of a partner, the surviving partners.
(c) In case of an officer of a firm, company, association,
limited liability company, or corporation, the officers.
(2) Within 10 days following the death of a licensee, the
department shall be notified by a person described in subsection
(1) in writing. The notification shall state the name of the person
legally authorized to carry on the business of the deceased.
(3) Upon the authorization of the department, the business may
be carried on for a further period of time when necessary to
complete any investigation or assist in any litigation pending at
the death of the decedent.
(4) This section does not authorize the solicitation or
acceptance of any business after the death of the decedent except
as otherwise provided by this act.
(5) This section shall not be construed to restrict the sale
of
a private detective professional
investigator business if the
vendee qualifies for a license under the provisions of this act.
Sec. 29. The requirements of this act as to license
applications
shall apply to all private detectives professional
investigators, except private detectives those who
already have
been granted a license under prior laws of this state. The
requirements as to renewal of license certificates shall apply to
all
private detectives professional
investigators licensed under
this act or any prior law of this state.