1297 DOS 08
STATE OF NEW YORK
DEPARTMENT OF STATE
OFFICE OF ADMINISTRATIVE HEARINGS
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In the Matter of the Complaint of
DEPARTMENT OF STATE
DIVISION OF LICENSING SERVICES,
Complainant, DECISION
-against-
JAMES KELLY,
Respondent.
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The above noted matter came on for hearing before the undersigned, Ziedah F. Giovanni, on August 28, 2008 at the office of the Department of State located at 123 William Street, New York, New York.
James Kelly, having been advised of his right to be represented by an attorney, chose to represent himself.
The Division of Licensing Services (hereinafter "DLS") was represented by Supervising Investigator, William Schmitz.
COMPLAINT
The complaint alleges the respondent’s security guard registration should be suspended or revoked because of a criminal conviction.
FINDINGS OF FACT
1) Notice of hearing together with a copy of the complaint was delivered by certified mail on June 21, 2008 to the respondent at the address that appears in the records of the Department of State. That mailing was returned unclaimed. On June 13, 2008, the complainant sent to the applicant, by first class mail, a notice of hearing and complaint that was not returned by the Postal Service.
2) The respondent is a registered security guard for the period of May 27, 2007 to May 26, 2009. (State’s Ex. 1)
3) On December 18, 2007, the respondent plead guilty to a violation of PL 175.30, offering a false instrument for filing in the second degree, a class A misdemeanor. (State’s Ex. 1)
4) The conviction arose out the following circumstances: While applying for a security guard position at JFK International Airport, through a security guard agency familiar with his criminal record, the respondent falsely represented that he had no prior convictions. The respondent testified that answering the conviction question incorrectly was the result of oversight on his part, and not a deliberate attempt to deceive anyone. He testified there were a lot of questions on the application, and admitted he did not pay close enough attention. The respondent previously admitted his conviction in the application of the security agency that referred him to JFK, and they had not expressed any concerns about placing him with his criminal record.
5) By application dated March 6, 2005, when the applicant applied for registration as a security guard, he answered, truthfully, “yes” to the question, “Have you ever been convicted in this state or elsewhere of any criminal offense that is a misdemeanor or a felony?” (State's Ex. 4)
6) The respondent provided the tribunal with a recommendation letter from the Executive Account Manager of his most recent employer, U.S. Security Associates, who he had been working for, without misconduct, since January 12, 2006. U.S. Security Associates is aware of the applicant’s criminal record, and described Mr. Kelly as “one of the best employees,” and as “punctual, courteous, and responsible....” (Resp. Ex. A)
OPINION AND CONCLUSIONS OF LAW
Pursuant to GBL §89-l[2], the registration of a security guard may be revoked or suspended if, among other things, that security guard has been convicted of a crime which bears such a relationship to the performance of the duties of a security guard as to constitute a bar to employment, or the employment of the registrant as a security guard constitutes a danger to the health, safety or well-being of the public.
In weighing whether the registration should be revoked or suspended, it is not necessary to consider the provisions of Correction Law Article 23-A, which "by its terms applies only to the 'application' for a license by a person previously convicted of a crime...; it has no bearing on disciplinary proceedings against persons already licensed." Mosner v Ambach, 66 AD2d 912, 410 NYS2d 937, 938 (1978); Matter of Glucksman, 57 AD2d 205, 394 NYS2d 191 (1977); Pisano v McKenna, 120 Misc.2d 536, 466 NYS2d 231 (Supreme Ct. Oneida County, 1983).
The respondent was convicted of a crime which is directly related to the duties of a security guard, a person who: protects individuals and/or property from harm, theft or other unlawful activity; deters, observes, detects and/or reports incidents in order to prevent unlawful or unauthorized activity; patrols on the street; and responds to security alarms. Having heard and observed the respondent’s testimony, I find his explanation to be credible. The respondent was forthcoming about his use of poor judgement in filling out his application hastily. In light of the fact that he revealed his convictions to both the Department of State and the security guard agency he was working for at the time of his arrest, I find, that his continued registration and employment as a security guard would not constitute a danger to the safety and well-being of the public.
DETERMINATION
WHEREFORE, IT IS HEREBY DETERMINED THAT the complaint is dismissed.
Ziedah F. Giovanni
Administrative Law Judge
Dated: October 1, 2008