HP1148, LD 1563, item 2, 125th Maine State Legislature , Amendment C "A", Filing Number H-585, Sponsored by

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Amend the bill in section 4 by striking out paragraph B (page 1, lines 30 to 32 in L.D.) and inserting the following:
 
‘B. If the person so convicted is licensed as a ~~private~~professional investigator, suspend for a period of 5 years that person's ~~right as a private investigator~~permit to carry a concealed firearm.’
Amend the bill in section 11 by striking out all of subsection 1-C (page 2, lines 15 and 16 in L.D.) and inserting the following:
 
‘1-C.  Computer forensics.    "Computer forensics" means the use of digital forensic science that involves the examination of digital media to identify, preserve, recover and analyze information related to legal matters.’
Amend the bill in section 14 in subsection 4-A in paragraph F in the last line (page 3, line 9 in L.D.) by striking out the following: "or both" and inserting the following: 'or both,'
Amend the bill by striking out all of section 16 and inserting the following:
‘Sec. 16.  32 MRSA §8103-A  is enacted to read:
§ 8103-A. Board of Licensure of Professional Investigators
 
1.  Establishment.     The Board of Licensure of Professional Investigators, referred to in this chapter as "the board," is established pursuant to Title 5, section 12004-G, subsection 29-D to administer the provisions of this chapter to protect the public by improving the standards relative to the practice of private investigation and to protect the public from unqualified practitioners.
 
2.  Duties.     The board has the following powers and duties:
 
A.  To provide advice regarding rules proposed by the chief;
 
B.  At the request of the chief, to review written examinations for professional investigator applicants;
 
C.  At the request of the chief, to advise the chief on granting, suspending and revoking the licenses of professional investigators;
 
D.  To establish standards governing the safety and conduct of persons licensed under this chapter;
 
E.  To recommend investigations regarding alleged violations of the provisions of this chapter and any rules adopted by the chief; and
 
F.  To provide information to the chief on any matter as the board determines appropriate or necessary.
 
3.  Members.     The board consists of 7 members who must be residents of the State and are appointed by the Governor as follows:
 
A.  Two members of the State Police recommended by the chief;
 
B.  One member recommended by the Attorney General;
 
C.  Three members of the public, with no more than 2 holding a license under this chapter, to be appointed to reflect a wide diversity of private investigation experience. At least one member must be chosen for the member's expertise in operating a private investigation company in this State and must have a minimum of 5 years of experience as a licensed private investigator; and
 
D.  One administrator from a local or county law enforcement agency.
 
4.  Terms; removal.     Terms of the members of the board are for 3 years. The terms are governed by Title 10, section 8009. Members may be removed by the Governor for cause.
 
5.  Meetings; chair; quorum.    The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Four members of the board constitute a quorum.’
Amend the bill in section 18 by striking out all of paragraph A and inserting the following:
 
‘A. A person employed by or on behalf of the ~~State,~~Federal Government, any state or any political subdivision ~~thereof,~~ or ~~any~~ public instrumentality or a Canadian province, while in the performance of ~~his~~the person's official duties;’
Amend the bill in section 24 in paragraph J in the first line (page 5, line 8 in L.D.) by striking out the following: "~~private~~professional" and inserting the following: 'private'
Amend the bill in section 31 in subsection 5 by striking out all of the blocked paragraph (page 6, lines 34 to 38 in L.D.) and inserting the following:
 
‘By affixing the applicant's signature, the applicant certifies that the information in the application provided by the applicant is true and correct ~~and~~, that the applicant understands that an affirmative answer to any of the questions in paragraph E is cause for ~~refusal~~a license to be denied and that any false statement may result in prosecution as provided in section 8114.’
Amend the bill in section 32 in subsection 7-A in paragraph A in the 3rd line from the end (page 7, line 9 in L.D.) by striking out the following: "who has" and inserting the following: 'has earned'
Amend the bill in section 32 in subsection 7-A in paragraph D by striking out all of subparagraph (2) (page 7, lines 31 to 40 and page 8, lines 1 and 2 in L.D.) and inserting the following:
‘
 
(2) Educational experience, including at least:
 
(a) Sixty academic credits of ~~post-secondary~~postsecondary education in a field of study listed in division (b) acquired at an accredited junior college, college or university; ~~or~~
 
(b) An associate degree ~~in law enforcement, based on 2 years of post-secondary instruction, conferred by an established~~acquired at an accredited junior college, college, university or technical college in police administration, security management, investigation, law, criminal justice or computer forensics or other similar course of study acceptable to the chief; ~~and~~or
 
