Temporary Permits

Reply to:Douglas A. Johnston State Agencies Section

(919) 716-6800

FAX: 716-6755 Internet:djohn@mail.jus.state.nc.us

November 22, 1999

Mr. Wayne Woodard Administrator, Private Protective Services Board

P.O. Box 29500 3320 Old Garner Road Raleigh, North Carolina 27626-0500

RE: Advisory Opinion; Temporary permits; Delegation of authority to administrator and to others; N.C.G.S. Chapter 74C

Dear Mr. Woodard:

ThePrivate ProtectiveServicesBoard hasrequestedtheAttorneyGeneral’s opinionabout theissuanceoftemporary private investigatortraineepermits.YouaskfortheAttorneyGeneral’s opinion on three issues:

1. Whether the Board has the authority to issue a temporary private investigator trainee permit.

2. Whether the Board may delegate authority to the Administrator to issue a temporary private investigator trainee permit.

3. Whether the Board may delegate authority to a supervisingprivate investigator to conduct a criminal background check, to verify previous employment, to check character references and to submit a report that is stapled to the request for temporary private investigator trainee permit.

For the reasons which follow, the answers to all questions are “No.”

The Private Protective Services Board meets every sixty (60) days. When the Board meets, its screening committee reviews applications for licenses and permits, including private investigator trainee permits. A private investigator trainee applicant, who applies immediately after a Board meeting, must wait sixty days until the next Board meeting before beginning work. Industryrepresentativesreportthatmanyqualifiedindividuals arebeinglosttootherprofessions because of the waiting period.

In response to this concern, the Private Protective Services Board has permitted the Administrator of the Board to issue a temporary private investigator trainee permit.

The board, also, has permitted a supervising private investigator to conduct a criminal background check, verify previous employment, check character references and then put those findings in a report that is stapled to the request for a temporary private investigator trainee permit.

Upon completion of the background check and submission of the report by the supervisingprivate investigator,theAdministratorissuesatemporary private investigatortrainee permit if the Administrator finds that the applicant meets the standards for favorable recommendation/actionbythescreeningcommittee.Thepermit expiresthirty (30)daysafterthe date of the next Board meeting. Otherwise, the Administrator denies the temporary application and presents it to the screening committee for its review and for action at the Board’s next meeting.

This process is undertaken pursuant to the following statutes and administrative rules:

1. An applicantwith less than 3,000 hours of experience within the past 10 years may apply for a private investigators trainee permit. G.S. § 74C-5(2), G.S. § 74C-8(d), 12 NCAC 7D .0401(a)(1).

2. Any person desiring to become a private investigator in North Carolina must submit a verified application to the Board. G.S. § 74C-2; G.S. § 74C-3(a)(8).

3. Uponreceiptofanapplication,theBoardshallconductabackgroundinvestigationduring thecourseofwhichtheapplicantshallberequiredtoshowthathemeets certainspecified qualifications. G.S. § 74C-8(d).

1. Accompanying a trainee permit application only, an applicant must submit a notarized statement signed by the applicant and his employer, stating that the trainee applicant will at all times work with and under the direct supervision of a licensed private investigator.

2. G.S. § 74C-8(b)(7).
4. Pursuant to G.S. § 74C-5(2), the Board has adopted 12 NCAC 7D § .0200 to address specific requirements for trainee permits.

5. Pursuant to G.S. § 74C-5(2), the Board has adopted 12 NCAC 7D § .1100 to address specific requirements for training and supervising private investigator associates (trainees).

Specific statutory authority fortheAdministratorto issuea temporary permit exists in the following situations:

1. G.S. § 74C-9(d) -the Administrator may issue a temporary branch office permit;

2. G.S.§74C-11(d)and12NCAC7D.0704 -theAdministratormayissueunarmed registration cards upon receipt of all information required to be submitted;

3. G.S. § 74C-13(f) -the Administrator may approve a security company’s employment of an armed security guard for 30 days pending completion of the firearms training; and

4. G.S. § 74C-18(b) -the Administrator may issue a temporary permit to a nonresident who is validly licensed in another state and will be entering this state incidental to a specific case originating in another state.

