No. 34799 (Emergency Rule): Rule R722-330. Licensing of Private Investigators

DAR File No.: 34799
Filed: 05/10/2011 02:50:09 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Based on the passage of S.B. 177, 2011 General Legislative Session, which made substantial changes to the Private Investigator Act, this emergency rule is necessary to avoid conflicts between new statute and language in current rule. (DAR NOTE: S.B. 177 (2011) was effective 05/10/2011.)

Summary of the rule or change:

This emergency rule provides procedures that are consistent with the new statute.

Emergency rule reason and justification:

Regular rulemaking procedures would place the agency in violation of federal or state law.

Justification: Based on the passage of S.B. 177, 2011 General Legislative Session, which made substantial changes to the Private Investigator Act, this emergency rule is necessary to avoid conflicts between new statute and language in current rule. This emergency rule provides procedures that are consistent with the new statute.

State statutory or constitutional authorization for this rule:

• Title 53, Chapter 9

Anticipated cost or savings to:

the state budget:

No aggregate anticipated cost or savings to the state budget. This emergency rule addresses the changes in the actual process of applying for a Private Investigator License or the renewal of the license. The statutory changes made will not affect the state budget nor are there any anticipated costs or savings.

local governments:

No aggregate anticipated cost or savings to local government. This emergency rule addresses the changes in the actual process of applying for a Private Investigator License or the renewal of the license. The statutory changes made will not affect local government nor are there any anticipated costs or savings.

small businesses:

No aggregate anticipated cost or savings to small businesses. This emergency rule addresses the changes in the actual process of applying for a Private Investigator License or the renewal of the license. The statutory changes made will not affect small businesses nor are there any anticipated costs or savings.

persons other than small businesses, businesses, or local governmental entities:

No aggregate anticipated cost or savings to persons other than small businesses, businesses, or local government entities. This emergency rule addresses the changes in the actual process of applying for a Private Investigator License or the renewal of the license. The statutory changes made will not affect persons other than small businesses, businesses, or local government entities nor are there any anticipated costs or savings.

Compliance costs for affected persons:

No compliance costs. As this emergency rule addresses changes in the actual process for applying for a Private Investigator License or the renewal of the license there are not anticipated compliance costs for any of the persons addressed in aggregate cost information above.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule does not have any fiscal impact on businesses because it only describes the procedures necessary for an individual to obtain a Private Investigator License or the renewal of the license.

D. Lance Davenport, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Public Safety
Criminal Investigations and Technical Services, Criminal Identification
3888 W 5400 S
TAYLORSVILLE, UT 84118

Direct questions regarding this rule to:

• Alice Moffat at the above address, by phone at 801-965-4939, by FAX at 801-965-4944, or by Internet E-mail at [e-mail]

This rule is effective on:

05/10/2011

Authorized by:

Alice Moffat, Bureau Chief

RULE TEXT

R722. Public Safety, Criminal Investigations and Technical Services, Criminal Identification.

[ R722-330. Licensing of Private Investigators.

R722-330-1. Purpose.

The purpose of this rule is to define the licensing and regulation standards of private investigators as set forth in Title 53, Chapter 9, the "Private Investigator Regulation Act."

 

R722-330-2. Authority.

This rule is authorized by Subsection 53-9-103(6).

 

R722-330-3. Definitions.

A. Terms used in this rule are defined in Section 53-9-102.

B. In addition:

1. "Act constituting dishonesty or fraud" as used in Subsection 53-9-108(1)(a)(iv), means conviction of any crime as itemized in R724-4-3(M).

2. "Act involving illegally using, carrying, or possessing a dangerous weapon" as used in Subsection 53-9-108(1)(a)(ii), means conviction of any firearms violation involving a crime of violence.

3. "Act of personal violence or force on any person or threatening to commit any act of personal violence or force against another person" as used in Subsection 53-9-108(1)(a)(iii), means conviction of any crime in Subsection 76-10-501(2)(b).

4. "Division" means the Division of Law Enforcement and Technical Services of the Department of Public Safety.

5. "Moral turpitude" as used in Subsection 53-9-108(1)(a)(v), means conviction of any crime in R724-4-3(M).

 

R722-330-4. Application.

A. Applicants must use the application form provided by the division.

B. Applicants will be classified into three categories as set forth in Section 53-9-107: agencies, registrants, and apprentices.

