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Introduced Version House Bill 4512 History

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H. B. 4512

 

(By Delegate Varner, Cann, Swartzmiller, Lawrence, Morgan, Marshall and Stephens)

[Introduced February 13, 2012; referred to the

Committee on Government Organization then Finance.]

 

 

 

A BILL to amend and reenact §30-18-1, §30-18-2, §30-18-3, §30-18-4, §30-18-5, §30-18-6, §30-18-7, §30-18-8, §30-18-9, §30-18-10, §30-18-11, §30-18-12 and §30-18-13 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto nine new sections, designated §30-18-14, §30-18-15, §30-18-16, §30-18-17, §30-18-18, §30-18-19, §30-18-20, §30-18-21 and §30-18-22, all relating to private investigative and security services; providing unlawful acts; providing definitions; creating the West Virginia Board of Private Security and Investigators; providing for the appointment of members of the board; providing powers and duties of the board; providing rule-making authority to the board; creating a special revenue account; providing eligibility requirements for a license to conduct a private investigation business; providing requirements for employees conducting a private investigation under a firm license; providing eligibility requirements to be licensed to conduct a security guard business; providing requirements for employees conducting a security guard business under a firm license; providing for the renewal of a license; providing for complaints and investigation procedures by the board; providing procedures for hearings and the right to appeal; providing for judicial review; providing criminal proceedings and penalties; providing that a single act is evidence of practice; providing for an action for damages for injury sustained by a violation of this article; providing a grandfather clause for persons licensed under this article on July 1, 2012; providing for the transition from the Secretary of State to the board; and providing for a report to the Joint Committee on Government Organization.

Be it enacted by the Legislature of West Virginia:

    That §30-18-1, §30-18-2, §30-18-3, §30-18-4, §30-18-5, §30-18-6, §30-18-7, §30-18-8, §30-18-9, §30-18-10, §30-18-11, §30-18-12 and §30-18-13 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto nine new sections, designated §30-18-14, §30-18-15, §30-18-16, §30-18-17, §30-18-18, §30-18-19, §30-18-20, §30-18-21 and §30-18-22, all to read as follows:

ARTICLE 18. PRIVATE INVESTIGATIVE AND SECURITY SERVICES.

§30-18-1. Unlawful acts.

    (a) It is unlawful for any person, business or firm to practice or offer to practice private detective, investigative or security guard services in this state without a license issued under the provisions of this article, or advertise or use any title or description tending to convey the impression that they are a private detective, private investigator, security guard or security guard firm unless the person has been duly licensed under the provisions of this article, and the license has not expired, been suspended or revoked.

    (b) A business entity may not render any service or engage in any activity which, if rendered or engaged in by an individual, would constitute the practice of private investigator, private detective or security guard services, except through a licensee.

    (c) A person who is not licensed under this article as a private investigator, private detective, or security guard firm may not characterize himself or herself as "private detective", "private investigator", "private detective or investigative firm", "security guard", "security guard business" or "security guard firm", notwithstanding the provisions of paragraph (B), subdivision (6), section (3) and paragraph (B), subdivision (8), section (3) of this article.

§30-18-2. Applicable law.

    The professions licensed under the provisions of this article are subject to article one of this chapter, the provisions of this article, and any rules promulgated hereunder.

§30-18-3. Definitions.

    For the purposes of this article, except where the context clearly requires otherwise, the following terms shall have the meanings ascribed to them:

    (1) "Applicant" means a person who files a completed application as required by sections three and six nine and twelve of this article to be licensed to conduct a private investigation business or a security guard business. When a person other than a natural person is applying for a license, the applicant shall be the person whose qualifications are presented to meet the experience or education requirements of sections two or five eight or eleven of this article.

    (2) "Board" means the West Virginia Board of Private Security and Investigators.

