SESSION OF 1998

SUPPLEMENTAL NOTE ON HOUSE BILL NO. 2487

As Amended by House Committee on

The bill would make numerous changes to the statutes under which private detectives are licensed and regulated. Major changes are summarized below.

Firearm Training Review Board

�The bill would create a Firearm Training Review Board that would consist of all the certified firearm trainers in the state. The Attorney General's representative would chair the Board. The Board would have to conduct an annual review of firearm permit procedures, training requirements, and use of force by private detectives. In addition to advising the Attorney General regarding firearm permit rules and regulations, procedures, and training, the Board could be convened to conduct reviews of specific instances of the use of deadly force by licensed detectives. The bill would establish procedures for reviews of the use of deadly force initiated at the request of licensed detectives.

New License Categories

�"Interns," who would be defined as persons who do not meet certain licensure qualifications and who are preparing to qualify as a detective, could be granted a conditional license. Interns would have to be employed by a licensed private detective agency and be actively training to become qualified.

�The Attorney General would be authorized to issue a temporary license that would be valid for a maximum of 120 days. The $20 temporary license fee would have to be credited toward a new applicant's license fee.

Changes Regarding Who Must Be Licensed

�The requirement that principals of detective agencies be individually licensed would no longer apply to associates, but would apply to owners.

�Investigations of the cause or responsibility for frauds and "conducting any polygraph or electronic truth verification testing" would be included in the definition of detective business for which a private detective license would be required.

The bill would continue existing policy that excludes law enforcement officers from the licensure requirement.

�The bill would require persons preparing investigative consumer reports as defined in the Kansas Fair Credit Reporting Act to have a detective license. A consumer report is defined in that Act to be any communication by a consumer reporting agency to be used or collected to establish the consumer's eligibility for credit or insurance or for other purposes permitted under the Act. The Act defines an investigative consumer report as any communication or portion of a consumer report in which information on a consumer's character, general reputation, personal characteristics, or mode of living has been obtained through personal interviews with neighbors, friends, or associates of the consumer.

The bill would retain the existing exemption for persons who exclusively engage in the business of obtaining and furnishing information about persons' financial ratings.

Changes Regarding Who Would Not Have

to Be Licensed Under the Act

�"Operatives" utilized by a detective agency or independent detective for a limited time period or limited purpose would not have to be licensed. Operatives would be defined to be persons who are paid to provide information to, work undercover for, or translate for a detective or detective agency.

�A person licensed in another state or municipality if the licensee is conducting an investigation that began in the jurisdiction where the detective is licensed and is only working in Kansas for less than 72 hours would not have to be licensed.

�Persons employed exclusively and regularly by an attorney or law firm performing duties exclusively on behalf of the attorney or law firm would not have to be licensed.

Under current law, attorneys doing work as attorneys do not have to be licensed as detectives.

�Private patrol operators would be exempt from the licensure requirement only while actually engaged in providing private patrol services.

�Persons conducting market research would not have to be licensed under the Act.

�The bill would clarify that persons who are employed to investigate the internal affairs of the person's employer do not have to be licensed under the Act.

Changes to the Application Process

�Photographs submitted with the application would have to be taken within 60 days of date of application.

Under existing law, photographs submitted with applications must be "recent."

�Two new photographs would have to be submitted with a renewal application.

Under existing law, a new photograph is only required with the renewal application if the previously submitted photographs are over two years old.

�One of the two sets of fingerprints submitted with a license application would have to be submitted to the FBI for a criminal history check.

Under existing law, two sets of fingerprints must be submitted with the application, but there is no provision for submission of fingerprints to the FBI.

�The bill would require only new applications to include references, eliminate the distinction between resident and nonresident applicants, and eliminate the requirement that references be from persons in the community where the licensee will engage in the detective business. All applications would have to be approved by five or more "reputable citizens who have known the applicant for" at least five years. References would have to be notarized.

New Qualifications for Licensure

�In order to obtain a license, an applicant would have to be able to read, write, and comprehend English.

�A person impaired by reason of mental condition, deficiency or disease, as determined by a court, could not be licensed unless the person had been restored to capacity, competency, or mental health.

�A person dishonorably discharged from the U.S. military could not be granted a detective license.

�The bill would repeal the existing provision that permits the Attorney General to adopt rules and regulations specifying qualifications that are not enumerated in the statute.

�Current licenses would be valid until the license expires or is suspended or revoked.

Pre-licensure Background Check

�Only new applicants would be subject to a complete background investigation by the Attorney General. Principals of organization applicants would only be subject to the background check if they would be actively involved in the detective business.

Under existing law, the Attorney General must conduct a complete background check of all individual applicants and officers, directors, partners, or associates of organization applicants to determine whether they meet the statutory qualifications for licensure.

Pre-licensure Examination

�Individual applicants and those principals of organization applicants who would actively perform or supervise the detective business would have to pass a written examination. The subject of the examination would be the private detective licensing statute and the rules and regulations pertaining to private detectives. The existing requirement for an oral interview would be repealed.

