H 4446 General Bill, By T.F. Rogers
 A Bill to amend Title 40, Code of Laws of South Carolina, 1976, by adding
 Chapter 16 so as to provide for the regulation of private investigators, to
 create a State Board of Investigators and provide for its powers and duties,
 to provide for the qualification of applicants and requirements of application
 for private investigators, require a bond, provide for the issuance of
 licenses and fees, registration and fees for employees of the private
 investigator business, suspension and revocation of licenses, for reciprocity
 agreements, and to provide penalties for violations; to amend Sections
 40-17-20, 40-17-30, 40-17-70, and 40-17-120, all as amended, and Act 78 of
 1991, relating to the regulation of private detective and private security
 businesses, so as to delete all references to private detectives and private
 detective businesses; provide for the continuation of licenses; to authorize
 the existence of the State Board of Private Investigators for six years; and
 to repeal Sections 40-17-55, 40-17-75, and 40-17-145 of the 1976 Code relating
 to the regulation of a private detective.

   02/25/92  House  Introduced and read first time HJ-9
   02/25/92  House  Referred to Committee on Labor, Commerce and
                     Industry HJ-9

A BILL

TO AMEND TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 16 SO AS TO PROVIDE FOR THE REGULATION OF PRIVATE INVESTIGATORS, TO CREATE A STATE BOARD OF INVESTIGATORS AND PROVIDE FOR ITS POWERS AND DUTIES, TO PROVIDE FOR THE QUALIFICATION OF APPLICANTS AND REQUIREMENTS OF APPLICATION FOR PRIVATE INVESTIGATORS, REQUIRE A BOND, PROVIDE FOR THE ISSUANCE OF LICENSES AND FEES, REGISTRATION AND FEES FOR EMPLOYEES OF THE PRIVATE INVESTIGATOR BUSINESS, SUSPENSION AND REVOCATION OF LICENSES, FOR RECIPROCITY AGREEMENTS, AND TO PROVIDE PENALTIES FOR VIOLATIONS; TO AMEND SECTIONS 40-17-20, 40-17-30, 40-17-70, AND 40-17-120, ALL AS AMENDED, AND ACT 78 OF 1991, RELATING TO THE REGULATION OF PRIVATE DETECTIVE AND PRIVATE SECURITY BUSINESSES, SO AS TO DELETE ALL REFERENCES TO PRIVATE DETECTIVES AND PRIVATE DETECTIVE BUSINESSES; PROVIDE FOR THE CONTINUATION OF LICENSES; TO AUTHORIZE THE EXISTENCE OF THE STATE BOARD OF PRIVATE INVESTIGATORS FOR SIX YEARS; AND TO REPEAL SECTIONS 40-17-55, 40-17-75, AND 40-17-145 OF THE 1976 CODE RELATING TO THE REGULATION OF A PRIVATE DETECTIVE.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 40 of the 1976 Code is amended by adding:

Section 40-16-10. This chapter is known and may be cited as the `South Carolina Private Investigators Act'.

Section 40-16-20. As used in this chapter, unless the context otherwise requires:

(1) `Board' means the South Carolina Private Investigators Board.

(2) `Operators' or `assistants' means persons employed by a private investigator business to do work as a private investigator for his employer.

(3) `Private investigator business' means engaging in the business of or accepting employment to obtain or furnish information with reference to:

(a) the identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of a person; or

(b) location, disposition, or recovery of lost or stolen property; or

(c) cause or responsibility for fires, libels, losses, accidents, damage, or injury to person or property; or

(d) securing evidence to be used before a civil or criminal court, a board, an officer, or an investigating committee. Evidence of criminal action or involvement must be reported by the registered private investigator to the Chief of the South Carolina Law Enforcement Division unless the information is protected as provided by law;

(e) private investigator business does not include persons employed exclusively and regularly by only one employer in connection with the affairs of the employer only and where there exists an employer-employee relationship unless the employer is in the investigator business.