    (2) (3) "Private investigation business" means the business of doing an investigation or investigations, or surveillance, for hire, reward or any other type of remuneration, to obtain information about:

    (A) A crime which is alleged to have occurred or is threatened to occur;

    (B) The habits, activities, conduct, movements, location, associations, transactions, reputation or character of any person;

    (C) The credibility of witnesses or other persons;

    (D) The location or recovery of lost or stolen property;

    (E) The causes or origins of any fire, accident or injury to any property, real or personal, or to identify or locate any person or persons responsible for any such fire, accident or injury;

    (F) The truth or falsity of any statement or representation, whether written or oral, or of any type of depiction;

    (G) Any matters which constitute evidence or which may lead to the discovery of evidence to be used before any judicial or quasijudicial tribunal, including, but not limited to, civil or criminal courts, administrative agencies, investigating committees, or boards of award or arbitration;

    (H) The whereabouts of any missing or kidnapped person;

    (I) The affiliation, connection or relationship of any person with any corporation or other business entity, union, organization, society or association, or with any official, member or representative thereof;

    (J) Any person or persons seeking employment in the place of any employee or employees who have quit work by reason of any strike; or

    (K) The conduct, honesty, efficiency, loyalty or activities of employees, agents, contractors and subcontractors.

    (3) (4) "Firm license" means the license held by a person whom the Secretary of State board has authorized to operate a private detective investigative firm or security guard firm after such the person has filed and completed an application pursuant to the application requirements contained in sections three and six nine or twelve and has satisfied the eligibility requirements contained in sections two or five eight or eleven.

    (4) (5) "Person" means a natural person, a group of persons or individuals acting individually or as a group, a corporation, company, partnership, association, society, firm, or any business organization or entity organized or existing under the laws of this or any other state or country;

    (5) (6) (A) "Private detective" or "private investigator" means a person who is licensed pursuant to the provisions of this article to conduct a private investigation business, as defined in subdivision (2) (3) of this section, and who conducts such the business individually and independently from any private detective or investigative firm;

    (B) "Private detective" or "private investigator" does not include:

    (i) Any individual while acting as an adjuster for an insurance company or companies;

    (ii) Individuals employed exclusively and regularly by only one employer in connection with the affairs of such employer only;

    (iii) A officer guard or employee of the United States, or any law-enforcement officer guard of this state or any political subdivision thereof, while such officer guard or employee is engaged in the performance of his official duties or while working for a private employer in his off-duty hours;

    (iv) Attorneys or counselors-at-law or any employee or representative of such attorney or counselor;

    (v) Any corporation duly authorized by this state to operate central burglar or fire alarm protection business; or

    (vi) Any investigator of crime appointed by a prosecuting attorney of a county pursuant to the provisions of section two, article four, chapter seven of this code.

    (6) (7) "Private detective or investigative firm" means any private detective agency or business or any investigative agency or business that is operated by a licensed private detective or investigator and which employs one or more other persons who actually conduct the private investigation business as defined in subdivision (2) (3) of this section.

    (7) (8) (A) "Security guard" means a person who is licensed pursuant to the provisions of this article to conduct a security guard business, as defined in subdivision (8) (9) of this section, and who conducts such the business individually and independently from a security guard firm.

    (B) "Security guard" does not include a person who is employed exclusively and regularly by only one employer in connection with the affairs of such employer only, or a person who is otherwise hereinafter excluded from the requirements of this article;

    (8) (9) (A) "Security guard business" means the business of furnishing, for hire, reward or other remuneration, watchmen, guards, bodyguards, private patrolmen or other persons, to:

    (i) Protect property, real or personal, or any person;

    (ii) To prevent theft, unlawful taking, misappropriation or concealment of goods, wares or merchandise, money, bonds, stocks, notes or other valuable documents, papers and articles of value; or

    (iii) To furnish for hire, guard dogs or armored motor vehicle security services, in connection with the protection of persons or property;

    (B) "Security guard business" does not include any activities or duties for which it is necessary to be trained and certified as a law-enforcement guard in accordance with the provisions of article twenty-nine, chapter thirty of this code.

    (9) (10) "Security guard firm" means any security guard agency or business that is operated by a licensed security guard and which employs one or more other persons who actually conduct a security guard business as defined in subdivision (8) (9) of this section.

§30-18-4. West Virginia Board of Private Security and Investigators.

    (a) The West Virginia Board of Private Security and Investigators is hereby created. There are nine members of the board who shall be appointed by the Governor beginning on July 1, 2012, and shall serve until their respective terms expire or until their successors have been appointed and qualified. Of the members first appointed, three shall serve a term of one year, three shall serve a term of two years, and three shall serve a term of three years.