Under existing law, individual applicants and officers, directors, partners, or associates of organization applicants must pass a written examination of their knowledge of the detective business and submit to an oral interview with the Attorney General or the Attorney General's designee.

Grounds for License Denial

�Conviction of a felony at any time.

Under existing law, conviction of a felony would constitute grounds for license denial only if the conviction was within ten years of the date of application.

�Conviction of the following crimes within ten years immediately prior to application: vehicular homicide, assault, battery, assault of a law enforcement officer, misdemeanor battery against a law enforcement officer, criminal restraint, sexual battery, endangering a child, intimidation of a witness or victim, breach of privacy, eavesdropping, criminal trespass, unlawful deprivation of property, and theft.

Existing provisions regarding moral turpitude, dishonesty, and illegally using, carrying, or possessing a dangerous weapon would continue to be grounds for license denial.

�A license could not be granted to an applicant whose license had been limited, censured, or suspended as a result of a regulatory action in Kansas or another jurisdiction.

The bill would retain the existing provision that prohibits granting a license to a person who had been refused a license or had a license revoked in any jurisdiction.

�The bill would repeal the exsiting provision that prohibits granting a license to an individual who had been a principal of an organization that had its license revoked in Kansas or in another jurisdiction.

�An applicant who had knowingly committed or aided and abetted the commission of any act for which a license is required could not be licensed.

Under existing law, an unlicenced person who had committed or aided and abetted in an act for which a license is required could be denied a detective's license.

New Disciplinary Actions and Procedures

�The bill would add censure, limitation, or condition of a license or firearm permit to the disciplinary options available to the Attorney General.

�In addition to the procedures of the Kansas Administrative Procedure Act, the Attorney General's disciplinary hearings would have to be conducted in accordance with the Firearm and Training Review Board when applicable.

Grounds for Disciplinary Action

�The bill would create as new grounds for disciplinary action:

those crimes that would disqualify a person for initial licensure;

using false, misleading, or deceptive information in any advertisement, solicitation, or contract for business;

acting as a decoy or lure for any fraudulent or illegal purpose;

using false, misleading, or deceptive information in an ad, solicitation, or contract for business; and

producing false evidence.

�The bill would repeal, as grounds for disciplinary action:

willful failure or refusal to render to a client services or a report as agreed and for which compensation has been paid or tendered in accordance with the agreement between the parties,

acting as a runner or a capper for any attorney; and

commission of an act that would result in denial of a license.

Licensees' Responsibility for Employees

�The bill would specifically exempt licensees from responsibility for employees who act outside the scope of employment or who act at the direction of a client outside the contractual obligation of the licensee.

Under existing law, licensees are legally responsible for employees' or agents' good behavior while they are engaged in detective business as well as for the employees' or agents' violations of the Act.

Requirement to Report Criminal Offenses

�Licensees could, but would not be required to, divulge to the Attorney General, law enforcement officer, or county attorney, information about criminal offenses. The bill specifically mentions disclosure under court subpoena or order.

Under existing law, licensees are required to divulge to the Attorney General, law enforcement officer, or county attorney any information the licensee acquires about any criminal offense. The licensee cannot divulge any information to any other person, unless directed to do so by the licensee's client.

Written Reports

�A licensee could designate another person to submit written reports to clients.

Under existing law, only licensees are able to provide written reports to clients.

New Authority

�Use of an alias would be allowed for covert or undercover investigative activities.

Access to Private Property

�Entry onto private property that is normally accessible to the public would be allowed without specific permission of the owner or person who legally possesses the property.

Under existing law, access to private property is only permitted with the consent of the owner or person in legal possession of the property.

Advertising

�Use of a particular name and address would no longer be required in advertisements, but ads could not contain any false, misleading, or deceptive information.

Liability Insurance Coverage

�The amount of general liability insurance would be set at $10,000 which is equal to the amount of surety bond or cash deposit required by current law.

�The bill would repeal the provision that insurance cover intentional acts and personal injury.

Under existing law, insurance must cover general liability for bodily injury or property damage caused by negligence, error, or omissions, or intentional acts, and personal injury caused by libel, slander, false arrest, false imprisonment, invasion of privacy, wrongful entry, wrongful eviction, or malicious prosecution.

Access to Records

�Detective agency records would have to be retained for at least three years.

�Licensees' records could be accessed only under subpoena or court order based on a complaint by a U.S. citizen.

�The bill would repeal the existing requirement that digests of verbal reports be prepared and that all written reports be maintained in the agency's office.

�Subpoenas issued by the Attorney General as part of the investigation of a complaint specifically would have to comply with confidentiality standards of privacy acts, fair credit reporting acts, polygraph acts, privilege, and the Kansas Constitution and U.S. Constitution.

�The same limitations on the Attorney General's subpoena power would apply to investigations undertaken to enforce the Act.