Section 40-16-30. The board may:

(1) establish and enforce rules and regulations pertaining to private investigator licensees and private investigator operators and assistants;

(2) determine the qualifications of applicants for licenses or registration under this chapter;

(3) investigate alleged violations of this chapter and regulations promulgated by the board;

(4) regulate and oversee the conduct of private investigators;

(5) establish and enforce standards governing the safety and conduct of persons licensed and registered under this chapter;

(6) provide training seminars for the purposes of training individuals on the laws governing private investigators and the responsibilities for private investigators and their employees and other rules and requirements the board may establish by regulation;

(7) approve the curriculum for the training seminars;

(8) conduct background and criminal history investigations of applicants through the proper authorities of this State;

(9) promulgate regulations necessary to carry out this chapter.

Section 40-16-40. The State Board of Private Investigators is established. It shall consist of five members appointed by the Governor for terms of four years, staggered for the first term, appointees to be appointed for one-year, two-year, three-year, and four-year intervals until successors are appointed and qualify. Successors are then appointed for four-year intervals. The board members shall consist of four private investigators, having each a minimum of five years investigative experience, and one licensed staff investigator, having a minimum of five years' experience. The appointees must be representative of the Piedmont, Midland, and Coastal areas of the State. The Governor may remove any member for good cause shown and appoint a member to fill the unexpired term.

Section 40-16-50. Each board member shall receive for each day actually engaged in the duties of his office a per diem not to exceed fifty dollars plus actual expense for food and lodging and his actual mileage at the rate prescribed for members of state boards, commissions, and committees payable from revenues collected pursuant to the provisions of this chapter.

Section 40-16-60. The board shall maintain a suitable office in Columbia and shall adopt and use a common seal for the authentication of its orders and records.

Section 40-16-70. (A) The board shall elect its own officers and a full-time executive director. The executive director shall receive an annual salary as well as all other expenses of the board, and must be paid only out of the revenues collected under the provisions of this chapter. The executive director shall keep and preserve all records of the board, issue all necessary notices to the private investigators of the State, and perform such other duties, clerical and otherwise, as may be imposed upon the executive director by the board. The executive director shall turn over, as required by law, all monies collected and render full, itemized, and detailed reports as required by law. The executive director shall, before entering the duties of his office, execute to the State a satisfactory bond, with a duly licensed bonding company in this State, as surety or with other acceptable surety, such bond to be in the penal sum of not less than ten thousand dollars and conditioned upon the faithful performance of the duties of his office.

(B) The board may employ such staff as it considers necessary to carry out its functions as prescribed in this chapter subject to funds available to the board.

Section 40-16-80. (A) A person or corporation desiring to carry on a private investigator business in this State must obtain a license and make a verified application in writing to the board for a license.

(B) The board may grant a license to a person who or corporation who:

(1) is at least twenty-one years of age;

(2) is a citizen of the United States;

(3) has not been convicted of a felony or crime involving moral turpitude;

(4) has not committed an act constituting dishonesty or fraud;

(5) who has not been convicted of driving under the influence within the past five years, or is not a person with a record of mental illness and has not been restored to legal capacity, or has not been discharged from the military service under other than honorable conditions.

(6) has had at least five years' experience as a private investigator or with a licensed private investigative agency, or as a staff legal investigator, or as an investigator of any federal, state, county, or municipal law enforcement agency. This item is satisfied if he complies with other requirements the board may establish by regulation.

(C) The application for a license must be made in writing, under oath, on a form furnished by the board. It must state the applicant's full name, age, date, place of birth, residences, and employment within the past five years and his present occupation with the names and addresses of employers, the date and place of conviction of a crime, and additional information the board requires to investigate the qualification, competency, and integrity of the applicant. The applicant shall submit with the application one set of fingerprints on forms specified and furnished by the board and a photograph in color, two inches wide by three inches high, taken within six months before the application. The application must contain additional information and documentation the board may require by regulation.