    (b) To be effective July 1, 2012, the Governor shall appoint to the board, by and with the advice and consent of the Senate, the following:

    (1) Two persons who are either a "private detective" or "private investigator" and licensed pursuant to the provisions of this article to conduct a private investigation business; and

    (2) Two persons who are a "security guard business" and licensed pursuant to the provisions of this article; and

    (3) Two persons who possess a combined "private detective" or "private investigator" and "security guard business" license pursuant to the provisions of this article;

    (4) One person who is a member of the State Bar;

    (5) The Secretary of Military Affairs and Public Safety, or his or her designee; and

    (6) One citizen who does not perform any services related to the practice of the professions regulated under the provisions of this article or have a financial interest in any of the professions.

    (c) After the initial appointment term, the term for members of the board shall be for three years. All appointments to the board shall be made by the Governor by and with the advice and consent of the Senate.

    (d) Each member of the board must be a resident of this state during the appointment term.

    (e) A member may not serve more than three consecutive full terms. A member may continue to serve until a successor has been appointed and has qualified.

    (f) A vacancy on the board shall be filled by appointment by the Governor for the unexpired term of the member whose office is vacant and the appointment shall be made within sixty days of the vacancy.

    (g) The Governor may remove any member from the board for neglect of duty, incompetency or official misconduct.

    (h) A licensed member of the board immediately and automatically forfeits membership to the board if his or her license to practice is suspended, revoked or expired.

    (i) Any member of the board immediately and automatically forfeits membership to the board if he or she is convicted of a felony under the laws of any jurisdiction or becomes a nonresident of this state.

    (j) The board shall elect annually one of its members as chairperson who serves at the will of the board.

    (k) Each member of the board is entitled to compensation and expense reimbursement in accordance with article one of this chapter.

    (l) A majority of the members of the board constitutes a quorum.

    (m) The board shall hold at least two meetings annually. Other meetings may be held at the call of the chairperson or upon the written request of four members, at the time and place as designated in the call or request.

    (n) Prior to commencing his or her duties as a member of the board, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state.

§30-18-5. Powers and duties of the board.

    (a) The board has all the powers and duties set forth in this article, by rule, in article one of this chapter and elsewhere in law.

    (b) The board shall:

    (1) Establish requirements for licenses and permits;

    (2) Establish procedures for submitting, approving and rejecting applications for licenses;

    (3) Determine the qualifications of any applicant for licenses;

    (4) Prepare, conduct, administer and grade examinations for licenses;

    (5) Determine the passing grade for the examinations; 

    (6) Maintain records of the examinations the board or a third party administers, including the number of persons taking the examinations and the pass and fail rate;

    (7) Investigate alleged violations of the provisions of this article, legislative rules, orders and final decisions;

    (8) Conduct disciplinary hearings of persons regulated;

    (9) Determine disciplinary action and issue orders;

    (10) Institute appropriate legal action for the enforcement of the provisions of this article;

    (11) Maintain an accurate registry of names and addresses of all licensees;

    (12) Create a photo identification card for licensees;

    (13) Keep accurate and complete records of its proceedings, and certify the same as may be necessary and appropriate;

    (14) Establish the continuing education requirements for professional licensees;

    (15) Issue, renew, combine, deny, suspend, revoke or reinstate licenses and permits;

    (16) Establish a fee schedule;

    (17) Hire, discharge, establish the job requirements and fix the compensation of the executive secretary;

    (18) Propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article; and

    (19) Take all other actions necessary and proper to effectuate the purposes of this article.

    (c) The board may:

    (1) Contract with third parties to administer and grade the examinations required under the provisions of this article;

    (2) Sue and be sued in its official name as an agency of this state; and 

    (3) Confer with the Attorney General or his or her assistant in connection with legal matters and questions.

§30-18-6. Rulemaking.

    The board may promulgate emergency rules and propose rules for legislative approval, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

    (1) Standards and requirements for licenses;

    (2) Procedures for examinations and reexaminations;

    (3) Requirements for third parties to prepare and/or administer examinations and reexaminations;

    (4) Educational and experience requirements;

    (5) The passing grade on the examinations;

    (6) Standards for approval of courses and curriculum;

    (7) Procedures for the issuance and renewal of licenses;

    (8) A fee schedule;

    (9) Continuing education requirements for professional licensees;

    (10) The procedures for denying, suspending, revoking, reinstating or limiting the practice of licensees;

    (11) Requirements for inactive or revoked licenses or permits; and

    (12) Any other rules necessary to effectuate the provisions of this article.