(c) An associate degree in any field of study that is acceptable to the chief; and
Amend the bill in section 34 in §8106 in the first paragraph in the first line (page 8, line 11 in L.D.) by striking out the following: "~~private~~professional" and inserting the following: 'private'
Amend the bill in section 35 in §8107 by striking out all of the first paragraph (page 8, lines 17 to 21 in L.D.) and inserting the following:
‘
Applications for original licenses ~~shall~~must be made to the ~~commissioner in writing~~chief under oath on forms prescribed by ~~him with respect to the requirements of section 8105~~the chief demonstrating the qualifications required under this chapter. The application ~~shall~~must be accompanied by the fee required under section 8117~~,~~ and by a certification~~,~~ by each of 3 reputable citizens of the State~~,~~ of the following:’
Amend the bill by striking out all of section 37 and inserting in its place the following:
‘Sec. 37. 32 MRSA §8109, as amended by PL 2003, c. 620, §1, is further amended to read:
§ 8109.Renewal of license
Each ~~private~~professional investigator's license is valid for an initial term of 2 years ~~and is, unless~~. Unless the license is revoked ~~or suspended~~, ~~renewable~~the licensee may apply to renew the license every 4 years after the initial term.’
Amend the bill in section 39 in subsection 3 in the 2nd line (page 9, line 13 in L.D.) by striking out the following: "Within" and inserting the following: 'To qualify for a license as a professional investigator, within'
Amend the bill by inserting after section 39 the following:
‘Sec. 40.  32 MRSA §8110, sub-§4  is enacted to read:
 
4.  Sponsor.    An investigative assistant may engage in the business of private investigating only when sponsored by a professional investigator licensed under this chapter.’
Amend the bill in section 40 in §8110-A in the first paragraph in the last line (page 9, line 20 in L.D.) by striking out the following: "as long as" and inserting the following: 'subject to the following'
Amend the bill in section in §8110-A in subsection 2 in the first line (page 9, line 23 in L.D.) by striking out the following: "duly" and inserting the following: '~~duly~~'
Amend the bill in section 41 in §8110-B by striking out all of subsection 4 (page 10, lines 9 to 12 in L.D.)
Amend the bill by striking out all of section 43 and inserting the following:
‘Sec. 43. 32 MRSA §8113, as amended by PL 2011, c. 161, §§1 to 3, is further amended to read:
§ 8113.Refusal; suspension; revocation; grounds
~~The commissioner~~In accordance with the Maine Administrative Procedure Act, the chief may~~, after notice of an opportunity for hearing in conformance with the provisions of the Maine Administrative Procedure Act, Title 5, chapter 375, subchapter IV,~~ refuse to issue or renew a license~~. The District Court may~~, suspend or revoke the license of any person licensed under this chapter~~. The following are grounds for an action to refuse to issue, suspend, revoke or refuse to renew the license of a person licensed under this chapter~~, impose probationary conditions, fines or costs of hearing and investigation or issue a written warning on the following grounds:
 
1. Fraud or deceit.   The practice of fraud or deceit in obtaining a license under this chapter or in connection with service rendered within the scope of the license issued;
 
2. Conviction of certain crimes.   Conviction of a crime ~~which~~that involves dishonesty or false statement or ~~which~~that relates directly to the practice for which the licensee is licensed or ~~which~~that is enumerated in this chapter~~,~~ or conviction of any crime for which incarceration for one year or more may be imposed;
 
3. Violation of chapter or rule.   Any violation of this chapter or any rule adopted by the ~~commissioner~~chief;
 
4. Aiding or abetting unlicensed practice of private investigation.   Aiding or abetting the practice of private investigation by a person not duly licensed under this chapter and who represents ~~himself~~ to ~~be~~others that the person is duly licensed;
 
5. Failure to maintain bond and insurance.   Failure to maintain a bond and insurance as required by section 8111;
 
6. Incompetence.   Incompetence in the practice for which ~~he~~the person is licensed. A licensee ~~shall be deemed~~is considered incompetent in the practice if the licensee has:
 
A. Engaged in conduct ~~which~~that evidences a lack of ability or fitness to discharge the duty owed by the licensee to a client or the general public; or
 
B. Engaged in conduct ~~which~~that evidences a lack of knowledge~~,~~ or an inability to apply principles or skills to carry out the practice for which ~~he~~the person is licensed;
 
7. Employment of prohibited person.   Employment, in connection with a private investigation business, in any capacity, of any person who has been convicted of a crime punishable by imprisonment for one year or more or any former licensee whose license has been revoked;
 
8. Representations that licensee is sworn peace officer.   Representation by the licensee that suggests, or that would reasonably cause another person to believe, that the licensee is a sworn peace officer of this State, any political subdivision of this State, any other state or ~~of~~ the Federal Government; or
 
9. Unpermitted contact with a child.   Contact or communication with a child who has not attained 14 years of age regarding a private investigation if that contact or communication includes conduct with the intent to harass, torment, intimidate or threaten a child.
 