Section 40-16-90. An applicant for a license to operate a private investigator business shall post with the board a bond in favor of the State with a minimum surety of fifty thousand dollars. All private investigator agencies shall post this bond for each operator or assistant employed by the agency. No bond may be accepted for filing unless it is with a surety company authorized to do business in this State and conditioned that the principal may not do an act meriting suspension or revocation of his license under this chapter. In lieu of a bond, a cash deposit, or general liability insurance, or other securities acceptable to the board of fifty thousand dollars must be accepted. A person aggrieved by an act of the principal named in the bond in violation of this chapter may proceed on the bond against the principal or the surety, or both, to recover damages. The aggregate liability of the surety for breaches of the conditions of the bond may not exceed the amount of the bond. The surety on the bond may cancel the bond upon giving thirty days' notice to the board and is relieved of the liability for a breach of condition after the effective date of cancellation.

Section 40-16-100. (A) Upon being satisfied, after investigation, of the competency and integrity of an applicant or, if the applicant is an association, partnership, or corporation, of the officers and certain stockholders, the board shall grant a license to conduct the private investigator business stated in the application. The license is for one year and application for renewal must be on a form furnished by the board.

(B) The initial and annual renewal license fee for conducting a private investigator business must be promulgated by the board by regulation.

(C) Immediately upon receipt of a license certificate issued by the board pursuant to this chapter, the private investigator business licensee shall post and at all times display the certificate in a conspicuous place at his place of business. A copy or duplicate of the certificate must be posted conspicuously at each branch office.

(D) A private investigator or a private investigator agency licensed under the provisions of this chapter, shall provide the board the address of each business location and branch office and notify the board of any change of business address within thirty days of any change of address.

Section 40-16-110. (A)(1) Licensees may employ as many operators and assistants considered necessary for the conduct of business. The employees must be citizens of the United States and at least eighteen years of age. Immediately upon hiring operators and assistants, the licensee shall make application to register the employee with the board. The application must be made on forms furnished by the board under oath, the employee shall give his name, address, date and place of birth, employment for the past five years, experience in the position applied for, and convictions for violation of the law, and other information the board may require by regulation, to investigate properly the competency and integrity of the employee. The application for registration must be accompanied by one set of fingerprints of the employee and one photograph of the employee in color, two inches wide by three inches high, full face, without head covering, taken within six months before the application.

(2) No person may be approved for employment who has been convicted of a crime involving moral turpitude that would tend to question his honesty and integrity, who has been convicted of driving under the influence within the past five years, or a person with a record of mental illness and who has not been restored to legal capacity, has been discharged from the military service under other than honorable conditions, or has been refused a license under this chapter for other than minimum experience, or whose license has been revoked or is under suspension. Upon being satisfied of the suitability of the applicant for employment and that the applicant has completed an acceptable training program, the board shall register the employee and notify the licensee. The licensee shall notify the board within five days of the termination of employment of registered employees. The board may waive the submission of fingerprints and photographs for an employee who has been employed by a person licensed under this chapter within the previous six months. Registration is for one year and application for renewal must be on a form furnished by the board.

(B) The initial and annual renewal registration fee for an employee registered in accordance with this section is fifty dollars.

(C) In order to insure compliance with this section, licensees shall make employment records available for inspection by the board during normal business hours.

Section 40-16-120. The board shall issue three types of licenses which are:

(1) a private investigator license for an individual in the private investigator business;

(2) a private investigator agency license for a private investigator agency employing one or more employees;

(3) a private investigator agency employee registration for private investigators employed by a private investigator agency on a temporary or permanent basis.

Section 40-16-130. (A) The board, after hearing, may suspend or permanently revoke a license or registration issued under this chapter if it determines that the holder of the license or registration has:

(1) made a false statement or given false information in connection with an application or renewal or reinstatement of a license or registration;

(2) violated this chapter;

(3) violated a regulation promulgated by the board pursuant to the authority in this chapter;

(4) been convicted of a felony or a crime involving moral turpitude or involving the illegal use, carrying, or possession of a dangerous weapon since becoming licensed or registered;

(5) committed an act in the course of the business constituting dishonesty or fraud;

(6) impersonated or permitted or aided and abetted a person to impersonate a law enforcement officer or employee of the United States, this State, or its political subdivisions, or municipal corporations since becoming licensed or registered;

(7) engaged in or permitted an employee to engage in the private investigator business when not lawfully in possession of a valid license or registration issued under this chapter;