§30-18-7. Fees; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the board shall be deposited in a separate special revenue account in the State Treasury designated the “West Virginia Private Security and Investigators Fund”. The fund is to be used by the board for the administration of this article. Except as may be provided in article one of this chapter, the board retains the amount in the special revenue account from year to year. No compensation or expense incurred under this article is a charge against the General Revenue Fund.

    (b) Any amount received as fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§30-18-8. Eligibility requirements for license to conduct the private investigation business.

    (a) In order to be eligible for any license to conduct the private investigation business, an applicant shall:

    (1) Be at least eighteen years of age;

    (2) Be a citizen of the United States or an alien who is legally residing within the United States;

    (3) Not have had any previous license or authorization to conduct a private investigation business or to conduct a security guard business revoked or any application for any such licenses or registrations authorization denied by the appropriate governmental authority in this or any other state or territory jurisdiction;

    (4) Not have been declared incompetent by reason of mental defect or disease by any court of competent jurisdiction unless a court has subsequently determined that the applicant's competency has been restored;

    (5) Not suffer from habitual drunkenness or from narcotics addiction or dependence Not be an alcohol or drug abuser as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code;

    (6) Be of good moral character;

    (7) Have a minimum of two years of experience, education or training in any one of the following areas, or some combination thereof:

    (A) Course work that is relevant to the private investigation business at an accredited college or university;

    (B) Employment as a member of any United States government investigative agency, employment as a member of a state or local law-enforcement investigative agency or service as a sheriff;

    (C) Employment by a licensed private investigative or detective agency for the purpose of conducting the private investigation business;

    (D) Service as a magistrate in this state; or

    (E) Any other substantially equivalent training or experience;

    (8) Not have been convicted of a felony in this state or any other state or territory jurisdiction;

    (9) Not have been convicted of any of the following:

    (A) Illegally using, carrying or possessing a firearm or other dangerous weapon;

    (B) Making or possessing burglar's instruments;

    (C) Buying or receiving stolen property;

    (D) Entering a building unlawfully;

    (E) Aiding an inmate's escape from prison;

    (F) Possessing or distributing illicit drugs;

(G) Any misdemeanor involving moral turpitude or for which dishonesty of character is a necessary element; and

    (10) Not have violated any provisions of section eight one or subdivisions (1) through (7), subsection (g), section fifteen of this article.

    (b) The provisions of this section shall do not prevent the issuance of a license to any person who, subsequent to his or her conviction, shall have has received an executive pardon therefor, removing this disability.

    (b) (c) Any person who qualifies for a private investigator's license shall also be qualified to conduct security guard business upon notifying the Secretary of State board in writing. that the person will be conducting such business

    (c) (d) No person may be employed as a licensed private investigator while serving as magistrate.

§30-18-9. Application requirements for a license to conduct the private investigation business.

    (a) To be licensed to be a private detective, a private investigator or to operate a private detective or investigative firm, each applicant shall complete and file a written application, under oath, with the Secretary of State board and in such form as the secretary may prescribe prescribed by the board.

    (b) On the application each applicant shall provide the following information: The applicant's name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state and any other information requested by the Secretary of State board in order to comply with the requirements of this article.

    (c) In the case of a corporation that is seeking a firm license, the application shall be signed by the president, and verified by the secretary or treasurer of such the corporation and shall specify the name of the corporation, the date and place of its incorporation, the names and titles of all officers, the location of its principal place of business, and the name of the city, town or village, stating the street and number, and otherwise such apt description as will reasonably indicate the location. If the corporation has been incorporated in a state other than West Virginia, a certificate of good standing from the state of incorporation must accompany the application. This information must be provided in addition to that required to be provided by the applicant.

    (d) The applicant shall provide:

    (1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;

    (2) Information about offenses against the laws of West Virginia or any state jurisdiction; and

    (3) Any facts as may be required by the Secretary of State board to show the good character, competency and integrity of the applicant.

    To qualify for a firm license, the applicant shall provide such information for each person who will be authorized to conduct the private investigation business and for each officer guard, member or partner of the firm.