The cardinal rule of statutory construction is that a statute must be construed to effectuate the intent of the legislature. State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975). In order to discern the legislative intent, courts look to the language of the statute, its spirit and its purpose. State ex rel. North Carolina Milk Com. v. National Food Stores, Inc., 270 N.C. 323, 154 S.E.2d 548 (1967). The intent of the legislature must be found from the language of the act, its legislative history and the circumstances surrounding its adoption. Id. Words are generally given their ordinary meaning, and courts will construe words in accordance with their meaning at the time of enactment. Southern Bell Tel. & Tel. Co. v. Clayton, 266 N.C. 687, 147 S.E.2d 195 (1966).

In light of these facts and the relevant statutory provisions and case law, our opinions on the three issues presented in your letter follow.

1. May the Board issue temporary private investigator trainee permits?

No. Additional legislation would be required.

It is clear that the Board has no authority to issue “temporary” permits before the applicant’s qualifications have been reviewed and determined to be satisfactory for the permit sought. To permit otherwise would defeat the essential purpose of the licensing statute.

In contrast, it is normally within the power of a licensing agency to issue provisional, conditional permits after the applicant’s qualifications have been reviewed and determined to be satisfactory for the permit sought. The Board’s authority to “approve individual applicants to be licensed or registered according to this Chapter” includes the authority to set conditions upon a license. G.S. § 74C-5(5). This practice is so commonly accepted in licensing law generally as to be clearly within the intent of the legislature in establishing the process for licensing here.

However, whether those conditions may include limitations upon the duration of a license, so as to allow issuance of a “temporary” permit, presents another question. The Board has specific statutory authority for “temporary” licenses in other areas under its jurisdiction. Statutory authority for the Administrator to issue a temporary permit exists in four specific situations, as set out above.

The rule of construction that “mention of one thing implies the exclusion of another”, expressio unius est exclusio alterius, would normally apply unless the result would clearly run counter to legislative intent. Here, it does not appear that application of the rule of construction would be manifestly against legislative intent. Consequently, the rule applies and no authority for other “temporary” licenses may be implied. Specific legislation would be required to authorize a temporary permit in the circumstances you describe.

2. May the Board delegate authority to the Administrator to issue a temporary private investigator trainee permit?

No.

Because of our conclusion in question #1, there is currently no authority to issue temporary permits, and thus no authority that can be delegated.

In addition, although a licensing board may ordinarily delegate a duty to an administrativeofficerwithappropriatestandardsandguidelines(See, AmJur.2d,Administrative Law, s. 63 and following), the Private Protective Services Act specifically provides that upon completion of the background investigation and of an exam, if any, “the Administrator shall submit to the Board the application and his recommendations. The Board shall determine whether to approve or deny the application for a license.” G.S. § 74C-8(f). (Emphasis added.)

The specificity with which the legislature set out the process for acting upon applications leaves little room for implying to the Board authority to delegate to the Administrator the power to approve any license. The Administrator may only make recommendations. The Act expressly states that the Administrator’s duties shall be to “administer the directives contained in this Chapter and the rules promulgated by the Board to implement this Chapter and to carry out the administrative duties incident to the functioning of the Board….” G.S. § 74C-6.

Consequently,should legislativeauthority forissuanceofatemporary private investigator trainee permit be sought, it would also be necessary to have further legislative action to enable the board to delegate its authority for temporary permits to the Administrator.

3. May the Board delegate to a supervising private investigator the authority to conduct a criminalbackgroundcheck,verifypreviousemployment, checkcharacterreferencesandsubmit a report that is stapled to the request for a temporary permit?

No.

The Board may not delegate any duty incident to the functioning of the Board, including checking an applicant’s criminal, character, and employment background, to anyone other than the Administrator. The Act expressly states that the Administrator’s duties shall be to “administer the directives contained in this Chapter and the rules promulgated by the Board to implement this Chapter and to carry out the administrative duties incident to the functioning of the Board….” G.S. § 74C-6.

Nonetheless, the Administrator may make such delegation to staff or private persons, provided the Administrator retains final reviewing authority and exercises close scrutiny of the supervising private investigator. Extreme caution is required when the delegation is made to private partieswhose objectivity maybequestionedongroundsofconflictofinterest. Am Jur.2d, Administrative Law, s. 63.

We hope this is helpful. Should you require anything further, please contact us.

Very truly yours,

Ann Reed Senior Deputy Attorney General

Douglas A. Johnston

Special Deputy Attorney General DAJ/de