10.  Misstatement.     Intentionally or knowingly making a material misstatement in filing an application for a license or renewal of a license;
 
11.  Violation of standards of acceptable professional conduct.     A violation of the standards of acceptable professional conduct adopted by rule by the chief; or
 
12.  Cause for refusal.     Committing an act that would have been cause for the refusal to issue a license had the act occurred and been known to the chief at the time of issuance of a license.
The chief may reconsider, modify or reverse probation, suspension or other disciplinary action.’
Amend the bill in section 44 in §8113-A in subsection 2 in the 2nd line (page 12, line 22 in L.D.) by inserting after the following: "testing" the following: 'of a licensee'
Amend the bill by striking out all of section 45 and inserting in its place the following:
‘Sec. 45. 32 MRSA §8114, as corrected by RR 2003, c. 2, §98, is amended to read:
§ 8114.Unlawful acts
A person is guilty of improper conduct in private investigation if the person commits any of the acts described in this section. Improper conduct in private investigation is a Class D crime.
 
1. Acting without license; false representation.  ~~It is a Class D crime for any person knowingly to commit any of the following~~A person acts without a license or commits false representation if that person intentionally or knowingly:
 
A. ~~Subject to~~Except as provided in section 8104, ~~to act~~acts as a ~~private~~professional investigator without a valid license;
 
B. ~~To falsely represent~~Falsely represents that ~~he~~the person is the holder of a valid license;
 
C. ~~To falsely represent~~Falsely represents that any person in ~~his~~the person's employ is a ~~private~~professional investigator or investigative assistant; or
 
D. ~~To make~~Makes any false statements or material omission in any application filed with the ~~commissioner~~chief.
 
2. Representation as peace officer; employment of certain convicted persons; failure to surrender license.  ~~It is a Class D crime for a~~A licensed ~~private~~professional investigator or investigative assistant ~~knowingly to commit any of the following acts~~commits misrepresentation as a peace officer, employment of a certain convicted person or failing to surrender if that professional investigator or investigative assistant intentionally or knowingly:
 
A. ~~To make~~Makes any representation, including, but not limited to, presentation of a badge, that suggests, or that would reasonably cause another person to believe, that the licensed ~~private~~professional investigator or investigative assistant is a sworn peace officer of this State, any political subdivision ~~thereof~~of this State, ~~or~~ any other state or ~~of~~ the Federal Government;
 
B. ~~To employ~~Employs, in connection with a private ~~investigator~~investigation business, in any capacity, ~~any~~a former licensee whose license has been revoked or a person who has been convicted of ~~a felony or any former licensee whose license has been revoked; or~~:
 
(1) A crime in this State that is punishable by imprisonment for a term exceeding one year or more;
 
(2) A crime under the laws of the United States that is punishable by imprisonment for a term exceeding one year;
 
(3) A crime under the laws of another state that, in accordance with the laws of that jurisdiction, is punishable by a term of imprisonment exceeding one year. This subparagraph does not include a crime under the laws of another state that is classified by the laws of that state as a misdemeanor and is punishable by a term of imprisonment of 2 years or less; or
 
(4) A crime under the laws of another state that, in accordance with the laws of that jurisdiction, does not come within subparagraph (3) but is elementally substantially similar to a crime in this State that is punishable by a term of imprisonment for one year or more; or
 
C. ~~To fail~~Fails or ~~refuse~~refuses to surrender ~~his~~the professional investigator's license to the ~~commissioner~~chief following revocation or suspension.
 
3. Employing unlicensed individual.  ~~It is a Class D crime for a~~A licensed ~~private~~professional investigator commits improper employment conduct if the professional investigator intentionally or knowingly ~~to employ or engage~~employs or engages any other person to act as a ~~private~~professional investigator unless the person so employed or engaged is licensed as a ~~private~~professional investigator or investigative assistant.
 