    (e) As part of the application, each applicant shall give the Secretary of State board permission to review the records held by the Division of Public Safety any relevant state or federal agencies for any convictions that may be on record for the applicant.

    (f) For each applicant for a license and for each officer guard, member and partner of the firm applying for a license, the application shall be accompanied by one recent full-face photograph and one complete set of the person's fingerprints.

    (g) For each applicant, the application shall be accompanied by:

    (1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct the private investigation business; and

    (2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State board to offset the cost of license review and criminal investigation background report from the Department of Public Safety West Virginia State Police, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm, or $500 if the applicant is a nonresident of West Virginia or a foreign corporation or business entity: Provided, That the board, pursuant to the rule-making authority in section six of this article, may modify the application and license fees as it deems necessary to conduct the business of the board. The license fee shall be deposited to the General Revenue Fund, and shall be refunded only if the license is denied.

    (h) All applicants for private detective, or private investigator licenses or for private investigation firm licenses shall file in the office of Secretary of State with the board a surety bond. Such bond shall:

    (1) Be in the sum of $2,500 and conditioned upon the faithful and honest conduct of such business by such applicant;

    (2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and approved by the Attorney General of West Virginia with respect to its form;

    (3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

    (i) Any person claiming against the bond required by subsection (h) of this section for a violation of this article may maintain an action at law against any licensed individual or firm and against the surety. The surety shall be liable only for damages awarded under section twelve twenty of this article and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person or firm licensed under this article may not exceed the amount of the bond.

§30-18-10. Requirements for employees conducting the private investigation business under a firm license.

    (a) Any person who has a private detective firm or investigative firm license shall be responsible for supervising any employee or other individual who conducts the private investigation business under the authority of such person's firm license, regardless of whether such the employee or other individual receives compensation for conducting such the business. Such The supervision shall include providing any education or training that is reasonably necessary to ensure compliance with the requirements of this article.

    (b) Any employee or individual who conducts the private investigation business under the authority of a private detective or investigative firm license shall:

    (1) Satisfy the requirements of section two eight of this article, except that such the person need not satisfy the education and training requirements contained in subdivision (7) of section two eight; and

    (2) Authorize the Secretary of State board to review the records held by the Division of Public Safety West Virginia State Police for any convictions that may be on record for such the employee or individual.

    (c) A holder of a private detective or investigative firm license is prohibited from authorizing any individual or employee to conduct a private investigation business if such the individual does not comply with the requirements of this section.

    (d) For every employee or individual who conducts the business of private investigation under the authority of a private detective or investigative firm license, the holder of such the license must maintain a recent full-face photograph and one complete set of fingerprints on file at such the firm's central business location in this state. Upon request, the holder of the firm license must release the photographs and fingerprints to the Secretary of State board.

    (e) The employing firm shall issue identifying credentials for each employee or individual who conducts the business of private investigation under the authority of a private detective or investigative firm license. An employee credential shall include the identification of the firm, bear the signature of the firm license holder to which employed and expire upon the same date as the firm license.

§30-18-11. Eligibility requirements to be licensed to conduct security guard business.

    (a) In order to be eligible for any license to conduct security guard business, an applicant shall:

    (1) Be at least eighteen years of age;

    (2) Be a citizen of the United States or an alien who is legally residing within the United States;

    (3) Not have had any previous license or authorization to conduct a security guard business or to conduct a private investigation business revoked or any application for any such licenses or registrations denied by the appropriate governmental authority in this or any other state or territory any jurisdiction;

    (4) Not have been declared incompetent by reason of mental defect or disease by any court of competent jurisdiction unless said court has subsequently determined that the applicant's competency has been restored;

    (5) Not suffer from habitual drunkenness or from narcotics addiction or dependence Not be an alcohol or drug abuser as these terms are defined in section eleven, article one-a, chapter twenty-seven of this code;

    (6) Be of good moral character;

    (7) Have had at least one year two years verified, full-time employment conducting security guard business or conducting the private investigation business working for a licensed firm or have one year of substantially equivalent training or experience education in any one of the following areas, or some combination thereof:

    (A) Course work that is relevant to the private investigation business at an accredited college or university;

