Could the NC Private Protective Services Board start issuing 'temporary' private-investigator trainee permits so applicants didn't have to wait two months for the next board meeting?

Plain-English summary

The Private Protective Services Board met only every sixty days. An aspiring private investigator trainee who applied just after a Board meeting had to sit on his hands for two months before he could legally start work, and the industry told the Board it was losing qualified applicants to other professions during that wait.

The Board's response was creative: let the Administrator issue a "temporary" trainee permit on the fly, with a supervising private investigator conducting the criminal background check, employment verification, and character-reference review, then stapling a recommendation to the temporary permit application. The Administrator would then issue the temporary, valid until thirty days after the next Board meeting, when the screening committee would take over.

Senior Deputy AG Ann Reed and Special Deputy AG Douglas Johnston concluded the entire arrangement was unlawful. Three answers, all no:

The Board could not issue temporary PI trainee permits. The Private Protective Services Act gave the Administrator authority to issue temporary permits in four narrow circumstances (G.S. 74C-9(d) branch office, 74C-11(d) unarmed registration card, 74C-13(f) armed security guard 30-day, 74C-18(b) out-of-state nonresident). Trainee permits were not on that list. Under the canon expressio unius est exclusio alterius, the listing of those four implied the exclusion of others. The Board needed new legislation, not creative interpretation.

Even if the Board had that authority, it could not delegate it to the Administrator. G.S. 74C-8(f) provided that the Administrator submits the application and "his recommendations" to the Board, and "the Board shall determine whether to approve or deny the application for a license." The Administrator could only recommend; the Board had to decide. That specificity left no room to imply a delegation power.

The Board absolutely could not delegate the background check to a supervising private investigator. Background investigation is core to the Board's licensing duty. The Administrator could delegate aspects of an investigation to staff, but extending that to private parties with potential conflicts of interest (the supervising PI presumably wanted to hire the trainee) was beyond the pale. The opinion cited Am Jur. on the heightened caution required when delegations run to interested private parties.

The opinion was a polite rejection of an end-run. The takeaway: if the Board wanted faster trainee onboarding, it needed to ask the legislature for express statutory authority.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Private Protective Services Act has been amended several times since 1999, and the Board's procedures for trainee permits may have changed. The general analysis here (about expressio unius, the limits on administrative delegation, and the suspicion attached to delegations to interested private parties) remains good statutory-construction doctrine. Anyone applying this opinion to current PPSB practice should check the current text of Chapter 74C and the 12 NCAC 7D rules.

Common questions

Q: What did expressio unius est exclusio alterius mean here?
A: A Latin canon of statutory construction: when the legislature expressly lists items, items not listed are presumed excluded. Because the Act named four specific temporary-permit situations and did not mention trainee permits, the AG read that silence as deliberate.

Q: Can a licensing board ever delegate licensing decisions?
A: Yes, in general. Boards routinely delegate administrative functions to staff with appropriate standards and guidelines. The Private Protective Services Act was unusual in spelling out specifically that the Administrator submits the application and "recommendations," and the Board "determines" approval or denial. That level of specificity in the statute left no implied delegation room.

Q: Why was the supervising-PI delegation worse?
A: The supervising private investigator who would conduct the background check on the trainee had a direct interest in the outcome. He wanted the trainee to start working under him, billable. Letting an interested private party serve as the licensing investigator was a conflict the AG flagged with "extreme caution" language from Am. Jur.

Q: Could the Administrator delegate background-check tasks at all?
A: To staff, yes, with appropriate retention of final reviewing authority and close scrutiny. To outside private parties, only with extreme caution and only where objectivity could be reasonably ensured, which was not the case here.

Q: What was the actual fix?
A: Legislation. The opinion told the Board that "specific legislation would be required to authorize a temporary permit in the circumstances you describe." That's the standard answer when an agency wants authority the legislature has not granted: ask for the statute.