~~4~~.  ~~Failure of investigative assistant to return equipment.~~     ~~It is a Class D crime for a licensed investigative assistant knowingly to fail to return immediately on demand, or within 7 days of termination of his employment any item of equipment issued to him by his employer.~~
 
5. Other unlawful acts.  ~~It is a Class D crime for a~~A person licensed under this chapter or any person employed by ~~him~~the person commits improper investigative conduct if that person intentionally or knowingly ~~to commit any of the following acts~~:
 
A. ~~To incite~~Incites, ~~encourage~~encourages or ~~aid~~aids any person who has become a party to any strike to commit any unlawful act against any person or property;
 
B. ~~To incite~~Incites, ~~stir~~stirs up, ~~create~~creates or ~~aid~~aids in the inciting of discontent or dissatisfaction among the employees of any person with the intention of having them strike;
 
C. ~~To interfere~~Interferes with or ~~prevent~~prevents lawful and peaceful picketing during strikes;
 
D. ~~To interfere~~Interferes with, ~~restrain~~restrains or ~~coerce~~coerces employees in the exercise of their right to form, join or assist any labor organization of their ~~own~~ choosing;
 
E. ~~To interfere~~Interferes with or ~~hinder~~hinders lawful or peaceful collective bargaining between employers and employees;
 
F. ~~To pay, offer~~Pays or offers to give any money, gratuity, consideration or other thing of value, directly or indirectly, to any person for any verbal or written report of the lawful activities of employees in the exercise of their right to organize, form or assist any labor organization and to bargain collectively through representatives of their ~~own~~ choosing;
 
G. ~~To advertise~~Advertises for, ~~recruit~~recruits, ~~furnish~~furnishes or ~~replace~~replaces or ~~offer~~offers to furnish or replace for hire or reward, within or outside the State, any skilled or unskilled help or labor, armed guards, other than armed guards employed for the protection of payrolls, property or premises, for service upon property ~~which~~that is being operated in anticipation of or during the course of a strike;
 
H. ~~To furnish~~Furnishes armed guards upon the highways for persons involved in labor disputes;
 
I. ~~To furnish~~Furnishes or ~~offer~~offers to furnish to employers or their agents any arms, munitions, tear gas implements or any other weapons;
 
J. ~~To send~~Sends letters ~~of~~or literature to employers offering to eliminate labor unions; or
 
K. ~~To advise~~Advises any person of the membership of an individual in a labor organization for the purpose of preventing that individual from obtaining or retaining employment.’
Amend the bill in section 46 in §8114-A in subsection 1 in the 4th line (page 14, line 23 in L.D.) by striking out the following: "shall" and inserting the following: 'may'
Amend the bill in section 46 in §8114-A by striking out all of subsection 3 (page 15, lines 1 and 2 in L.D.) and inserting the following:
 
‘3.  Aggrieved by disciplinary action.    A licensee aggrieved by a disciplinary action of the chief may bring an appeal in accordance with the Maine Administrative Procedure Act.’
Amend the bill in section 48 in §8116 by striking out all of subsection 3 (page 15, lines 31 to 35 in L.D.) and inserting the following:
 
‘3. Rules.   The ~~commissioner shall~~chief with the advice of the board may adopt ~~all~~ rules necessary to administer this chapter, including, but not limited to, ~~fixing application and license fees~~rules regarding standards of acceptable professional conduct and ~~establishing a~~ training ~~requirement~~requirements for and sponsorship of investigative assistants. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.’
Amend the bill by striking out all of sections 52 to 54 and inserting the following:.
‘Sec. 52.  32 MRSA §8122  is enacted to read:
§ 8122. Proof of valid professional investigator's license
A person or company soliciting work or employment as a professional investigator shall provide proof to any client that the professional investigator holds a valid professional investigator's license before entering into any agreement or contract to conduct investigations.
Sec. 53.  32 MRSA §8123  is enacted to read:
§ 8123. Violation
Except when a criminal penalty is otherwise provided, a person who violates this chapter or a rule adopted pursuant to this chapter commits a civil violation for which a fine of not less than $1,000 may be adjudged.’
Amend the bill by relettering or renumbering any nonconsecutive Part letter or section number to read consecutively.
 
SUMMARY
This amendment specifies that the rule-making authority in the Professional Investigators Act is delegated to the Chief of the State Police, with the advice of the Board of Licensure of Professional Investigators.
The amendment clarifies that the Chief of the State Police does not require authorization of the board to act, but authorizes the board to provide information to the chief on any matter as it determines appropriate.
The amendment clarifies and conforms violations and penalties language to proper drafting standards.
The amendment also makes technical changes and corrections.
FISCAL NOTE REQUIRED
(See attached)

HP1148, Filing Number H-585, LR 799, item 2,First Regular Session - 125th Maine Legislature, page