2251 DOS 07
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Application of
KYLE P. SABO DECISION
For as a License as a Home Inspector
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The above noted matter came on for hearing before the undersigned, Roger Schneier, on November 28, 2007 at the office of the Department of State located at 123 William Street, New York, New York.
The applicant was present and was represented by Dennis M. Lemke, Esq., 114 Old Country Road, Mineola, New York 11501.
The Division of Licensing Services (hereinafter "DLS") was represented by Attorney Trainee David Mossberg.
ISSUE
The issue before the tribunal is whether the applicant’s application for a license as a Home Inspector should be denied because of a prior criminal conviction.
FINDINGS OF FACT
1) On February 22, 2007 the applicant applied for a license as a Home Inspector (State’s Ex. 3).
2) On April 20, 2006 the applicant pled guilty to charges of Sodomy in the 3rd degree, Penal Law §130.20, a class E felony (3 counts), Rape in the 3rd degree, Penal Law §130.25, a class E felony, and Endangering the Welfare of a Child, Penal Law §260.10, a class A misdemeanor (2 counts). On June 9, 2006 he was sentenced to ten years probation (State’s Ex. 5). He was granted a Certificate of Relief From Disabilities on February 14, 2007 (State’s Ex. 4).
3) At the time of the criminal acts the applicant was twenty three years old.
4) The conviction arose out the applicant’s having sexual relations with a fifteen year old female who had been his student at the school at which he was employed as a teacher which relations would have been consensual but for the age of the female.
5) The applicant, who has an undergraduate degree in medieval history and a master’s degree in foundations of education, is currently studying for a Ph.D. in American history at Lehman College of the City University of New York. He is employed as the human resources manager at Galaxy Transportation, a para-transit company. His family has a history of involvement in the building industry, and he seeks to re-start his career in that field. His Probation Officer is supportive of the application.
6) By letter dated April 11, 2007 the applicant was advised by DLS that it proposed to deny his application because the fact of his conviction indicates that the issuance of the license would create an unreasonable risk to property or to the safety or welfare of specific individuals or to the general public, and that he could request a hearing, which Mr. Lemke did on his behalf by letter dated April 30,2007. Accordingly, the matter having been referred to this tribunal on August 20, 2007, notice of hearing was served by certified mail on September 18, 2007 (State’s Ex. 1 and 2).
OPINION
I- An application for a license as a Home Inspector is regulated by Real Property Law (RPL)
Article 12-B. RPL §444-e sets forth the qualifications for licensure, which involve educational and experiential standards and require the passing of an examination and the payment of a fee. There is no reference in that section to issues of morals, trustworthiness, or a risk to the public. RPL §444-h sets forth the standards upon which an application may be denied, and it too makes no reference to morals, trustworthiness, or risk to the public, except for allowing for the denial of an application where the applicant has been convicted of a felony involving fraud, theft, perjury or bribery (RPL §444-h[1][f]).
The applicant has been convicted of three crimes, two of which are felonies. However none of them involved fraud, theft, perjury or bribery. As the Legislature and Governor saw fit to limit the grounds for denial of an application for a license as a Home Inspector to convictions of a limited class of crimes and not to provide for an evaluation of the applicant’s general trustworthiness, DLS may not deny an application because of a conviction of some other crimes or crimes on the basis that the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individual or to the general public (State’s Ex. 1).
II- Should RPL Article 12-B be interpreted as allowing denial of an application for a license as a Home Inspector because of the convictions, it would be it is necessary to consider together the provisions of that law and the provisions of Correction law Article 23-A. See, Codelia v Department of State, No. 29114/91 (Supreme Court, NY County, May 19, 1992).
Article 23-A of the Correction Law imposes an obligation on licensing agencies
"to deal equitably with ex-offenders while also protecting society's interest in assuring performance by reliable and trustworthy persons. Thus, the statute sets out a broad general rule that...public agencies cannot deny...a license to an applicant solely based on status as an ex-offender. But the statute recognizes exceptions either where there is a direct relationship between the criminal offense and the specific license...sought (Correction Law §752[1]), or where the license...would involve an unreasonable risk to persons or property (Correction Law §752[2]). If either exception applies, the employer (sic) has discretion to deny the license...." Matter of Bonacorsa, 71 N.Y.2d 605, 528 N.Y.S.2d 519, 522 (1988).
In exercising its discretion, the agency must consider the eight factors contained in Correction Law §753[1].
"The interplay of the two exceptions and §753[1] is awkward, but to give full meaning to the provisions, as we must, it is necessary to interpret §753 differently depending on whether the agency is seeking to deny a license...pursuant to the direct relationship exception...or the unreasonable risk exception.... Undoubtedly, when the...agency relies on the unreasonable risk exception, the eight factors...should be considered and applied to determine if in fact an unreasonable risk exists.... Having considered the eight factors and determined that an unreasonable risk exists, however, the...agency need not go further and consider the same factors to determine whether the license...should be granted....§753 must also be applied to the direct relationship exception...however, a different analysis is required because 'direct relationship' is defined by §750[3], and because consideration of the factors contained in §753[1] does not contribute to determining whether a direct relationship exists. We read the direction of §753 that it be applied '(i)n making a determination pursuant to section seven hundred fifty-two' to mean that, notwithstanding the existence of a direct relationship, an agency...must consider the factors contained in §753, to determine whether...a license should, in its discretion, issue." Bonacorsa, supra, 528 N.Y.S.2d at 523.