1. If approved for licensure, an agency applicant will receive one private investigation agency license and one identification card.

2. Registrants and apprentices must be employed or contracted by a licensed agency.

C. Applicants must meet the qualifications set forth in Section 53-9-108 and will be required to provide all of the information and fees as set forth in Sections 53-9-109 through 111. Previous work experience must be verifiable for it to apply to the work experience requirement.

 

R722-330-5. Fees.

A. The information regarding license and registration fees as established by Section 53-9-111, shall apply to this rule.

B. In addition, in accordance with Section 53-9-111, a fee of $24 shall be charged for fingerprint processing and background investigation for each applicant. This fee is non-refundable.

 

R722-330-6. Issuance and Expiration of Identification Cards.

A. Information regarding the issuance and expiration of identification cards is set forth in Section 53-9-112.

B. In addition:

1. The board shall not issue licenses or registrations, but rather shall review applications and then make recommendations to the commissioner for approval or disapproval.

2. Upon approval by the commissioner, the division shall issue to the applicant an identification card that will expire two years from the issue date.

 

R722-330-7. Records Access.

A. Information supplied to the division by an applicant, including the completed application form, shall be considered "private" information in accordance with Section 63G-2-302.

B. Information gathered by the division in the course of investigating an application or complaint shall be considered "protected" information in accordance with Subsections 53-9-118(2)(e) and 63G-2-305(8). However, if such information is used as the basis for denial of a license or registration or discipline of a licensee or registrant, such information shall be considered "private" information in accordance with Section 63G-2-302 and the applicant shall have access to it.

 

R722-330-8. Adjudicative Proceedings.

A. The adjudicative proceedings set forth in this section shall be conducted informally as authorized by Section 63G-4-202 and as set forth in Section 63G-4-203.

B. Denials of initial and renewal licenses or registrations are appealable as set forth in Section 53-9-113.

C. The board may take disciplinary action against a licensee or registrant for violation of Subsection 53-9-118(1).

1. Except for summary suspension in emergency cases, disciplinary action will be taken only after the issuance of a notice of intent to discipline and an opportunity for hearing. A letter of caution is not considered to be disciplinary action and is not appealable.

2. The notice of intent to discipline will be issued by the commissioner, and will notify the licensee or registrant of the charge(s) and the right to a hearing before the board within 60 days.

3. Following the hearing, the board may take any of the actions set forth in Subsection 53-9-118(6).

D. Appeals to the Commissioner on denials of initial and renewal licenses or registrations are provided for in Subsection 53-9-113(4). Appeals to the commissioner on disciplinary action are provided for in Subsection 53-9-118(8). Such appeals to the commissioner shall not result in de novo hearings before the commissioner, but rather shall result in a review of the board's findings by the department's administrative law judge, who shall review the board's findings and issue a recommendation to the commissioner for the commissioner's approval and decision. The decision of the commissioner is appealable to the district court in accordance with Subsection 53-9-113(5) and Subsection 53-9-118(9) pursuant to Section 63G-4-402.]

R722-330. Licensing of Private Investigators.

R722-330-1. Purpose.

The purpose of this rule is to establish procedures for the licensing of private investigator agencies, registrants, and apprentices.

 

R722-330-2. Authority.

This rule is authorized by Subsection 53-9-103(6) which provides that the commissioner may make rules as necessary to administer the Private Investigator Regulation Act.

 

R722-330-3. Definitions.

(1) Terms used in this rule are defined in Section 53-9-102.

(2) In addition:

(a) "act involving moral turpitude" means conduct which:

(i) is done knowingly contrary to justice, honesty, or good morals;

(ii) has an element of falsification or fraud; or

(iii) contains an element of harm or injury directed to another person or another's property;

(b) "FBI" means the Federal Bureau of Investigation;

(c) "felony" means a crime under the laws of this state, any other state, the United States, or any district, possession, or territory of the United States for which the penalty is a term of imprisonment in excess of one year;

(d) "legal resident of this state" means a person who has established a domicile in Utah, as that term is defined in Section 41-1a-202;

(e) "license" means a private investigator agency, registrant, or apprentice license;

(f) " revocation" means the permanent deprivation of a private investigator license, however revocation of a private investigator license does not preclude an individual from applying for a new private investigator license if the reason for revocation no longer exists; and

(g) "suspension" means the temporary deprivation, for a specified period of time, of a private investigator license .