    (B) Employment as a member of any United States government investigative agency, employment as a member of a state or local law-enforcement investigative agency or service as a sheriff;

    (C) Employment by a licensed private investigative or detective agency for the purpose of conducting the private investigation business;

    (D) Service as a magistrate in this state; or

    (E) Any other substantially equivalent training or experience;

    (8) Not have been convicted of a felony in this state or any other state or territory;

    (9) Not have been convicted of any of the following:

    (A) Illegally using, carrying or possessing a firearm or other dangerous weapon;

    (B) Making or possessing burglar's instruments;

    (C) Buying or receiving stolen property;

    (D) Entering a building unlawfully;

    (E) Aiding an inmate's escape from prison;

    (F) Possessing or distributing illicit drugs;

    (G) Any misdemeanor involving moral turpitude or for which dishonesty of character is a necessary element; and

    (10) Not having violated any provision of section eight fifteen of this article.

    (b) The provisions of This section shall may not prevent the issuance of a license to any person who, subsequent to his or her conviction, shall have has received an executive pardon therefor, removing this disability.

§30-18-12. Application requirements for a license to conduct security guard business.

    (a) To be licensed as a security guard or to operate a security guard firm, each applicant shall complete and file a written application, under oath, with the Secretary of State board and in such form as the Secretary may prescribe prescribed by the board.

    (b) On the application, each applicant shall provide the following information: The applicant's name, birth date, citizenship, physical description, military service, current residence, residences for the preceding seven years, qualifying education or experience, the location of each of his or her offices in this state and any other information requested by the Secretary of State board in order to comply with the requirements of this article.

    (c) In the case of a corporation that is seeking a firm license, the application shall be signed by the president, and verified by the secretary or treasurer of such the corporation and shall specify the name of the corporation, the date and place of its incorporation, the names and titles of all officers, the location of its principal place of business, and the name of the city, town or village, stating the street and number, and otherwise such apt description as will reasonably indicate the location. If the corporation has been incorporated in a state other than West Virginia, a certificate of good standing from the state of incorporation must accompany the application. This information shall be provided in addition to that required to be provided the applicant.

    (d) The applicant shall provide:

    (1) Information in the application about whether the applicant has ever been arrested for or convicted of any crime or wrongs, either done or threatened, against the government of the United States;

    (2) Information about offenses against the laws of West Virginia or any state; and

    (3) Any facts as may be required by the Secretary of State board to show the good character, competency and integrity of the applicant.

    To qualify for a firm license, the applicant shall provide such information for each person who would be authorized to conduct security guard business under the applicant's firm license and for each officer, member or partner in the firm.

    (e) As part of the application, each applicant shall give the Secretary of State board permission to review the records held by Department of Public Safety any relevant state or federal agencies for any convictions that may be on record for the applicant.

    (f) For each applicant for a license and for each officer, member and partner of the firm applying for a license, the application shall be accompanied by one recent full-face photograph and one complete set of the person's fingerprints.

    (g) For each applicant, the application shall be accompanied by:

    (1) Character references from at least five reputable citizens. Each reference must have known the applicant for at least five years preceding the application. No reference may be connected to the applicant by blood or marriage. All references must have been written for the purpose of the application for a license to conduct security guard business; and

    (2) A nonrefundable application processing service charge of $50, which shall be payable to the Secretary of State board to offset the cost of license review and criminal investigation background report from the Department of Public Safety West Virginia State Police, along with a license fee of $100 if the applicant is an individual, or $200 if the applicant is a firm, or $500 if the applicant is a nonresident of West Virginia or a foreign corporation or business entity: Provided, That the board, pursuant to the rule-making authority in section six of this article, may modify the application and license fees as it deems necessary to conduct the business of the board. The license fee shall be deposited to the General Revenue Fund, and shall be refunded only if the license is denied.

    (h) All applicants for security guard licenses or security guard firm licenses shall file in the office of Secretary of State with the board a surety bond. Such bond shall:

    (1) Be in the sum of $2,500 and conditioned upon the faithful and honest conduct of such business by such applicant;

    (2) Be written by a company recognized and approved by the Insurance Commissioner of West Virginia and approved by the Attorney General of West Virginia with respect to its form;

    (3) Be in favor of the State of West Virginia for any person who is damaged by any violation of this article. The bond must also be in favor of any person damaged by such a violation.