A direct relationship is one wherein the offense bears directly on the applicant's ability or fitness to perform one or more of the duties or responsibilities necessarily related to the license, Correction Law §750[3]. There is no statutory definition of "unreasonable risk" which "depends upon a subjective analysis of a variety of considerations relating to the nature of the license...and the prior misconduct." Bonacorsa, supra, 528 N.Y.S.2d at 522.
"A direct relationship can be found where the applicant's prior conviction was for an offense related to the industry or occupation at issue (denial of a liquor license warranted because the corporate applicant's principal had a prior conviction for fraud in interstate beer sales); (application for a license to operate a truck in garment district denied since one of the corporate applicant's principals had been previously convicted of extortion arising out of a garment truck racketeering operation), or the elements inherent in the nature of the criminal offense would have a direct impact on the applicant's ability to perform the duties necessarily related to the license or employment sought (application for employment as a traffic enforcement agent denied; applicant had prior convictions for, inter alia, assault in the second degree, possession of a dangerous weapon, criminal possession of stolen property, and larceny)." Marra v City of White Plains, 96 A.D.2d 865 (1983) (citations omitted).
While the issuance of a Certificate Of Relief From Disabilities creates a presumption of rehabilitation, as explained by the Court in Bonacorsa, that presumption is only one factor to be considered along with the eight factors set forth in Correction Law §753[1] in determining whether there is an unreasonable risk or, if a determination has already been made that there is a direct relationship, in the exercise by the agency of its discretion. Hughes v Shaffer, 154 AD2d 467, 546 NYS2d 25 (1989).
"The presumption of rehabilitation which derives from...a certificate of relief from civil disabilities, has the same effect, however, whether the...agency seeks to deny the application pursuant to the direct relationship exception or the unreasonable risk exception. In neither case does the certificate establish a prima facie entitlement to the license. It creates only a presumption of rehabilitation, and although rehabilitation is an important factor to be considered by the agency...in determining whether the license...should be granted (see §753[1][g]), it is only one of the eight factors to be considered." Bonacorsa, supra, 528 NYS2d at 523.
In determining whether there is a direct relationship between the crimes of which the applicant was convicted, and registration as a security guard, it is first necessary to consult the definition of "Home Inspector" in RPL §444-b. A Home Inspector is a person who inspects the physical structure and systems of residential buildings. Obviously, in the course of such inspections the inspector must have access to all parts of the residence. While the applicant testified that there would be very little chance that he would be alone in a house with a minor, a contention which is reasonable considering that when such inspections are made the home owner would normally wish to be present, there is some, at least slight, possibility of it happening. Therefore, there is a direct relationship between the crimes of which the applicant was convicted under the Penal Law and a license as a Home Inspector.
There being a direct relationship, it is necessary to consider the factors set forth in Correction Law §753.
The pertinent duties and responsibilities of a Home Inspector (§753[1][b]) have already been discussed in regards to the question of direct relationship. The fact that the applicant was convicted of crimes directly related to those duties leads a negative inference regarding his fitness to perform those duties and to meet those responsibilities (§753[1][c]).
About four years have passed since the commission of the crimes (§753[1][d]), which occurred when the applicant was approximately twenty three years old (§753[1][e]).
The seriousness of the crimes (§753[1][f]) is emphasized by the facts that two of them were felonies and that the applicant’s conduct involved harm to a minor.
In the applicant's favor is the public policy of encouraging licensure of ex-offenders (§753[1][a]) and his employment and educational pursuits after the conviction, as well as the numerous letters of reference submitted on his behalf (State’s Ex. 6) (§753[1][.
All of the above must be considered in the light of the legitimate interest of DLS in the protection of the safety and welfare of the public (§753[1][h]).
The weighing of the factors is not a mechanical function and cannot be done by some mathematical formula. Rather, as the Court of Appeals said in Bonacorsa, it must be done through the exercise of discretion to determine whether the direct relationship between the "convictions and the license has been attenuated sufficiently." Bonacorsa, supra, 528 NYS2d at 524.
The applicant was convicted of serious crimes. However, considering the circumstances of the crimes and the applicant’s subsequent conduct, and having heard and observed his testimony which impressed me with his seriousness and apparently sincere intent to re-build his career after what can only be characterized as an enormously stupid mistake, and considering that he will be on probation until 2016 unless it is terminated early for good conduct and that he can expect, therefore, that any serious unlawful conduct will result in his incarceration, I find that the issuance to him of a license as a Home Inspector would not endanger the public.
CONCLUSIONS OF LAW
1) The applicant has not been convicted of the type of crimes which may pursuant to RPL §444-h[1][f] serve as grounds for the denial of his application.
2) After having given due consideration to the factors set forth in Correction Law §753 and to the requirements of GBL §89-h[5], and having weighed the rights of the applicant against the rights and interests of the general public, it is concluded that the applicant has established that his criminal conviction would not cause the issuance to him of a license as a Home Inspector to involve such an unreasonable risk to the safety and welfare of the general public as to warrant denial of his application. GBL §89-k.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT, pursuant to Real Property Law §444-h, that the application of Kyle P. Sabo for a license as a Home Inspector is granted.
Roger Schneier
Administrative Law Judge
Dated: December 7, 2007