 

R722-330-4. Application for Licensure.

(1)(a) An applicant seeking to obtain a license must submit a completed application packet to the bureau.

(b) The application packet shall include:

(i) a written application form provided by the bureau which shall include the applicant's residential address;

(ii) one recent color photographs of passport quality which contains the applicant's name written on the back of the photograph

(iii) a photocopy of a state-issued driver license or identification card ;

(iv) one completed FBI applicant fingerprint card (Form FD-258) with the applicant's legible fingerprints; and

(v) the non-refundable license and registration fee in the amount indicated in Section 53-9-111 plus the $30.25 FBI fingerprint processing fee, in the form of cash, check, money order, or credit card.

(2) If an applicant is applying for an agency license, the applicant must also provide:

(a) the name under which the applicant intends to do business;

(b) the applicant's business address;

(c) a completed Verification of Investigative Experience Form which documents that the applicant has performed 10,000 hours of investigative experience as provided in Section 53-9-108(3);

(d) a certificate of liability insurance in an amount of not less than $500,000 as described in Subsection 53-9-109(3); and

(e) a certificate of workers' compensation insurance, if applicable.

(3) If the applicant is applying for a registrant license, the applicant must also provide:

(a) the name of the licensed agency for which the applicant will be an employee or contract registrant;

(b) authorization from a licensed agency indicating that the agency will employ or contract with the applicant;

(c) a completed Verification of Investigative Experience Form which documents that the applicant has performed 2,000 hours of investigative experience as provided in Section 53-9-108(3); and

(d) a surety bond in the amount of $10,000 as described in Subsection 53-9-110(3).

(4) If the applicant is applying for a apprentice license, the applicant must also provide:

(a) the name of the licensed agency for which the applicant will be an employee or apprentice;

(b) authorization from a licensed agency indicating that the agency will employ or contract with the applicant; and

(c) a surety bond in the amount of $10,000 as described in Subsection 53-9-110(3).

 

R722-330-5. Verification of Investigative Experience

(1)(a) When completing the Verifying of Investigative Experience Form which must be submitted for an agency or registrant license, the applicant must describe, in detail, the number of hours and the type of investigative work which the applicant performed.

(b) The investigative experience must have been performed within ten years from the date of the application while the applicant was working as a licensed private investigator or an investigator for a governmental entity.

(c) The Verification of Investigative Experience Form must be certified by the private investigator or governmental employer for whom the applicant performed the investigative work.

(d) If the applicant is unable to provide certification from a private investigator or governmental employer, the applicant may provide certification from the individual for whom the applicant performed the investigative work.

(2) An applicant seeking to receive credit towards the investigative experience requirement for licensure under Section 53-9-108(5), must provide written documentation of the degree or certification for which the applicant is seeking credit.

 

R722-330-6. Issuance of License.

(1)(a) Upon receipt of a completed application packet, the bureau shall conduct a thorough background investigation to determine if the applicant meets the requirements for licensure.

(b) Once the background check is complete, the bureau shall submit the completed application packet to the board for review, unless the application is for an apprentice license.

(c) The bureau shall review all applications for apprentice licenses to determine whether the applicants meet the requirements for licensure.

(d) If the bureau finds that an applicant for an apprentice license meets the requirements for licensure, the bureau shall issue the apprentice license within 5 days.

(e) If the bureau finds that an applicant for an apprentice license does not meet the requirements for licensure, the bureau shall submit the application to the board.

(2)(a) The board shall review all application packets submitted by the bureau to determine whether applicants meet the requirements for licensure.

(b) If the board determines that an applicant meets the requirements for licensure, the board shall direct the bureau to issue the license.

(3) If the background check indicates that an applicant does not meet the qualifications set forth in Subsection 53-9-108(1)(b), the board shall consider any mitigating circumstances submitted by the applicant.

(4)(a) If the board determines that an applicant does not meet the qualifications for licensure the board shall deny the application.

(b) The board shall issue a written denial which states the reasons why the license was denied and indicates that the applicant may request a hearing before the board by filing a written request within thirty days from the date the board's written denial was issued.

(5)(a) If the applicant requests a hearing, the board shall conduct an informal hearing during which the applicant may present evidence and testimony in response to evidence and testimony presented by the bureau.