Background and statutory framework

The Private Protective Services Act (Chapter 74C of the General Statutes) creates a Private Protective Services Board within the Department of Justice and authorizes it to license private investigators, security guards, polygraph examiners, and related professionals. The Act distinguishes between "licenses" (for principals) and "trainee permits" (for individuals with less than 3,000 hours of investigative experience in the prior ten years, working under a licensed PI).

The Board meets bimonthly. The screening committee reviews applications and recommends action, then the full Board acts at its next meeting. For experienced applicants this works fine; for green trainees waiting to start their first paid investigative work, the wait was a hurdle.

The four explicit temporary-permit authorities in the Act (branch office, unarmed registration card, 30-day armed security guard pending firearms training, out-of-state nonresident for a specific case) shared a common feature: they all came after some preliminary fact-check the Administrator had already completed under specific statutory delegation. The trainee context was different: no Board vetting yet, just an industry-supplied report.

The opinion read these features together. The four enumerated authorities marked the boundary of what the Board could do without new legislation. Trainee permits sat outside that boundary.

Citations

• N.C. Gen. Stat. § 74C-2 (verified application to the Board)
• N.C. Gen. Stat. § 74C-3(a)(8) (application requirements)
• N.C. Gen. Stat. § 74C-5(2), (5) (Board rulemaking; conditioning licenses)
• N.C. Gen. Stat. § 74C-6 (Administrator's duties: administer Board directives)
• N.C. Gen. Stat. § 74C-8(b)(7), (d), (f) (trainee applications; background investigations; Administrator recommendations, Board decisions)
• N.C. Gen. Stat. § 74C-9(d), 74C-11(d), 74C-13(f), 74C-18(b) (the four temporary-permit authorities)
• 12 NCAC 7D §§ .0200, .0401(a)(1), .0704, .1100 (Board rules on trainee requirements and supervision)
• State v. Hart, 287 N.C. 76, 213 S.E.2d 291 (1975) (intent of legislature controls)
• State ex rel. N.C. Milk Comm'n v. National Food Stores, Inc., 270 N.C. 323, 154 S.E.2d 548 (1967) (statutory construction looks to language, spirit, and purpose)
• Southern Bell Tel. & Tel. Co. v. Clayton, 266 N.C. 687, 147 S.E.2d 195 (1966) (words given ordinary meaning at time of enactment)

Source

• Landing page: https://ncdoj.gov/opinions/temporary-permits/

Original opinion text

• Whether the Board has the authority to issue a temporary private investigator trainee permit.
• Whether the Board may delegate authority to the Administrator to issue a temporary private investigator trainee permit.
• Whether the Board may delegate authority to a supervising private 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. Industry representatives report that many qualified individuals are being lost to other professions 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 supervising private investigator, the Administrator issues a temporary private investigator trainee permit if the Administrator finds that the applicant meets the standards for favorable recommendation/action by the screening committee. The permit expires thirty (30) days after the 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:

• An applicant with 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).
• 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).
• Upon receipt of an application, the Board shall conduct a background investigation during the course of which the applicant shall be required to show that he meets certain specified qualifications. G.S. § 74C-8(d).
• 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. G.S. § 74C-8(b)(7).
• Pursuant to G.S. § 74C-5(2), the Board has adopted 12 NCAC 7D § .0200 to address specific requirements for trainee permits.
• 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 for the Administrator to issue a temporary permit exists in the following situations:

• G.S. § 74C-9(d) — the Administrator may issue a temporary branch office permit;
• G.S. § 74C-11(d) and 12 NCAC 7D .0704 — the Administrator may issue unarmed registration cards upon receipt of all information required to be submitted;
• 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
• 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 administrative officer with appropriate standards and guidelines (See, Am Jur.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 legislative authority for issuance of a temporary 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 criminal background check, verify previous employment, check character references and submit 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 parties whose objectivity may be questioned on grounds of conflict of interest. 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