    (i) Any person claiming against the bond required by subsection (h) of this section for a violation of this article may maintain an action at law against any licensed individual or firm and against the surety. The surety shall be liable only for damages awarded under section twelve twenty of this article and not the punitive damages permitted under that section. The aggregate liability of the surety to all persons damaged by a person or firm licensed under this article may not exceed the amount of the bond.

§30-18-13. Requirements for employees conducting security guard business under a firm license.

    (a) Any person who has a security guard firm license shall be responsible for supervising any employee or other individual who conducts security guard business under the authority of such person's firm license, regardless of whether such employee or other individual receives compensation for conducting such business. Such The supervision shall include providing any education or training that is reasonably necessary to ensure compliance with the requirements of this article.

    (b) Any employee or individual who conducts security guard business under the authority of a firm license shall:

    (1) Satisfy the requirements of section five eleven of this article, except that such the person need not satisfy the prior employment requirements contained in subdivision (7) of section five eleven; and

    (2) Authorize the Secretary of State board to review the records held by the Department of Public Safety West Virginia State Police for any convictions that may be on record for such employee or individual.

    (c) A holder of a security guard firm license is prohibited from authorizing any individual or employee to conduct security guard business if such individual does not comply with the requirements of this section.

    (d) For every employee or individual who conducts security guard business under the authority of a security guard firm license, the holder of such the license must maintain a recent full-face photograph and one complete set of fingerprints on file at such the firm's central business location in this state. Upon request, the holder of the firm license must release the photographs and fingerprints to the Secretary of State board.

§30-18-14. Renewal of license.

    A license granted under the provisions of this article shall be in effect for one year from the date the certificate of license is issued and may be renewed for a period of one year by the Secretary of State board upon application, in such a form as the secretary board may prescribe, and upon payment of the license fee and the filing of the surety bond. At the time of applying for renewal of a license, the Secretary of State board may require any person to provide additional information to reflect any changes in the original application or any previous renewal.

§30-18-15. Complaints; investigations; due process procedure; grounds for disciplinary action.

    (a) The board may, based on credible information, and shall upon the written complaint of any person, cause an investigation to be made to determine whether grounds exist for disciplinary action under this article or the legislative rules.

    (b) Upon initiation or receipt of the complaint, the board shall provide a copy of the complaint to the licensee.

    (c) After reviewing any information obtained through an investigation, the board shall determine if probable cause exists that the licensee has committed a violation of any of the acts contained in sections (8) or (11) of this article or rules promulgated pursuant to this article.

    (d) Upon a finding that probable cause exists that the licensee has violated any of the acts contained in subdivisions (1) through (7), subsection (g) or rules promulgated pursuant to this article, the board may enter into a consent decree or hold a hearing for the suspension or revocation of the license or the imposition of sanctions against the licensee.

    (e) The board may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person regulated by the article.

    (f) The board may sign a consent decree or other legal document.

    (g) The board may, after notice and opportunity for hearing, deny or refuse to renew, suspend or revoke the license of, impose probationary conditions upon or take disciplinary action against, any licensee for any of the following reasons once a violation has been proven by a preponderance of the evidence:

    (1) Obtaining a license by fraud, misrepresentation or concealment of material facts;

    (2) Being convicted of a felony or other crime involving moral turpitude;

    (3) Being guilty of unprofessional conduct which placed the public at risk, as defined by legislative rule;

    (4) Intentional violation of a lawful order or legislative rule;

    (5) Having had a license or other authorization revoked or suspended, other disciplinary action taken, or an application for licensure or other authorization revoked or suspended by the proper authorities of another jurisdiction;

    (6) Aiding or abetting unlicensed practice; or

    (7) Engaging in an act while acting in a professional capacity which has endangered or is likely to endanger the health, welfare or safety of the public.

    (h) It is unlawful for any person subject to the provisions of this article to knowingly commit any of the following:

    (1) Employ any individual to perform the duties of an employee who has not first complied with all provisions of this article and the adopted regulations;

    (2) Falsely represent that a person is the holder of a valid license;

    (3) Make a false report with respect to any matter with which he or she is employed;

    (4) Divulge any information acquired from or for a client to persons other than the client or his or her authorized agent without express authorization to do so or unless required by law;

    (5) Accept employment which includes obtaining information intended for illegal purposes;

    (6) Authorize or permit another person to violate any provision of this article or any rule of the board adopted for this article.