Preemption of Firearm Permit Regulation

�The bill would specify that regulation of firearm permits would be under the exclusive jurisdiction and control of the Attorney General and that cities could not adopt ordinances that address regulation of such permits.

Under existing law, the preemption language applies to licensing and regulation of private detectives and private detective agencies.

Qualifications for Obtaining a Firearm Permit

�The need to carry a firearm would have to be stated rather than demonstrated.

�The Attorney General's authority to request from firearms permit applicants information not specified in statute would be repealed.

�The bill would specifically authorize issuance of permits to carry concealed shotguns or pistol-caliber carbines in addition to those firearms currently authorized.

Under existing law firearms permits authorize detectives to carry concealed pistols, revolvers capable of firing fixed cartridge ammunition, or any other weapon that expels a projectile by the action of an explosive and which is designed to be operated with one hand.

�In addition to limitations in existing law, the bill would prohibit issuance of firearm permits to a person who is impaired by reason of mental condition, deficiency, or disease.

Under existing law, a firearm permit cannot be issued to a person who has been declared by a court to be incapacitated or mentally ill and who has not been restored to capacity or mental health.

�Training in the handling of firearms and the lawful use of force would have to be completed annually.

Firearm Permit and Badge

�The bill would require that authorization to carry a concealed firearm be indicated on the private detective license rather than on a separate identification card.

�The bill would authorize licensees who have a firearm permit to use a firearm permit identification badge, but no other badge could be used.

Under existing law, private detectives are not allowed to use badges.

�The firearm permit badge would have to be silver and include the phrase "licensed private detective."

Required Report of Discharge of Firearm

�The bill would give licensees 72 hours to make an initial report of the discharge of a firearm to the Attorney General. A written report would have to be made within 48 hours of the initial report. Firearms training would be added to test firing and target practice as exemptions from the reporting requirement.

Under existing law, a written report must be made to the Attorney General within 24 hours of the discharge of a firearm for any purpose other than for test firing or target practice.

Disciplinary Action Against a Firearm Permitee

�Firearm permits would have to be suspended or revoked if the private detective's license is suspended or revoked.

�Firearm permits could be censured, limited, conditioned, suspended, or revoked for the same reasons that those actions could be taken against a detective license and for using a firearm inconsistent with the lawful use of force.

�Misuse of a firearm permit badge would result in administrative proceedings for both the permit and the detective license. The Attorney General could recommend criminal prosecution for impersonation of a law enforcement officer.

�The Attorney General would have to reissue the detective license of a licensee whose firearm permit has been revoked or expired. The new license would have to indicate that the licensee was not permitted to carry a concealed firearm. If a firearm permit is limited or conditioned, the Attorney General would be authorized, but not required, to reissue a license stating the condition or limitation.

Firearm Trainers

�Only individuals could obtain a firearm trainer certificate.

Under existing law, an organization can receive a firearm trainer certificate if all officers, directors, partners, and associates meet the statutory requirements.

Firearms Trainers' Knowledge Base

�Firearm trainers would have to be licensed private detectives with sufficient knowledge of firearms training and the lawful use of force, in addition to knowledge of the private detective business, to be a suitable trainer.

Under existing law, firearm trainers must be of good character and reputation and have knowledge of the private detective business.

Other Provisions

�Existing rules and regulations of the Attorney General regarding private detectives would be revoked.

�The bill would state that rules and regulations adopted under the Act could not infringe upon or conflict with a licensee's or applicant's rights to due process and equal protection.

�The existing requirement for a branch office certificate would be repealed.

�The bill would repeal the existing requirement that detectives' vehicles be registered in Kansas.

Background

The bill was requested by the Kansas Association of Private Investigators. Testimony in support of the bill was presented to the House Committee on Federal and State Affairs by several representatives of the Association. Written testimony in support only of the provision that would allow private detectives to use badges for identification was presented to the Committee by the Chiefs of Police from Shawnee, Merriam, and Mission.

The bill was opposed by a representative of the Attorney General.

The House Committee amended the bill to require that firearm permit badges be silver and include the phrase licensed private detective.

Other bills that would amend the private detective licensing statutes include S.B. 322 and H.B. 2267.

The fiscal note prepared by the Division of the Budget states that the Attorney General would need the equivalent of one half-time Assistant Attorney General for six months to oversee the process of implementing the bill and drafting new rules and regulations. However, according to the fiscal note the additional staff time could be absorbed within the agency's current staffing level. The fiscal note also states that the Kansas Bureau of Investigation (KBI) indicated that implementation of the bill would require an additional Office Specialist. The additional expenditure by the KBI was estimated to be $26,873 for FY 1998. The fiscal note was prepared for the introduced version of the bill in 1997 and does not reflect any expenditures that might result from amendments to the bill.

1. *Supplemental notes are prepared by the Legislative Research Department and do not express legislative intent. The supplemental note and fiscal note for this bill may be accessed on the Internet at http://www.ink.org/public/legislative/fulltext-bill.html.