(8) wilfully failed or refused to provide a written contract outlining services to be provided and fees charged, or to render a client service as agreed upon, or to provide a written report detailing investigative hours worked and results of the investigation;

(9) convicted of an unlawful breaking or entering, assault, battery, or kidnapping since becoming licensed or registered;

(10) knowingly violated or advised, encouraged, or assisted the violation of a court order or injunction in the course of business;

(11) committed an act which is a ground for denial of an application for license or registration under this chapter;

(12) undertake to give legal advice or counsel or to represent that he is representing an attorney unless he is working directly with, and for such an attorney in the investigation of a specific case and under contract with such an attorney, and with the attorney's consent in accordance with the rules and regulations governing attorneys of this State.

(B) Pending the hearing in subsection (A), the board may revoke or suspend a license or registration issued under this chapter when it has good reason to believe that grounds for revocation exist.

(C) The revocation or suspension of a license or registration as in subsection (A) must be in writing, signed by the chairman of the board, stating the grounds upon which the revocation or suspension order is based. The revocation or suspension by the board is conclusive and binding as to all questions of fact. However, either party to the dispute, within thirty days from the date of the revocation or suspension or within thirty days after receipt of notice to be sent by registered mail of the revocation or suspension, but not thereafter, may appeal from the decision of the board to the court of common pleas of the county in which the private investigator resides or has his principal office for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.

Section 40-16-140. A private investigator registered under the provisions of this chapter shall maintain copies of all written contracts outlining services to be rendered for three years. These copies must be available for inspection by the board during regular business hours.

Section 40-16-150. All proceeds received by the board as provided for in this chapter must be used in the administration of the provisions of it. If the board determines that more proceeds are collected than are necessary for the administration of this chapter, it shall pay this surplus fund to the State Treasurer to be deposited in the general fund of the State.

Section 40-16-160. A person holding a valid private investigator's license issued by a proper authority of a state, territory, or possession of the United States or the District of Columbia, based on requirements and qualifications similar to the requirements of this chapter, may be issued a temporary permit to operate in this State for a period not to exceed ninety days, provided that the person's licensing jurisdiction extends by reciprocity similar privileges to a private investigator licensed by this State. Any reciprocity agreement approved by the board shall provide that any misconduct in the state issuing the temporary permit must be dealt with in the licensing jurisdiction as though the violation occurred in that jurisdiction. The board shall charge a fee not to exceed one hundred dollars to cover the cost of administering this section.

Section 40-16-170. A person violating the provisions of this chapter is guilty of a misdemeanor and, upon conviction, must be fined in an amount not to exceed five thousand dollars or imprisoned for a term not to exceed one year, or both."

SECTION 2. Section 40-17-20 of the 1976 Code, as last amended by Act 78 of 1991, is further amended to read:

"Section 40-17-20. As used in this chapter, unless the context otherwise requires:

(1) `Private detective business' means engaging in the business of or accepting employment to obtain or furnish information with reference to the:

(a) identity, habits, conduct, business, occupation, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations,transactions, acts, reputation, or character of a person;

(b) location, disposition, or recovery of lost or stolen property;

(c) cause or responsibility for fires, libels, losses, accidents, damage, or injury to persons or property; or

(d) securing evidence to be used before a civil court, a board, an officer, or an investigating committee. Evidence of criminal action or involvement must be reported by the registered private detective to the Chief of the South Carolina Law Enforcement Division.

Private detective business does not include persons employed exclusively and regularly by only one employer in connection with the affairs of the employer only and where there exists an employer-employee relationship unless the employer is in the detective business.

(2)(1) `Private security business' means engaging in the business as or accepting employment as a private patrol, watchman, or guard service for consideration on a private contractual basis and not as an employee. Private security business does not include persons employed exclusively and regularly by only one employer in connection with the affairs of the employer only and where there exists an employer-employee relationship unless the employer is in the private security business.

(3)(2) `Division' means the South Carolina Law Enforcement Division."