    (i) For the purposes of subsection (g) of this section, disciplinary action may include:

    (1) Reprimand;

    (2) Probation;

    (3) Administrative fine, not to exceed $1,000 per day per violation;

    (4) Mandatory attendance at continuing education seminars or other training;

    (5) Practicing under supervision or other restriction;

    (6) Requiring the licensee to report to the board for periodic interviews for a specified period of time; or

    (7) Other corrective action considered by the board to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk.

§30-18-16. Procedures for hearing; right of appeal.

    (a) Hearings are governed by the provisions of article five, chapter twenty-nine-A.

    (b) An administrative law judge shall conduct the hearing.

    (c) At the conclusion of a hearing, the administrative law judge shall prepare a proposed written order containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the board so directs. The board may accept, reject or modify the decision of the administrative law judge.

    (d) The board has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

    (e) If, after a hearing, the board determines the licensee has violated any of the acts contained in subdivisions (1) through (7), subsection (g), section fifteen of this article or the rules, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

§30-18-17. Judicial review.

    Any licensee affected by a decision of the board entered after a hearing may obtain judicial review of the decision in accordance with section four, article five, chapter twenty-nine-a of this code, and may appeal any ruling resulting from judicial review in accordance with article six, chapter twenty-nine-a of this code.

§30-18-18. Criminal proceedings; penalties.

    (a) When, as a result of an investigation under this article or otherwise, the board has reason to believe that a licensee, has committed a criminal offense under this article, the board shall bring its information to the attention of an appropriate law-enforcement official.

    (b) A person violating a provision of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $10,000 or confined in jail not more than six months, or both fined and confined.

§30-18-19. Single act evidence of practice.

    In any action brought or in any proceeding initiated under this article, evidence of the commission of a single act prohibited by this article is sufficient to justify a penalty, injunction, restraining order or conviction without evidence of a general course of conduct.

§30-18-20. Action for damages.

    Any individual who is injured by a violation of the provisions of this article may bring an action for recovery of damages, including punitive damages plus reasonable attorney's fees and court costs.

§30-18-21. Grandfather provision.

    Any person who holds a valid license in this state on July 1, 2012, shall be recognized as a private detective, private investigator, security guard or security guard firm and shall be entitled to retain this status so long as the person complies with the provisions of this article.

§30-18-22. Transition from the Secretary of State to the Board of Private Security and Investigators; and Report to the Joint Committee on Government Organization.

    (a) In order to implement an orderly and efficient transition from the Secretary of State to the West Virginia Board of Private Security and Investigators, the Secretary of State and board may establish interim policies and procedures for the transfer of authority to administer and enforce this article: Provided, That any fees collected after June 30, 2012 shall be deposited in accordance with section seven of this article.

    (b) On the effective date of this article, all records necessary to effectuate the purposes of this article shall be transferred from the Secretary of State to the board: Provided, That the transfer of records provided in this subsection shall take place no later than November 1, 2012.

    (c) The board, with the assistance of other interested parties shall study the private security industry. On or before January 1, 2013, the board shall submit a report to the Joint Committee on Government Organization on the activities of the board in the administration of this article. The report shall include:

    (1) Types of licensure;

    (2) Qualifications and training of applicants, including any continuing education of licensees;

    (3) Licensure fees;

    (4) Powers and responsibilities of licensees; and

    (5) Any other statutory change.



 

    NOTE: The purpose of this bill is to transfer the authority to license private security services from the Secretary of State to the West Virginia Board of Private Security and Investigations. The bill provides for the redesignation of several sections of the article as follows:


Former Code Section

Code Section as Amended by this bill

§30-18-1

§30-18-3

§30-18-2

§30-18-8

§30-18-3

§30-18-9

§30-18-4

§30-18-10

§30-18-5

§30-18-11

§30-18-6

§30-18-12

§30-18-7

§30-18-13

§30-18-9

§30-18-14

§30-18-12

§30-18-20



    Former code §30-18-8, §30-18-10, §30-18-11 and §30-18-13 have been entirely rewritten and were not redesignated in this bill.


    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

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