(b) The board shall issue a written decision, within 10 business days of the hearing, which states the reason for the decision and indicates that the decision may be reviewed by the commissioner if the licensee files a written request for review with the commissioner within 30 days.

(6)(a) If the applicant requests review of the board's decision, the commissioner or his designee shall review the materials in the bureau's file, any materials submitted by the applicant, and the findings of the board.

(b) The commissioner shall issue a written decision, within 30 days from the date of the request for review, which states the reasons for the decision and indicates that the applicant may appeal to the district court by complying with the requirements found in Section 63G-4-402.

 

R722-330-7. Renewal of a License.

(1)(a) A licensee seeking to renew a license must submit a completed renewal packet to the bureau.

(b) The renewal packet shall include:

(i) a written renewal form provided by the bureau which shall include the applicant's residential address;

(ii) one recent color photograph of passport quality which contains the applicant's name written on the back of the photograph; and

(iii) a non-refundable processing fee in the form of cash, check, money order, or credit card in the amount required by Section 53-9-111.

(2) If the licensee has an agency license, the licensee must also provide evidence that the licensee has a valid certificate of:

(a) liability insurance as described in Subsection 53-9-110(3); and

(b) workers' compensation insurance, if applicable.

(3) If the licensee has a registrant or an apprentice license, the licensee must provide evidence that the licensee has a valid surety bond as described in Subsection 53-9-109(3).

(4) A licensee whose license has been expired for more than ninety days, must reapply and meet all requirements found in R722-330-4.

(5) If the applicant meets the qualifications for renewal the bureau shall renew the license.

(6)(a) If the bureau determines that the applicant does not meet the qualifications for renewal the bureau shall deny the renewal.

(b) The bureau's written denial shall state the reasons why the renewal was denied and indicate that the licensee may request a hearing before the board by filing a written request within thirty days from the date the bureau's written denial was issued.

(7)(a) If the licensee requests review by the board, the board shall conduct an informal hearing during which the licensee may present evidence and testimony in response to evidence and testimony presented by the bureau.

(b) The board shall issue a written decision, within 10 business days of the hearing, which states the reason for the decision and indicates that the decision may be reviewed by the commissioner if the licensee files a written request for review with the commissioner within 30 days.

(8)(a) If the licensee requests review of the board's decision, the commissioner or his designee shall review the materials in the bureau's file, any materials submitted by the licensee, and the findings of the board.

(b) The commissioner shall issue a written decision, within 30 days from the date of the request for review, which states the reasons for the decision and indicates that the licensee may appeal to the district court by complying with the requirements found in Section 63G-4-402.

 

R722-330-8. Suspension and Revocation of a License.

(1) The bureau shall conduct an investigation, as provided in Section 53-9-117, if the bureau is made aware of an allegation that a licensee has engaged in conduct in violation of Section 53-9-118.

(2) The bureau shall notify a licensee who is the subject of an investigation of the date and time of the board meeting where the board will consider the bureau's investigative findings.

(3) The board shall conduct an informal hearing during which the licensee may present evidence and testimony in response to the bureau's investigative findings and recommendations.

(4) The board shall issue a written decision, within ten business days after the hearing, which states the reasons for the board's decision and indicates that the licensee may appeal to the commissioner by filing a written request within fifteen days from the date that the board's written decision was issued.

(5)(a) If the licensee requests review of the board's decision, the commissioner or his designee shall review the materials in the bureau's file, any materials submitted by the licensee, and the findings of the board.

(b) The commissioner shall issue a written decision, within 30 days from the date of the request for review, which states the reasons for the decision and indicates that the licensee may appeal to the district court by complying with the requirements found in Section 63G-4-402.

 

R722-330-9. Records Access.

(1) Information supplied to the division by an applicant or licensee, including a completed application or renewal form, shall be considered "private" information in accordance with Subsection 63G-2-302(2)(d).

(2)(a) Information gathered by the division in the course of investigating an application or complaint shall be considered "protected" information in accordance with 63G-2-305(9).

(b) If such information is used as the basis for the denial, suspension or revocation of a license, the applicant or licensee shall be entitled to access the information.

 

KEY: private investigators, license

Date of Enactment or Last Substantive Amendment: May 10, 2011

Notice of Continuation: April 22, 2010

Authorizing, and Implemented or Interpreted Law: 53-9-103(6)

 

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