SECTION 3. Section 40-17-30 of the 1976 Code, as last amended by Act 78 of 1991, is further amended to read:

"Section 40-17-30. (A) The chief of the division has the following powers and duties as they relate to the practice of private security businesses:

(1) determine the qualifications of applicants for licenses or registration under this chapter;

(2) investigate alleged violations of this chapter and regulations promulgated by the division;

(3) promulgate regulations necessary in carrying out this chapter;

(4) establish and enforce standards governing the safety and conduct of persons licensed and registered under this chapter.

(5) provide training seminars for the purposes of training individuals to be training officers and to train employees of or applicants for employment with licenses to ensure that they have requisite knowledge and skills necessary to the private security business. The fee for attending such seminars shall be set by the designated training facility and retained by that facility for the purpose of defraying the costs of conducting the seminars;

(6) certify and register company training officers prior to their training for private security agencies; and

(7) approve, with the advice and consent of the South Carolina Criminal Justice Academy, the curriculum for the training seminars.

(B) Individuals who engage in the private detective business are not required to be licensed but shall register with the division as provided by this chapter. The chief of the division has the following powers and duties as they relate to the practice of private detective businesses:

(1) determine the eligibility of applicants for registration under this chapter;

(2) investigate alleged violations of this chapter and regulations promulgated by the division;

(3) promulgate regulations necessary to carry out this chapter.

(C)(B) All company training officers certified prior to October 3, 1986, shall be are required to be recertified within one year of enactment of this amendment."

SECTION 4. Section 40-17-70 of the 1976 Code, as last amended by Act 78 of 1991, is further amended to read:

"Section 40-17-70. (A) Upon being satisfied, after investigation, of the competency and integrity of an applicant or, if the applicant is an association, partnership, or corporation, of the officers and certain stockholders, the division may grant a license to conduct the private security business stated in the application. However, this section does not apply to persons licensed in accordance with Section 40-17-40. The license is for one year and application for renewal must be on a form furnished by the division.

(B) After investigation, if the division is satisfied with an applicant's integrity, it shall register him to conduct a private detective business. The initial and annual renewal registration fee for a private detective must be set by the division by regulation.

(C)(B) The initial and annual renewal license fee for conducting a private security business must be set by the division by regulation.

(D)(C) Immediately upon the receipt of a license certificate issued by the division pursuant to this chapter, the private security business licensee shall post and at all times display the certificate in a conspicuous place at his place of business. A copy or duplicate of the certificate must be posted conspicuously at each branch office."

SECTION 5. Section 40-17-120 of the 1976 Code, as last amended by Act 78 of 1991, is further amended to read:

"Section 40-17-120. (A) Except as provided in subsection (D), the The division may grant to a person licensed or registered in accordance with this chapter a permit to carry a pistol, revolver, or other firearm. Application for the permit must be made on forms provided by the division, and the fee is twenty dollars a year. The permit is for one year and application for renewal must be on a form furnished by the division. The permit is not transferable.

(B) No person may be issued a permit until he has presented to the division proof that he is proficient in the use of firearms and has received a minimum of four hours' classroom instruction.

(C) A person engaged in the private security business or registered in accordance with Section 40-17-80 and issued a permit in accordance with this section may carry a firearm in an open and fully-exposed manner only while on duty, in uniform, and going to and from work. However, the division in its discretion may issue an additional written permit to the person to carry the firearm about his person, concealed or not, even though he is not in uniform nor on duty if the division determines that the additional permit will enable the permittee to perform his assigned duties better. No additional permit may be issued to a permittee to be effective in a place where alcoholic beverages, beer, or wine are sold or consumed.

(D) Permits for carrying firearms must not be issued to persons registered as private detectives."

SECTION 6. In accordance with Section 1-20-60 of the 1976 Code, the existence of the State Board of Private Investigators is authorized for six years.

SECTION 7. A person currently registered as a private investigator on the effective date of this act may continue to operate until the expiration of his license. At that time he shall register pursuant to Section 40-16-80 of the 1976 Code added by Section 1 of this act.

SECTION 8. Section 13 of Act 78 of 1991 and Sections 40-17-55, 40-17-75, and 40-17-145 of the 1976 Code are repealed.

SECTION 9. This act takes effect one hundred eighty days after approval by the Governor.